Execution Copy
CREDIT AGREEMENT
Dated as of November 5, 1997
among
CENTRAL VERMONT PUBLIC SERVICE CORPORATION,
THE LENDERS NAMED HEREIN
and
TORONTO DOMINION (TEXAS), INC.,
as Agent
CREDIT AGREEMENT, dated as of November 5, 1997, among CENTRAL VERMONT
PUBLIC SERVICE CORPORATION, a Vermont corporation (the "Borrower"), each of
the lenders that is a signatory hereto or which, pursuant to Section 10.6
hereof shall become a "Lender" hereunder (the "Lenders"), FLEET NATIONAL
BANK, as Syndication Agent, and TORONTO DOMINION (TEXAS), INC., as agent
for the Lenders hereunder (the "Agent").
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by each of the parties hereto, the parties
hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"ABR" shall mean, for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime
Rate in effect on such day or (b) the sum of (i) the Federal Funds
Effective Rate in effect on such day plus (ii) .50%. For purposes hereof,
"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 the reference rate for the determination of interest rates for loans in
Dollars of varying maturities to customers of varying creditworthiness and
being quoted as its "prime rate" or "base rate" (the Prime Rate not being
intended to be the lowest rate of interest charged by The Toronto-Dominion
Bank in connection with extensions of credit), and "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 published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which 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
the Agent. Any change in the ABR due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective as of the opening of
business on the effective day of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"ABR Loans" shall mean any Revolving Loan bearing interest at a rate
determined by reference to the ABR.
"Administrative Questionnaire" means, with respect to each Lender, an
administrative questionnaire in the form prepared by the Agent and
submitted to the Agent (with a copy to the Borrower and the Agent) duly
completed by such Lender.
"Affiliate" shall mean, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. For purposes of this definition,
"control" with respect to any Person means the power, directly or
indirectly, to direct or cause the direction of the management and policies
of such Person, whether by contract or otherwise.
"Agency Fee" shall mean the agency fee payable by the Borrower to the
Agent pursuant to the Fee Letter.
"Agent" shall mean Toronto Dominion (Texas), Inc., a Delaware
corporation, in its capacity as Agent hereunder, and any successor Agent
named pursuant to Section 9.9.
"Aggregate Commitment" shall mean as of any date, the aggregate
Commitment of all Lenders.
"Agreement" shall mean this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Applicable Lending Office" means, with respect to any Lender, (i) in
the case of its Domestic Loans, its Domestic Lending Office, (ii) in the
case of its Eurodollar Loans, its Eurodollar Lending Office, and (iii) in
the case of its Auction Borrowings its Domestic Lending Office.
"Applicable Margin" shall mean, for each Eurodollar Loan, the
applicable rate per annum set forth below based on the respective Debt
Rating:
Debt Rating Applicable Margin
----------- -----------------
BB (or lower) 0.75%
BB+ 0.50%
BBB- 0.30%
BBB 0.225%
BBB+ 0.185%
A- 0.15%
A (or higher) 0.125%
"Assignee" shall have the meaning specified in Section 10.6(c).
"Auction Advance" means an advance by a Lender to the Borrower as part
of an Auction Borrowing resulting from the auction bidding procedure
described in Section 3.1.
"Auction Borrowing" means a borrowing consisting of simultaneous
Auction Advances from each of the Lenders whose offer to make one or more
Auction Advances as part of such borrowing has been accepted by the
Borrower under the auction bidding procedure described in Section 3.1.
"Auction Note" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Schedule 7 hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from
an Auction Advance made by such Lender.
"Available Commitment" shall mean, as to any Lender at any time, an
amount equal to the excess, if any, of (a) such Lender's Commitment over
(b) the aggregate principal amount of all Loans made by such Lender then
outstanding.
"Borrower" shall have the meaning specified in the first paragraph
hereof.
"Borrower's Senior Debt" shall mean the First Mortgage Bonds.
"Borrowing Date" shall mean any Business Day specified in a notice
pursuant to Section 2.2 or 3.1, as applicable, as a date on which the
Borrower requests the Lenders to make Loans hereunder.
"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which commercial banks in New York City or Houston, Texas are
authorized or required by law to close; provided, however, that, when used
in connection with a Eurodollar Loan, the term "Business Day" shall exclude
any day on which banks are not open for dealings in Dollar deposits in the
London interbank market.
"Change of Control" means any of the following:(a) any person or group
of persons (within the meaning of the Exchange Act) shall have the acquired
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the
SEC under the Exchange Act) of 20% or more of the issued and outstanding
shares of capital stock of the Borrower having the right to vote for the
election of directors of the Borrower under ordinary circumstances; (b)
during any period of twelve consecutive calendar months, individuals who at
the beginning of such period constituted the board of directors of the
Borrower (together with any new directors whose nomination for election by
the stockholders of the Borrower was approved by a vote of at least two-
thirds of the directors then still in office who either were directors at
the beginning of such period or whose elections or nomination for election
was previously so approved) cease for any reason other than death or
disability to constitute a majority of the directors then in office; or (c)
the Borrower shall cease to own and control all of the economic and voting
rights associated with all of the outstanding capital stock (or the
equivalent equity interest) of each of its Subsidiaries (including
Catamount Energy Corporation), except any such capital stock (or the
equivalent equity interest) held directly or indirectly by Catamount Energy
Corporation.
"Closing Date" shall mean the date on which the conditions precedent
set forth in Section 5.1 shall be satisfied.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment" shall mean, as to any Lender, the obligation of such
Lender to make Loans in an aggregate amount at any one time outstanding not
to exceed the amount set forth opposite such Lender's name on Schedule 1.
"Commitment Percentage" shall mean, as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the Aggregate
Commitment(or, at any time after the Commitments shall have expired or
terminated, the percentage which the aggregate principal amount of such
Lender's Loans then outstanding constitutes of the aggregate principal
amount of the Loans then outstanding).
"Commitment Period" shall mean the period from and including the date
hereof to but not including the Maturity Date or such earlier date on which
the Commitments shall terminate as provided herein.
"Consolidated Leverage Ratio" shall mean the ratio of Total
Indebtedness to Total Capitalization of the Borrower and its Consolidated
Subsidiaries.
"Consolidated Subsidiaries" shall mean the wholly-owned Subsidiaries
of the Borrower.
"Debt Rating" shall mean the rating (or the equivalent) of the
Borrower's Senior Debt by any two of the Rating Agencies, so long as at
least one of the two is Standard & Poor's; provided that if a corporate
credit rating (CCR in the case of Standard & Poor's) or unsecured long term
debt rating is available from Standard & Poor's and at least one other
Rating Agency, then "Debt Rating" shall mean such rating (or the
equivalent) and the higher of such debt rating shall be used in determining
the fee set forth in Section 2.3.
"Default" shall mean any condition or event that constitutes an Event
of Default or that with notice or lapse of time or both would, unless cured
or waived, constitute an Event of Default.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America.
"Domestic Lending Office" means, as to each Lender, its office located
at its address in the United States set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Domestic Lending Office) or such other office as such Lender may hereafter
designate as its Domestic Lending Office by notice to the Borrower and the
Agent.
"Domestic Loan" means ABR Loans.
"Duff & Xxxxxx" shall mean Duff & Xxxxxx, Inc. or any successor
thereto.
"Employee Benefit Plan" shall mean an employee benefit plan within the
meaning of ERISA Section 3(3) maintained, sponsored or contributed to by
the Borrower or any ERISA Affiliate.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414(b)
of the Code) as the Borrower, or is under common control (within the
meaning of Section 414(c) of the Code) with the Borrower.
"Eurocurrency Reserve Percentage" shall mean for any day as applied to
a Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on such
day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve System or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities"
in Regulation D of such Board) maintained by a member bank of such System.
"Eurodollar Base Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/100 of 1%) equal to (a) LIBOR in
effect for such Interest Period divided by (b) one minus the Reserve
Percentage. For purposes hereof, the term "LIBOR" shall mean the rate per
annum determined by the Agent as follows: (i) two Business Days prior to
the commencement of such Interest Period, the Agent shall obtain the
offered quotation(s) for U.S. Dollar deposits for a period comparable to
such Interest Period that appear on the Xxxxxx'x Screen as of 11:00 a.m.,
London time, and if at least two such offered quotations appear on the
Xxxxxx'x screen, LIBOR shall be the arithmetic average (rounded up to the
nearest 1/100th of 1%) of such offered quotations, as determined by the
Agent; and (ii) if the Agent is not able to obtain quotations for the
determination of LIBOR pursuant to clause (i) above, LIBOR shall be the
rate per annum which the Agent in good faith determines to be the
arithmetic average (rounded as aforesaid) of the offered quotations for
U.S. Dollar deposits in an amount comparable to the Agent's share of the
relevant amount in respect to which LIBOR is being determined for a period
comparable to the relevant Interest Period that leading banks in New York
City selected by the Agent are quoting at 11:00 a.m., New York City time,
two Business Days prior to the commencement of such Interest period in the
New York interbank market to major international banks.
"Eurodollar Lending Office" shall mean, as to each Lender, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Eurodollar Lending Office) or such office, branch or affiliate of such
Lender as it may hereafter designate as Eurodollar Lending Office by notice
to the Borrower and the Agent.
"Eurodollar Loans" shall mean any Revolving Loan bearing interest at a
rate determined by reference to the Eurodollar Rate.
"Eurodollar Rate" shall mean with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula (rounded
upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
--------------------
1.00 - Eurocurrency Reserve Percentage
"Event of Default" shall mean any of the events specified in Article
VIII.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Existing Letter of Credit Agreements" shall mean (i) that certain
Letter of Credit and Reimbursement Agreement dated as of November 1, 1994
between the Borrower and the Agent, as amended; (ii) that certain Amended
and Restated Reimbursement Agreement, dated as of September 24, 1992
between the Borrower and the Agent, as amended; and (iii) that certain
Reimbursement Agreement dated as of April 29, 1993 between the Borrower and
the Agent as amended.
"Federal Funds Effective Rate" shall have the meaning specified in the
definition of "ABR".
"Fee Letter" shall mean the letter, dated the Closing Date, from the
Agent addressed to and accepted by the Borrower.
"Fees" shall mean, collectively, the fees referred to in Sections
2.3(a), 2.3(b) and 2.3(c).
"Financing Lease" shall mean any lease of property, real or personal,
the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the lessee.
"First Mortgage Bonds" means the first mortgage bonds of the Borrower
issued and delivered under (i) the Indenture of Mortgage dated as of
October 1, 1929, between the Borrower and State Street Bank and Trust
Company, as successor trustee to The First National Bank of Boston, as
successor trustee to Old Colony Trust Company, as heretofore and hereafter
amended and supplemented and (ii) any other mortgage, secured indenture or
deed of trust existing on the Closing Date as the same may be heretofore
and hereafter amended and supplemented.
"Fitch" shall mean Fitch Investors Service, L.P. or any successor
thereto.
"GAAP" shall mean generally accepted accounting principles in the
United States of America in effect from time to time.
"Governmental Approvals" shall mean an authorization, consent,
approval, license or exemptions of, registration, or filing with, or report
to, any Governmental Authority.
"Governmental Authority" shall mean any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of
or pertaining to government.
"Indebtedness" shall mean with respect to any Person at any date, the
aggregate of (i)(a) all indebtedness of such Person for borrowed money or
for the deferred purchase price of property or services (other than current
trade liabilities incurred in the ordinary course of business and payable
in accordance with customary practices), (b) any other indebtedness of such
Person which is evidenced by a note, bond, debenture or similar instrument,
and (c) all obligations of such Person under Financing Leases, less (ii)
any such Indebtedness that is non-recourse to the Borrower.
"Interest Payment Date" shall mean (a) as to any ABR Loan, the last
day of each March, June, September and December to occur while such Loan is
outstanding, (b) as to any Eurodollar Loan or Auction Borrowing having an
Interest Period of three months or less, the last day of such Interest
Period, and (c) as to any Eurodollar Loan or Auction Borrowing having an
Interest Period longer than three months, each day which is three months,
or a whole multiple thereof, after the first day of such Interest Period,
and the last day of such Interest Period.
"Interest Period" shall mean (i) with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurodollar Loan and ending
one, two, three, six, nine and, if available, twelve months thereafter, as
selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending
one, two, three, six, nine and, if available, twelve months thereafter, as
selected by the Borrower by irrevocable notice to the Agent not less than
three Business Days prior to the last day of the then current Interest
Period with respect thereto;
provided that, the foregoing provisions relating to Interest Periods
are subject to the following:
(1) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
(2) any Interest Period that would otherwise extend beyond the
Maturity Date shall end on the Maturity Date; and
(3) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month.
"Lenders" shall have the meaning specified in the first paragraph
hereof.
"LIBOR" shall have the meaning specified in the definition of
"Eurodollar Base Rate."
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any Financing Lease having substantially the same
economic effect as any of the foregoing).
"Loan" shall mean as to any Lender the amount from time to time
advanced hereunder by such Lender to the Borrower pursuant to the
Commitments as either a Revolving Loan or an Auction Borrowing.
"Loan Borrowing Certificate" shall have the meaning specified in
Section 5.2(c).
"Loan Documents" shall mean this Agreement, the Notes, the Loan
Borrowing Certificates, the Fee Letter and any other document or agreement
executed in connection herewith or contemplated hereby.
"Maturity Date" shall mean 364 days from the Closing Date, unless
extended as provided in Section 2.6(b) or Section 2.6(c), in which case the
Maturity Date shall mean the third, fourth or fifth anniversary of the
Closing Date, as the case may be.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or any successor
thereto.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Notes" shall mean the Revolving Loan Notes or any Auction Notes.
"Notice of Auction Borrowing" shall have the meaning set forth in
Section 3.1(a)(i), and to the extent such notice is given in writing, shall
be in a form substantially similar to Schedule 5 hereto.
"Notice to Borrower of Auction Offer" shall have the meaning set forth
in Section 3.1(a)(ii).
"Participant" shall have the meaning specified in Section 10.6(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Pension Plan" shall mean, at any time, any Employee Benefit Plan
(including a Multiemployer Plan), the funding requirements of which (under
ERISA Section 302 or Code Section 412) are, or at any time within the six
years immediately preceding the time in question, were in whole or in part,
the responsibility of the Borrower or an ERIS Affiliate.
"Permitted Liens" shall mean:
(a) Liens securing the Borrower's Senior Debt;
(b) Purchase money Liens or purchase money security interests upon or
in any property acquired or held by the Borrower or any Subsidiary in the
ordinary course of business to secure the purchase price of such property
or to secure indebtedness incurred solely for the purpose of financing the
acquisition of such property;
(c) Liens or security interests existing on the property described in
the immediately preceding subsection (b) property at the time of its
acquisition;
(d) Liens, security interests, charges or encumbrances on or over the
Borrower's joint ownership interests in the Millstone #3 nuclear generating
facility, the Xxxxxx X. XxXxxx Plant and the Highgate Interconnection
Facility or any portion thereof, or any facilities or properties associated
with such generating and transmission facilities or nuclear fuel or other
fuel, in any stage, for use in or with such facilities;
(e) Including those granted by the Borrower pursuant to that certain
Receivables Purchase Agreement dated as of November 29, 1988 between the
Borrower and BankBoston, N.A.,as successor to The First National Bank, as
now or hereafter amended from time to time (such being Permitted Liens
hereunder), security interests granted in, or sale of, the Borrower's
accounts receivable, provided that such security interests secure only new
debt incurred at substantially the same time as the creation of such
security interests and provided, further, that any such sale is made only
for new consideration given at substantially the same time as the making of
such sale;
(f) A second mortgage granted on the property subject to the
Borrower's Senior Debt;
(g) Sales or transfers of property by the Borrower and the subsequent
renting or leasing of such property; provided that the book value of all
such property in the aggregate does not exceed fifteen percent (15%) of the
book value of the Borrower's total assets;
(h) Liens on all or any part of the Borrower's or its Subsidiaries'
assets or undertakings employed wholly or primarily in, or arising directly
from, any individual energy-related investment or project to secure (A) an
obligation of the Borrower or (B) an obligation of a Subsidiary of the
Borrower which is non-recourse to the Borrower, as the case may be,
incurred for the purpose of financing all or any part of such energy-related
investment or project;
(i) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's, and repairmen's Liens and other similar Liens arising
in the ordinary course of business securing obligations which are not
overdue for a period of more than thirty (30) days or which are being
contested in good faith in an appropriate forum the aggregate amounts of
which do not exceed $50,000;
(j) The interest of the Citizens Bank New Hampshire, formerly known as
First NH Bank, following approval of the New Hampshire Public Utilities
Commission, in a so-called restricted cash collateral account of the
Borrower's New Hampshire subsidiary, Connecticut Valley Electric Company,
Inc., upon the occurrence of an event of default under the $3.75 million
Loan Agreement, dated December 27, 1994, as amended pursuant to an
Amendment thereto dated as of June 17, 1996, each between Citizens Bank New
Hampshire, formerly known as First NH Bank and Connecticut Valley Electric
Company, Inc., and as the same may be extended or renewed.
"Person" shall mean an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, limited liability company, Governmental Authority or other entity
of whatever nature.
"Prime Rate" shall have the meaning specified in the definition of
"ABR".
"Rating Agencies" shall mean Duff & Phelps, Fitch, Moody's or Standard
& Poor's.
"Reportable Event" shall have the meaning set forth in Title IV of
ERISA.
"Required Lenders" shall mean, at any time, Lenders the Commitment
Percentages of which aggregate at least 64 1/2%, provided, however, that in
case any Lender shall have become a non-performing Lender as defined in
Section 2.5(b) hereof, such aggregate percentage shall be determined by
subtracting the Commitment Percentage of the Lender (the "Largest Lender")
having the largest Commitment Percentage from 99.5%. The foregoing
notwithstanding, however, if the Commitment Percentage of the Largest
Lender shall be greater than 50%, the Largest Lender alone may constitute
the Required Lenders.
"Requirement of Law" shall mean, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer" shall mean the Chief Financial Officer, the
President, the Treasurer, an Assistant Treasurer, any Vice President in
charge of financial or accounting matters or the principal accounting
officer of the Borrower or any employee authorized by the Chief Financial
Officer, the President or the Treasurer of the Borrower pursuant to a
letter to the Agent in substantially the form of Schedule 6 hereto.
"Revolving Loans" shall have the meaning specified in Section 2.1.
"Revolving Loan Note" shall have the meaning specified in Section 2.8.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Standard & Poor's" shall mean Standard & Poor's Ratings Group, a
division of XxXxxx-Xxxx, Inc., or any successor thereto.
"Subsidiary" shall mean, as to any Person, any corporation or other
entity of which at least a majority of the securities or other ownership
interest having ordinary voting power (absolutely or contingently) for the
election of directors or other Persons performing similar functions are at
the time owned directly or indirectly by such Person.
"Taxes" shall have the meaning specified in Section 2.14.
"Termination Event" shall mean (a) a Reportable Event described in
Section 4043 of ERISA and the regulations issued thereunder (other than a
Reportable Event not subject to the provision for 30-day notice to the PBGC
under such regulations), or (b) the withdrawal of the Borrower or any of
its ERISA Affiliates from a Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA, or (c)
the filing of a notice of intent to terminate a Plan or the treatment of a
Plan amendment as a termination under Section 4041 of ERISA, or (d) the
institution of proceedings to terminate a Plan by the PBGC or to appoint a
trustee to administer any Plan.
"Total Capitalization" shall mean, at any date of determination, the
sum of (a) Total Indebtedness, (b) equity of the common stockholders of the
Borrower, (c) equity of the preference stockholders of the Borrower, if
any, and (d) equity of the preferred stockholders of the Borrower, if any,
in each case determined at such date.
"Total Indebtedness" shall mean, at any date of determination, the
aggregate Indebtedness of the Borrower and the Consolidated Subsidiaries.
"Transferee" shall have the meaning specified in Section 10.6(e).
"Type" shall mean, as to any Revolving Loan, its nature as an ABR Loan
or a Eurodollar Loan.
"Unfunded Pension Liabilities" shall mean with respect to any Pension
Plan at any time, the amount determined by taking the accumulated benefit
obligation, as disclosed in accordance with Statement of Accounting
Standards No. 87, "Employers' Accounting for Pensions", over the fair
market value of Pension Plan assets.
"Yield" shall mean for any Auction Advance, the effective rate per
annum at which interest on such Auction Advance is payable, computed on the
basis of a year of 360 days for the actual number of days (including the
first day but excluding the last day) occurring in the period for which
such interest is payable.
SECTION 1.2 Other Definitional Provisions. (a) Each definition of
an agreement or other document in this Article I shall include such
agreement or document as amended or otherwise modified from time to time.
(b) Unless otherwise specified therein, all terms defined in this
Agreement shall have their respective defined meanings when used in any
other Loan Documents or other document made or delivered pursuant hereto.
(c) As used herein and in any Notes or other document made or
delivered pursuant hereto, accounting terms not otherwise defined in
Section 1.1 shall have the respective meanings given to them under GAAP.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms; words of
the masculine gender shall mean and include correlative words of the
feminine and neuter genders.
(e) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision.
(f) Article, Section, Schedule and Exhibit references are to the
corresponding Article, Section, Schedule or Exhibit to this Agreement
unless otherwise specified.
(g) Any headings preceding the texts of the several Articles,
Sections and the table of contents of this Agreement shall be solely for
convenience of reference, and shall not constitute a part of this Agreement
nor affect its meaning.
ARTICLE II
AMOUNT AND TERMS OF COMMITMENTS
SECTION 2.1 Revolving Loans. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit
loans ("Revolving Loans") to the Borrower from time to time during the
Commitment Period in an aggregate principal amount at any one time
outstanding, not to exceed the amount of such Lender's Commitment. During
the Commitment Period the Borrower may use the Commitments by borrowing,
prepaying in whole or in part, and reborrowing the Revolving Loans, all in
accordance with the terms and conditions hereof.
(b) The Revolving Loans may from time to time be (i) Eurodollar Loans,
(ii) ABR Loans or (iii) a combination thereof, as determined by the
Borrower and notified to the Agent in accordance with Sections 2.2 and
2.10; provided that no Revolving Loan shall be made as a Eurodollar Loan
after the day that is one month prior to the Maturity Date.
SECTION 2.2 Procedure for Revolving Loans. The Borrower may
borrow under the Commitments during the Commitment Period on any Business
Day; provided that the Borrower shall give the Agent irrevocable notice
(which notice must be received by the Agent prior to 12:00 Noon, New York
City time, (a) three Business Days prior to the requested Borrowing Date,
if all or any part of the requested Revolving Loans are to be initially
Eurodollar Loans, or (b) one Business Day prior to the requested Borrowing
Date, if all of the requested Revolving Loans are to be ABR Loans),
specifying (i) the amount to be borrowed, (ii) the requested Borrowing
Date, (iii) whether the borrowing is to be of Eurodollar Loans, ABR Loans
or a combination thereof and (iv) if the borrowing is to be entirely or
partly of Eurodollar Loans, the respective amounts of such Type of Loan and
the length of the initial Interest Periods therefor. Each borrowing under
the Commitments shall be in an amount equal to a minimum amount of $100,000
and integral multiples of $25,000 in excess thereof. Upon receipt of any
such notice from the Borrower, the Agent shall promptly notify each Lender
thereof. Each Lender will make the amount of its pro rata share of each
borrowing available to the Agent for the account of the Borrower at the
office of the Agent specified in Section 10.2 prior to 11:00 A.M., New York
City time, on the Borrowing Date requested by the Borrower in funds
immediately available to the Agent. Such borrowing will then be made
available to the Borrower by the Agent by wire transfer of immediately
available funds to the Borrower's account with the Agent and otherwise in
accordance with the wire transfer instructions specified in the applicable
Loan Borrowing Certificate.
Notwithstanding the provisions of clause (b) in the preceding
paragraph, in the event that the offered amounts set forth on each Notice
to Borrower of Auction Offer submitted by the Lenders pursuant to Section
3.1(a)(ii) below are, in the aggregate, in an amount less than the
principal amount requested by the Borrower in the related Notice of an
Auction Borrowing (whether given verbally or otherwise), then the Borrower
may request an ABR Loan in the amount of the difference between accepted
Auction Offers and the principal amount requested by Borrower in the
related Notice of Auction Borrowing, by giving the Agent notice as provided
above, no later than 12:00 Noon (New York City time) on the date of such
requested borrowing.
SECTION 2.3 Fees. (a) The Borrower agrees to pay to the Agent
for the account of each Lender a facility fee, computed at the per annum
rate indicated below based on the Debt Rating on the amount of the
Commitment of such Lender in effect on the first Business Day of the fiscal
quarter in which such fee is payable (or with respect to the first such
payment, as in effect on the date hereof), computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as the case
may be, payable quarterly in arrears on the last day of each March, June,
September and December and on the Maturity Date or such earlier date as the
Commitments shall terminate as provided herein, commencing on the first of
such dates to occur after the date hereof:
Debt Rating Facility Fee
----------- ------------
BB (or lower) 0.375%
BB+ 0.300%
BBB- 0.200%
BBB 0.15%
BBB+ 0.125%
A- 0.100%
A (or higher) 0.075%
(b) The Borrower agrees to pay to the Agent for its own account on
the Closing Date and each anniversary thereof, the Agency Fee.
(c) If, and only for so long as, the aggregate principal amount of
all Loans outstanding shall exceed 50% of the Aggregate Commitment, the
Borrower shall pay to the Lenders a usage fee by increasing the rate of
interest otherwise payable hereunder and under the Notes in respect of such
Loans by 0.125% per annum.
(d) Except in the case of the fee described in Section 2.3(b), all
Fees shall be paid on the dates due, in immediately available funds, to the
Agent for distribution, if and as appropriate, on a prorata basis among the
Lenders. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.4 Interest Rates and Payment Dates. (a) Subject to the
provisions of Sections 2.3(c) and 2.4(c), each ABR Loan shall bear interest
at a rate per annum (computed on the basis of the actual number of days
elapsed over a year of 365 or 366 days, as the case may be) equal to the
ABR.
(b) Subject to the provisions of Sections 2.3(c), 2.4(c) and 2.11,
each Eurodollar Loan shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate per annum
equal to the Eurodollar Rate for the Interest Period in effect for such
Eurodollar Loan plus the Applicable Margin.
(c) If all or a portion of the principal amount of any Loan, any
interest payable thereon or any Fee or other amount payable hereunder shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum
which is
(i) in the case of overdue principal, the rate that otherwise would
be applicable thereto pursuant to the foregoing provisions of Section
2.3(c) and this Section 2.4 plus 2%, or
(ii) in the case of overdue interest or Fees or other amounts, the
rate described in Section 2.4(a) plus 2%,
in each case from the date of such nonpayment until such amount is paid in
full (as well after as before judgment). Overdue interest shall be
compounded and bear interest on each date for payment of interest on ABR
Loans hereunder.
(d) Interest shall be payable in arrears on each Interest Payment
Date; provided that interest accruing on overdue amounts pursuant to
Section 2.4(c) shall be payable on demand.
(e) As soon as practicable, the Agent shall notify the Borrower and
the Lenders of (i) each determination of a Eurodollar Rate and (ii) the
effective date and the amount of each change in the interest rate on a
Revolving Loan. Each determination of an interest rate by the Agent
pursuant to any provision of this Agreement shall be conclusive and binding
on the Borrower and the Lenders in the absence of clearly demonstrable
error. At the request of the Borrower, the Agent shall deliver to the
Borrower a statement showing the quotations used by the Agent in
determining any interest rate pursuant to paragraph 2.4(a) or 2.4(b).
SECTION 2.5 Pro Rata Treatment. (a) Subject to the provisions of
Section 3.1 in respect of Auction Borrowings, each borrowing by the
Borrower from the Lenders hereunder and any reduction of the Commitments of
the Lenders shall be made pro rata according to the Lenders' respective
Commitment Percentages. Each payment (including each prepayment) by the
Borrower on account of principal of and interest on the Loans shall be made
pro rata according to the respective outstanding principal amounts of the
Loans then held by the Lenders.
(b) Unless the Agent shall have been notified in writing by any
Lender prior to a Borrowing Date in respect of a Revolving Loan that such
Lender will not make available to the Agent the amount that would
constitute its Commitment Percentage of the Revolving Loan to be made on
such date, the Agent may assume that such Lender has made such amount
available to the Agent on such Borrowing Date, and the Agent may, in
reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Agent by
any Lender (a "non-performing Lender") at or before the required time on
such Borrowing Date, such non-performing Lender shall pay to the Agent, on
demand, such amount, with interest thereon at a rate equal to the daily
average Federal Funds Effective Rate for the period from and including such
Borrowing Date to the date such non-performing Lender makes such amount
immediately available to the Agent. A certificate of the Agent submitted
to any non-performing Lender with respect to any amounts owing under this
Section 2.5(b) shall be conclusive in the absence of clearly demonstrable
error. If such non-performing Lender's Commitment Percentage of such
borrowing is not made available to the Agent within three Business Days of
such Borrowing Date, the Agent also shall be entitled to recover such
amount from the Borrower, on demand, together with interest thereon from
the date such amount was made available to the Borrower at the interest
rate applicable to such borrowing, provided that in such event the Borrower
may request one or more additional borrowings from the other Lenders to
fund such payment from the Borrower to the Agent and, within the limits of
each such Lender's Available Commitment and subject to the breakdown set
forth in the provision to the first sentence of Section 2.1(a), the other
Lenders shall honor such request. If a non-performing Lender shall then
repay to the Agent such amount in full (including interest thereon as above
provided), (i) the Agent shall apply such corresponding amount and interest
to reduce the additional borrowings made by such other Lenders and (ii)
such amount so repaid shall be deemed to constitute such non-performing
Lender's advance made as part of such borrowing as if funded concurrently
with the funds provided by the other Lenders (and such Lender shall cease
to be a non-performing Lender). If and so long as a non-performing Lender
shall not repay such amount, all computations by the Agent with respect to
commitments and percentages hereunder shall be made without regard to the
unfunded Commitment of such non-performing Lender. The failure of any
Lender to fund its Commitment as part of any borrowing shall not relieve
any other Lender of its obligation, if any, to fund its own Commitment
hereunder, but no Lender shall be responsible for the failure of any other
Lender to fund its Commitment on the date of any borrowing hereunder.
Nothing contained herein shall in any way limit, waive or otherwise reduce
any claims that any party hereto may have against any non-performing
Lender.
SECTION 2.6 Repayment of Loans; Term. (a) The Borrower hereby
unconditionally promises to pay to the Agent for the account of each Lender
the then unpaid principal amount of each Loan of such Lender on the
Maturity Date (or such earlier date on which the Loans become due and
payable pursuant to Article VIII). The Borrower hereby further agrees to
pay interest on the unpaid principal amount of the Loans from time to time
outstanding until payment in full thereof at the rates per annum, and on
the dates, as provided in Section 2.4.
(b) If on or prior to the date which is 300 days following the
Closing Date, the Borrower has delivered to the Agent a request to extend
the Maturity Date to the third Anniversary of the Closing Date together
with evidence reasonably satisfactory to the Agent, including without
limitation an opinion of counsel to the Borrower (which opinion shall be
from counsel and in a form reasonably acceptable to the Agent), that the
Borrower has received all required Governmental Approvals to extend the
Maturity Date of this Agreement to the third anniversary of the Closing
Date and to provide for two one-year extensions as provided in subsection
(c) below, and the Agent acknowledges in writing its satisfaction to the
foregoing, the Maturity Date shall be automatically extended to the third
anniversary of the Closing Date.
(c) If the original Maturity Date is extended pursuant to subsection
(b) above, so long as (i) no Default or Event of Default has occurred and
is continuing and (ii) there has been no material adverse change in the
business or financial condition of the Borrower since the Closing Date, and
the Borrower has delivered to the Agent such evidence thereof as the Agent
may reasonably request, then upon each of the third and fourth
anniversaries of the Closing Date, the Borrower may, at its option, subject
to the approval of all of the Lenders, extend the Maturity Date for an
additional one-year period.
SECTION 2.7 Payments. (a) All payments (including prepayments)
made by the Borrower hereunder and under the Notes, whether on account of
principal, interest, Fees or otherwise, shall be made without set off or
counterclaim and shall be made prior to 3:00 P.M., New York City time, on
the due date thereof to the Agent, for the account of the Lenders, at the
Agent's office specified in Section 10.2, in Dollars and in immediately
available funds. The Agent shall distribute such payments to the Lenders
promptly upon receipt in like funds as received.
(b) If any principal payment hereunder (other than payments on
Eurodollar Loans) becomes due and payable on a day other than a Business
Day, such payment date shall be extended to the next succeeding Business
Day, and interest thereon shall be payable at the then applicable rate
during such extension. If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in
which event such payment shall be made on the immediately preceding
Business Day.
SECTION 2.8 Revolving Loan Note. The Revolving Loans made by each
Lender shall be evidenced by a promissory note of the Borrower payable to
the order of such Lender, substantially in the form of Schedule 2 hereto
appropriately completed (a "Revolving Loan Note"). Each Lender shall, and
is hereby authorized by the Borrower to, endorse on the schedule attached
to each Revolving Loan Note (or on a continuation of such schedule) or
otherwise to record in such Lender's internal records, an appropriate
notation evidencing the date and amount of each Revolving Loan from such
Lender, each payment and prepayment of principal of such Revolving Loan and
the other information provided for on such schedule; provided, however,
that the failure of any Lender to make such notation or any error therein
shall not affect any obligation of the Borrower to repay the Revolving
Loans made by such Lender in accordance with the terms of this Agreement
and the Notes or any other obligation of the Borrower hereunder.
SECTION 2.9 Optional Prepayments. (a) Subject to subsection (b)
hereof, the Borrower may at any time and from time to time prepay the
Loans, in whole or in part, without premium or penalty (other than as
provided in Section 2.15), upon at least five Business Days' irrevocable
notice to the Agent for Eurodollar Loans and two Business Days' irrevocable
notice to the Agent for ABR Loans, specifying the date and amount of
prepayment and whether the prepayment is of Eurodollar Loans, ABR Loans or
a combination thereof, and, if of a combination thereof, the amount
allocable to each. Upon receipt of any such notice the Agent shall
promptly notify each Lender thereof. If any such notice is given, the
amount specified in such notice shall be due and payable on the date
specified therein, together with any amounts payable pursuant to Section
2.15 and accrued interest to such date on the amount prepaid.
(b) The Borrower may not prepay any Auction Borrowing, except as set
forth in Section 3.l(d).
SECTION 2.10 Conversion and Continuation Options. The Borrower
shall have the right at any time upon prior irrevocable notice to the Agent
(i) not later than 12:00 Noon, New York City time, one Business Day prior
to conversion, to convert any Eurodollar Loan to an ABR Loan, (ii) not
later than 12:00 Noon, New York City time, three Business Days (provided
such Business Days are days on which dealings in foreign currencies and
exchanges between banks may be carried on in London) prior to conversion or
continuation, to convert any ABR Loan into a Eurodollar Loan or to continue
any Eurodollar Loan as a Eurodollar Loan for any additional Interest
Period, and (iii) not later than 12:00 Noon, New York City time, three such
Business Days prior to conversion, to convert the Interest Period with
respect to any Eurodollar Loan to another permissible Interest Period
subject in each case to the following:
(a) a Eurodollar Loan may not be converted at a time other than the
last day of the Interest Period applicable thereto;
(b) any portion of a Loan maturing or required to be repaid in less
than one month may not be converted into or continued as a Eurodollar Loan;
(c) no Eurodollar Loan may be continued as such and no ABR Loan may
be converted to a Eurodollar Loan when any Event of Default has occurred
and is continuing and the Agent or the Required Lenders have determined
that such a continuation is not appropriate (the Borrower shall provide, in
addition to the notice specified in Section 2.10, upon the request of the
Agent or the Required Lenders, certification that no such Event of Default
has occurred and is continuing);
(d) any portion of a Eurodollar Loan that cannot be converted into or
continued as a Eurodollar Loan by reason of Section 2.10(b) or 2.10(c)
automatically shall be converted at the end of the Interest Period in
effect for such Loan to an ABR Loan;
(e) on the last day of any Interest Period for Eurodollar Loans if
the Borrower has failed to give notice of conversion or continuation as
described in this Section 2.10 or if such conversion or continuation is not
permitted pursuant to Section 2.10(d), such Loans shall be converted to ABR
Loans on the last day of such then expiring Interest Period.
Accrued interest on a Loan (or portion thereof) being converted shall be
paid by the Borrower at the time of conversion. All borrowings,
conversions and continuations of Loans hereunder and all selections of
Interest Periods hereunder shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate
principal amount of the Eurodollar Loans shall be at least equal to
$100,000 or a whole multiple of $25,000 in excess thereof. In no event
shall there be Eurodollar Loans with more than six Interest Periods
outstanding at any time.
SECTION 2.11 Inability to Determine Interest Rate. If prior to
the first day of any Interest Period:
(a) the Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist
for ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Agent shall have received notice from the Required Lenders
that the Eurodollar Rate determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost to such Lenders (as
conclusively certified by such Lenders) of making or maintaining their
affected Loans during such Interest Period, or
(c) Dollar deposits in the principal amounts of Eurodollar Loans to
which such Interest Period is to be applicable are not generally available
in the London Interbank Market,
the Agent shall give telecopy or telephonic notice thereof to the Borrower
and the Lenders as soon as practicable thereafter. If such notice is given
(x) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as ABR Loans, (y) any Loans that were to have
been converted on the first day of such Interest Period to Eurodollar Loans
shall be converted to or continued as ABR Loans and (z) any outstanding
Eurodollar Loans shall be converted, on the first day of such Interest
Period, to ABR Loans. Until such notice has been withdrawn by the Agent,
no further Eurodollar Loans shall be made or continued as such, nor shall
the Borrower have the right to convert Loans to Eurodollar Loans.
SECTION 2.12 Change in Legality. Notwithstanding any other
provision herein, if the adoption of or any change in any Requirement of
Law or in the interpretation or application thereof shall make it unlawful
for any Lender to make or maintain Eurodollar Loans or Auction Borrowing as
contemplated by this Agreement, (a) the commitment of such Lender hereunder
to make Eurodollar Loans, continue Eurodollar Loans as such and convert ABR
Loans to Eurodollar Loans shall forthwith be canceled and (b) such Lender's
Loans then outstanding as Eurodollar Loans, if any, shall be converted
automatically to ABR Loans on the respective last days of the then current
Interest Periods with respect to such Loans or within such earlier period
as required by law. If any such conversion of a Eurodollar Loan or Auction
Borrowing occurs on a day which is not the last day of the then current
Interest Period with respect thereto, the Borrower shall pay to such Lender
such amounts, if any, as may be required pursuant to Section 2.15.
SECTION 2.13 Increased Costs. (a) If the adoption of or any
change in any Requirement of Law or in the interpretation or application
thereof or compliance by any Lender with any request or directive (whether
or not having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:
(i) shall subject any Lender or any Participant to any tax of any
kind whatsoever with respect to this Agreement, any Note, any Auction
Borrowing, or any Eurodollar Loan, or change the basis of taxation of
payments to such Lender in respect thereof (except for Taxes covered by
Section 2.14 and changes in the rate of tax on the overall net income of
such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition; and the result
of any of the foregoing is to increase the cost to such Lender or
Participant, by an amount which such Lender deems to be material, of
making, converting into, continuing or maintaining Eurodollar Loans or to
reduce any amount receivable hereunder in respect thereof,
then, in any such case, the Borrower shall promptly pay such Lender or such
Participant, as the case may be, upon its demand, such additional amount or
amounts as will compensate it for such increased cost or reduced amount
receivable.
(b) If any Lender or any Participant shall have determined that the
adoption of or any change in any Requirement of Law regarding capital
adequacy or in the interpretation or application thereof or compliance by
such Lender or such Participant, as the case may be, or any corporation
controlling such Person with any request or directive regarding capital
adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of
reducing the rate of return on such Person's or such corporation's capital
as a consequence of its obligations hereunder or to a level below that
which such Person or such corporation could have achieved but for such
adoption, change or compliance (taking into consideration such Person's or
such corporation's policies with respect to capital adequacy) by an amount
deemed by such Person to be material, then from time to time, the Borrower
shall promptly pay to such Person such additional amount or amounts as will
compensate such Person for such reduction.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this Section 2.13, it shall promptly notify the Borrower (with
a copy to the Agent) of the event by reason of which it has become so
entitled. A certificate as to any additional amounts payable pursuant to
this Section 2.13 submitted by such Lender to the Borrower (with a copy to
the Agent) shall be conclusive in the absence of clearly demonstrable
error. The agreements in this Section 2.13 shall survive the termination
of this Agreement and the payment of the Loans and all other amounts
payable hereunder, provided that no Lender shall be entitled to any
additional amount payable under this Section 2.13 to the extent that such
amount relates to any period of time more than 120 days prior to the date
on which such Lender first notified the Borrower of the occurrence of the
event entitling such Lender to such additional amount (unless, and to the
extent, that any such compensation so demanded shall relate to the
retroactive application of any event so notified to the Borrower).
(d) Within 15 days after receipt by Borrower of a written notice and
demand from any Lender (an "Affected Lender") for payment of additional
amounts or increased costs as provided in this Section 2.13 not generally
applicable to all Lenders, the Borrower may, at its option, notify the
Agent and such Affected Lender of its intention to replace such Affected
Lender. So long as no Default or Event of Default shall have occurred and
be continuing, Borrower, with the consent of Agent, may obtain, at the
Borrower's expense, a replacement Lender ("Replacement Lender") for the
Affected Lender, which Replacement Lender must be satisfactory to the
Agent. If Borrower obtains a Replacement Lender within sixty (60) days
following notice of its intention to do so, the Affected Lender must sell
and assign its Loans and Commitments to such Replacement Lender for an
amount equal to the principal balance of all Loans held by the Affected
Lender and all accrued interest and Fees with respect thereto through the
date of such sale, provided that Borrower should have reimbursed such
Affected Lender for the additional amounts or increased costs that it is
entitled to receive under this Agreement through the date of such sale and
assignment.
SECTION 2.14 Taxes. (a) All payments made by the Borrower under
this Agreement and any Notes shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority (excluding net income
taxes and franchise taxes imposed in lieu of net income taxes imposed on
the Agent or any Lender as a result of a present or former connection
between the Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely
from the Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
Note)). If any such non-excluded taxes, levies, imposts, duties, charges,
fees deductions or withholdings (collectively, "Taxes") are required to be
withheld from any amounts payable to the Agent or any Lender hereunder or
under any Note, the amounts so payable to the Agent or such Lender shall be
increased to the extent necessary to yield to the Agent or such Lender
(after payment of all Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement;
provided, however, that the Borrower shall not be required to increase any
such amounts payable to any Lender that is not organized under the laws of
the United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this Section 2.14.
Whenever any Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Agent for its own account or for
the account of such Lender, as the case may be, a certified copy of an
original official receipt received by the Borrower showing payment thereof.
If the Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Agent the required receipts or other
required documentary evidence, the Borrower shall indemnify the Agent and
the Lenders for any incremental taxes, interest or penalties that may
become payable by the Agent or any Lender as a result of any such failure.
The agreements in this Section 2.14 shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable
hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(i) deliver to the Borrower and the Agent (A) two duly completed
copies of United States Internal Revenue Service Form 1001 or 4224, or
successor applicable form, as the case may be, and (B) an Internal Revenue
Service Form W-8 or W-9, or successor applicable form, as the case may be;
(ii) deliver to the Borrower and the Agent two further copies of any
such form or certification on or before the date that any such form or
certification expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recent form previously delivered by it
to the Borrower; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the Borrower or
the Agent;
unless in any such case an event (including, without limitation, any change
in treaty, law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Borrower and the Agent. Such Lender shall certify (i) in the case of a
Form 1001 or 4224, that it is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal
income taxes and (ii) in the case of a Form W-8 or W-9, that it is entitled
to an exemption from United States backup withholding tax. Each Person
that shall become a Lender or a Participant pursuant to Section 10.6 shall,
upon the effectiveness of the related transfer, be required to provide all
of the forms and statements required pursuant to this Section 2.14,
provided that in the case of a Participant such Participant shall furnish
all such required forms and statements to the Lender from which the related
participation shall have been purchased.
SECTION 2.15 Indemnity. (a) The Borrower agrees to indemnify
each Lender and to hold each Lender harmless from any loss or expense which
such Lender may sustain or incur as a consequence of:
(i) default by the Borrower in payment when due of the principal
amount of or interest on any Eurodollar Loan or Auction Borrowing;
(ii) default by the Borrower in making a borrowing of, conversion
into or continuation of Eurodollar Loans or Auction Borrowing after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement;
(iii) default by the Borrower in making any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of
this Agreement; or
(iv) the making of a payment or a prepayment of Eurodollar Loans or
Auction Borrowing on a day which is not the last day of an Interest period
with respect thereto;
including, without limitation, in each case, any such loss (including,
without limitation, loss of margin) or expense arising from the
reemployment of funds obtained by it or from fees payable to terminate the
deposits from which such funds were obtained.
(b) For the purpose of calculation of all amounts payable to a Lender
under this Section 2.15, each Lender shall be deemed to have actually
funded its relevant Eurodollar Loan or Auction Borrowing, as the case may
be, through the purchase of a deposit bearing interest at the rate borne by
the respective Eurodollar Loan or Auction Borrowing, as the case may be, in
an amount equal to the amount of the respective Eurodollar Loan or Auction
Borrowing, as the case may be, and having a maturity comparable to the
relevant Interest Period; provided, however, that each Lender may fund each
of its Eurodollar Loans in any manner it sees fit, and the foregoing
assumption shall be utilized only for the calculation of amounts payable
under this subsection. This covenant shall survive the termination of this
Agreement and the payment of the Notes and all other amounts payable
hereunder.
ARTICLE III
AUCTION ADVANCES
SECTION 3.1 The Auction Advance. (a) Each Lender severally agrees
that the Borrower may request Auction Borrowings under this Section 3.1
from time to time on any Business Day during the period from the date
hereof until the date occurring seven days prior to the Maturity Date, in
the manner set forth below; provided, that, following the making of each
Auction Borrowing, the aggregate amount of the Auction Advance then
outstanding shall not exceed the lower of either (x) the aggregate
Available Commitment of all the Lenders and (y) $25,000,000.
(i) The Borrower may initiate an Auction Borrowing verbally or
otherwise by communicating to the Agent and to each of the Lenders a
request for an Auction Borrowing (a "Notice of Auction Borrowing"),
specifying the date and aggregate amount of the proposed Auction Borrowing,
the maturity date for repayment of each Auction Advance to be made as part
of such Auction Borrowing (which maturity date may not be later than the
earlier to occur of (A) 270 days after the date of such Auction Borrowing
and (B) the Maturity Date), the interest payment date or dates relating
thereto (which shall occur at least every 90 days), and any other terms to
be applicable to such Auction Borrowing. Such requests shall be made, if
possible, before 10:00 A.M., (New York City time) of the date of the
proposed Auction Borrowing.
(ii) Each Lender may, in its sole discretion, elect to irrevocably
offer to make one or more Auction Advances to the Borrower as part of such
proposed Auction Borrowing at a rate or rates of interest specified by such
Lender in its sole discretion, by notifying the Borrower verbally or
otherwise (a "Notice to Borrower of Auction Offer"), before 11:00 A.M. (New
York City time) or in any event within one hour of the receipt of the
Notice of an Auction Borrowing on the date of such proposed Auction
Borrowing of the minimum amount and maximum amount of each Auction Advance
that such Lender would be willing to make as part of such proposed Auction
Borrowing (which amounts may, subject to the proviso to the first sentence
of this Section 3.1(a), exceed such Lender's Commitment), the rate or rates
of interest therefor, the interest period relating thereto and such
Lender's Applicable Lending Office with respect to such Auction Advance.
The failure by any Lender to give such notice within such time period shall
be deemed to be an election not to participate in such Auction Borrowing
and shall not cause such Lender to be obligated to make any Auction Advance
as part of such proposed Auction Borrowing.
(iii) the Borrower shall, in turn, before 12:00 P.M. (New York City
time) or in any event within two hours of the initiation of an Auction
Borrowing on the date of such proposed Auction Borrowing, either
(A) cancel such Auction Borrowing by giving the Agent and each Lender
that has submitted or communicated a Notice to Borrower of Auction Offer
notice (verbally or otherwise) to that effect, or
(B) irrevocably accept one or more of the offers made by any Lender
or Lenders pursuant to paragraph (ii) above, in its sole discretion, in an
aggregate amount not in excess of the aggregate amount of the proposed
Auction Borrowing, subject only to the provisions of this paragraph (iii),
by giving verbal and written (by facsimile) notice to the applicable Lender
or Lenders, as the case may be, of the amount of each Auction Advance
(which amount shall be equal to or greater than each such Lender's minimum
amount, and equal to or less than each such Lender's maximum amount,
notified to the Borrower by such Lender or Lenders for such Auction
Advances pursuant to paragraph (ii) above) to be made by each such Lender
as part of such Auction Borrowing, and reject any remaining offers made by
other Lenders pursuant to paragraph (ii) above by giving each such Lender
notice to that effect; provided, however, that (x) the Borrower shall not
accept an offer made pursuant to paragraph (ii) above, at any Yield if the
Borrower shall have, or shall be deemed to have, rejected any other offer
made pursuant to paragraph (ii) above, at a lower Yield, (y) if the
Borrower declines to accept, or is otherwise restricted by the provisions
of this Agreement from accepting, the maximum aggregate principal amount of
Auction Borrowings offered at the same Yield pursuant to paragraph (ii)
above, then the Borrower shall accept a pro rata portion of each offer made
at such Yield, based as nearly as possible on the ratio of the aggregate
principal amount of such offers to be accepted by the Borrower to the
maximum aggregate principal amount of such offers made pursuant to
paragraph (ii) above (rounding up or down to the next higher or lower
multiple of $100,000), and (z) no offer made pursuant to paragraph (ii)
above shall be accepted unless the Auction Borrowing in respect of such
offer is in an integral multiple of $100,000 and the aggregate amount of
such offers accepted by the Borrower is equal to at least $500,000.
Any offer or offers made pursuant to paragraph (ii) above not
expressly accepted or rejected by the Borrower in accordance with this
paragraph (iii) shall be deemed to have been rejected by the Borrower.
(iv) If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to clause (B) of paragraph (iii) above, the
Borrower shall in turn promptly notify verbally and via facsimile (A) each
Lender that has submitted a Notice to Borrower of Auction Offer, of the
date and aggregate amount of such Auction Borrowing and whether or not any
offer or offers made by such Lender pursuant to paragraph (ii) above have
been accepted by the Borrower and (B) each Lender that is to make an
Auction Advance as part of such Auction Borrowing of the amount of each
Auction Advance to be made by such Lender as part of such Auction
Borrowing. The Borrower shall also provide the Agent with a summary of the
terms and amounts borrowed for each of the Lenders selected within 5
business days after each Auction Borrowing. Each Lender that is to make an
Auction Advance as part of such Auction Borrowing shall, on the date of
such Auction Borrowing, make available for the account of the Borrower such
Lender's portion of such Auction Borrowing, in same day funds.
(b) Each Auction Advance shall be in an amount not less than $500,000
or an integral multiple of $100,000 in excess thereof and, following the
making of each Auction Borrowing, the Borrower shall be in compliance with
the limitation set forth in the proviso to the first sentence of subsection
(a) above.
(c) Within the limits and on the conditions set forth in this Section
3.1, the Borrower may from time to time borrow under this Section 3.1,
repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 3.1.
(d) The Borrower shall repay to each Lender that has made an Auction
Advance, or each other holder of an Auction Note, on the maturity date of
each Auction Advance (such maturity date being that specified by the
respective Lender for repayment of such Auction Advance in the related
Notice of an Auction Offer delivered pursuant to subsection (a)(ii) above
and provided in the Auction Note evidencing such Auction Advance), the then
unpaid principal amount of such Auction Advance. The Borrower shall have
no right to prepay any principal amount of any Auction Advance unless, and
then only on the terms, specified by the Borrower for such Auction Advance
in the related Notice of Auction Borrowing delivered pursuant to subsection
(a)(i) above (whether verbally or otherwise) and set forth in the
corresponding Notice of Auction Offer and further noted in the Auction Note
evidencing such Auction Advance. Within 5 business days of any such
repayment, the Borrower shall also provide notice to the Agent of the date
and amount of such prepayment by such Lender.
(e) The Borrower shall pay interest on the unpaid principal amount of
each Auction Advance from the date of such Auction Advance to the date the
principal amount of such Auction Advance is repaid in full, at the rate of
interest for such Auction Advance specified by the Lender making such
Auction Advance in its notice with respect thereto delivered pursuant to
subsection (a)(ii) above, payable on the interest payment date or dates
specified by the Lender for such Auction Advance in the related Notice of
an Auction Offer delivered pursuant to subsection (a)(ii) above, as
provided in the Auction Note evidencing such Auction Advance.
(f) The indebtedness of the Borrower resulting from each Auction
Advance made to the Borrower as part of an Auction Borrowing shall be
evidenced by an appropriate notation to the Auction Note of the Borrower
payable to the order of each Lender making such Auction Advance.
(g) Upon payment in full of the principal amount of any Auction Note
and interest accrued thereon, upon written request of the Borrower, the
holder of such Auction Note shall cancel and return such Auction Note to
the Borrower.
SECTION 3.2 Conditions Precedent to Each Auction Borrowing. The
obligation of each Lender that is to make an Auction Advance on the
occasion of an Auction Borrowing (including the initial Auction Borrowing)
to make such Auction Advance as part of such Auction Borrowing is subject
to the conditions precedent that(i)on the date of such Auction Borrowing,
but prior to such Auction Borrowing, the Borrower shall have received
confirmation that an appropriate notation has been or will be made in the
schedule to the Auction Note payable to the order of such Lender for each
of the Auction Advances to be made by such Lender as part of such Auction
Borrowing, in a principal amount equal to the principal amount of the
Auction Advance to be evidenced thereby and otherwise on such terms as were
agreed to for such Auction Advance in accordance with Section 3.1, and (ii)
except as otherwise waived in accordance with Section 10.01, on the date of
such Auction Borrowing the following statements shall be true, and each of
the giving of the applicable Notice of an Auction Borrowing (whether
verbally or otherwise) and the acceptance by the Borrower of the proceeds
of such Auction Borrowing shall constitute a representation and warranty by
the Borrower that on the date of such Auction Borrowing such statements are
true:
(A) The representations and warranties contained in Article IV are
correct on and as of the date of such Borrowing, before and after giving
effect to such Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date, and
(B) No Default or Event of Default has occurred and is continuing, or
would result from such Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or which would constitute
an Event of Default but for the requirement that notice be given or time
elapse or both.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into this Agreement and
to make the Loans, the Borrower hereby represents and warrants to the Agent
and each Lender that:
SECTION 4.1 Incorporation and Good Standing. The Borrower is duly
incorporated, validly existing and in good standing under the laws of the
State of Vermont. The Borrower is duly qualified to do business in the
States of New Hampshire, New York, Maine and Connecticut and as a foreign
corporation and is in good standing in each other jurisdiction where the
character of its business, the nature of its properties or the transaction
of any material portion of its business (as now conducted and as currently
contemplated to be conducted) requires such qualification, if any.
SECTION 4.2 Corporate Power and Authority. The Borrower has the
requisite power and authority to own its properties and carry on its
business as now being conducted and as currently proposed to be conducted,
and to execute, deliver and perform its obligations under each Loan
Document.
SECTION 4.3 No Conflicts. The execution, delivery and performance
by Borrower of each of the Loan Documents are within the Borrower's
corporate powers and have been duly authorized by all necessary corporate
action and (i) do not violate any Requirement of Law, (ii) do not breach or
result in an event of default under any indenture or material agreement to
which the Borrower is a party or by which it or its property is bound,
(iii) will not result in or require the creation of any Lien upon or with
respect to any of its properties, and (iv) do not require any consent or
approval of any creditor of the Borrower.
SECTION 4.4 Governmental Approvals. No Governmental Approvals are
required for the due execution, delivery and performance by the Borrower of
any Loan Document, including, without limitation, any Governmental Approval
of or by the Vermont Public Service Board and the New Hampshire Public
Utilities Commission, the Connecticut Department of Public Utilities
Commission, the Public Service Commission of the State of New York, and the
Maine Public Utilities Commission.
SECTION 4.5 Legally Enforceable Agreements. This Agreement and
the other Loan Documents (except the Notes) are, and the Notes when
delivered hereunder will be, legal, valid and binding obligations of the
Borrower, enforceable against the Borrower in accordance with their
respective terms, subject to (i) the effect of applicable bankruptcy,
insolvency, reorganization or moratorium or other similar laws affecting
the enforcement of creditors' rights generally, and (ii) the application of
general principles of equity (regardless of whether considered in a
proceeding in equity or at law).
SECTION 4.6 Financial Statements. The audited balance sheet of
the Borrower as at December 31, 1996, and the related statements of income
and retained earnings and statement of cash flows of the Borrower for the
fiscal year then ended, (copies of which have been furnished to the Agent),
and the unaudited balance sheet of the Borrower as of June 30, 1997 (copies
of which have been furnished to the Agent), fairly present the financial
condition of the Borrower as at such date and the results of operations of
the Borrower for the period ended on such date, all in accordance with
GAAP, and since June 30, 1997 there has been no material adverse change in
the business, operations, assets, liabilities, financial condition or
results of operations of the Borrower, taken as a whole, that would affect
the Borrower's ability to perform its obligations under any of the Loan
Documents, except as disclosed in writing to the Agent.
SECTION 4.7 Litigation. There is no pending or, to the best of
the Borrower's knowledge, threatened action or proceeding against the
Borrower before any court, governmental agency or arbitrator, which if
adversely determined, could reasonably be expected to materially adversely
affect the financial condition or results of operations of the Borrower or
that could otherwise materially adversely affect the Borrower's ability to
perform it obligations under any of the Loan Documents.
SECTION 4.8 Margin Stock. The Borrower is not engaged in the
business of extending credit for the purpose of buying or carrying margin
stock (within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System), and no proceeds of any Loan will be used to buy or
carry any margin stock (within the meaning of Regulations G, T, U or X of
said Board of Governors) or to extend credit to others for the purpose of
buying or carrying any margin stock or otherwise used in violation of
Regulations G, T, U or X of said Board of Governors.
SECTION 4.9 ERISA. Each Employee Benefit Plan of the Borrower and
any ERISA Affiliate is in compliance with ERISA and the Code, where
applicable, in all material respects. At the date hereof (i) as of the
most recent annual actuarial report, there are no Unfunded Pension
Liabilities under the Pension Plan, and (ii) the amount of the aggregate
post-retirement medical benefits under all applicable employee Benefit
Plans does not exceed approximately $15,000,000. The Borrower and/or any
ERISA Affiliate has, as of the date hereof, made all contributions or
payments to or under each such Pension Plan required by law or the terms of
such Pension Plan or any contract or agreement. No material liability to
the PBGC has been, or is expected by the Borrower or any ERISA Affiliate to
be, incurred by the Borrower or any ERISA Affiliate. Liability, as
referred to in this Section, includes any joint and several liability.
Each Employee Benefit Plan which is a group health plan within the meaning
of Code Section 5000(b)(1) is in material compliance with the continuation
of health care coverage requirements of Code Section 4980B.
SECTION 4.10 Environmental Matters. To the best of the Borrower's
knowledge, there has not been a release, discharge or emission of any
hazardous substance which is prohibited, controlled or regulated under any
Requirement of Law, which have had, or which could reasonably be expected
to have, a material adverse effect on the financial condition of the
Borrower. Except as disclosed in the Borrower's most recent Form 10-K or
Form 10-Q, the Borrower has not received any notice of any violation,
alleged violation, non-compliance, liability or potential liability
regarding environmental Requirements of Law with regards to any of its
properties that would have a material adverse effect on the financial
condition of the Borrower, nor does the Borrower have knowledge that any
such notice is threatened.
SECTION 4.11 No Default; Compliance. No Default or Event of
Default has occurred and is continuing, and the Borrower is in compliance
in all material respects with all Requirements of Law. No defaults by the
Borrower exist under any contracts or judgments, decrees or orders except
for defaults that, singly or in the aggregate, have not had and will not
have a materially adverse effect on the business, operations, assets,
liabilities, financial condition, results of operations or business
prospects of the Borrower or a materially adverse effect on its ability to
perform its obligations under this Agreement or the Existing Letter of
Credit Agreements.
SECTION 4.12 Investment Company Act. The Borrower is not an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
SECTION 4.13 Taxes. All Federal, state and local tax returns and
other material reports required by applicable law to be filed by the
Borrower have been filed, and all material taxes, assessments and other
governmental charges imposed upon the Borrower or any of the respective
properties of the Borrower and which have become due and payable on or
prior to the date hereof have been paid except to the extent contested in
good faith by proper proceedings which stay the imposition of any penalty
fine or lien resulting form the non-payment thereof and with respect to
which adequate reserves have been set aside for payment thereof.
SECTION 4.14 No Material Adverse Effect. No fact is known to the
Borrower which has had or in the reasonable judgment of the Borrower may in
the future have a materially adverse effect on the business, operations,
assets, liabilities, financial condition, results of operations or business
prospects of the Borrower or on its ability to perform its obligations
under this Agreement or the Existing Letter of Credit Agreements which has
not been set forth in such reports or otherwise disclosed in writing to the
Agent prior to the Closing Date or any Borrowing Date. No document
furnished or other written statement made pursuant to the Existing Letter
of Credit Agreements in connection with the negotiation, preparation or
execution of this Agreement or the Existing Letter of Credit Agreements
contains or will contain any untrue statement of a fact material to the
creditworthiness of the Borrower or omits or will omit to state such a
material fact necessary in order to make the statements contained therein
not misleading.
SECTION 4.15 Statements; Certificates. All statements contained
in any certificate, financial statement or other instrument delivered by or
on behalf of the Borrower pursuant to or in connection with this Agreement
(including but not limited to any such made in or in connection with any
amendment hereto) shall constitute representations and warranties made
under this Agreement.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.1 Conditions to Closing. Unless already satisfied by
the Borrower as of November 5, 1997, the agreement of each Lender to make
the initial Loans requested to be made by it is subject to the
satisfaction, immediately prior to or concurrently with the making of such
Loan of the following conditions precedent:
(a) each Lender shall have received a Revolving Loan Note and an
Auction Note, payable to such Lender and duly completed in accordance with
the terms hereof;
(b) the Agent shall have received the favorable written opinion,
dated the Closing Date and addressed to the Agent, of the General Counsel
of the Borrower, substantially in the form of Schedule 3 hereto;
(c) all legal matters incident to this Agreement and the transactions
contemplated hereby shall be satisfactory to the Agent, to the Lenders, and
to Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, counsel for the Agent;
(d) each of the Loan Documents shall have been duly executed by each
of the parties thereto and delivered to the Agent and shall be in full
force and effect;
(e) the Borrower shall have duly paid the Fees that are payable on
the Closing Date in accordance with Section 2.3;
(f) the Agent shall have received certified copies of all
governmental approvals (including any approvals, or evidence in form and
substance satisfactory to the Agent that such approvals are not required,
of the Issuer and the Public Service Board of the State of Vermont and the
New Hampshire Public Utilities Commission) necessary for the Borrower to
enter into this Agreement and the transactions contemplated by this
Agreement;
(g) the Agent shall have received certified copies of the Borrower's
Articles of Association and By-Laws, and resolutions of the Board of
Directors of the Borrower's approving this Agreement and of all other
documents evidencing other necessary corporate action;
(h) the Agent shall have received a certificate of the Secretary or
an Assistant Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign this
Agreement and the other documents to be delivered by it hereunder;
(i) the Agent shall have received good standing and tax clearance
certificates with respect to the Borrower issued within a reasonable period
of time prior to the execution of this Agreement by the Secretary of State
of the States of Vermont and New Hampshire and the Tax Department or
Departments of Revenue of the States of Vermont and New Hampshire; and
(j) the Agent shall have received such other documents, instruments
and opinions as shall be reasonably requested by the Agent or Paul,
Hastings, Xxxxxxxx & Xxxxxx LLP, counsel for the Agent, and all legal
matters incident to this Agreement and the transactions contemplated hereby
shall be satisfactory to the Agent and Paul, Hastings, Xxxxxxxx and Xxxxxx
LLP, counsel for the Agent.
SECTION 5.2 Conditions to Each Loan. The agreement of each Lender
to make any Loan requested to be made by it on any Borrowing Date
(including its initial Loan) is subject to the satisfaction of the
following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Borrower in or pursuant to the Loan Documents shall
be true and correct on and as of such date as if made on and as of such
date.
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Loans
requested to be made on such date.
(c) Borrowing Certificate. The Agent shall have received, with a
counterpart for each Lender, (i) with respect to any Revolving Loan,
evidence that the certificate of the Borrower, substantially in the form of
Schedule 4 hereto, has been issued or updated to reflect such borrowing and
(ii) with respect to any Auction Borrowing, evidence that a notice from the
Borrower to each Lender selected in any Auction Borrowing as set forth in
Section 3.1(a)(iii)(B) hereto, has been issued or updated to reflect such
borrowing, (in either case, a "Loan Borrowing Certificate") each with
appropriate insertions and attachments, satisfactory in form and substance
to the Agent, executed by a Responsible Officer.
(d) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents
shall be satisfactory in form and substance to the Agent, and the Agent
shall have received such other documents and legal opinions in respect of
any aspect or consequence of the transactions contemplated hereby or
thereby as it shall reasonably request.
Each Borrowing by the Borrower hereunder shall constitute a representation
and warranty by the Borrower as of the date thereof that the conditions
contained in this Section 5.2 have been satisfied.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect or any amount is owing to any Lender or the Agent hereunder or under
any other Loan Document, the Borrower shall:
SECTION 6.1 Payment of Taxes, Etc. Pay and discharge before the
same shall become delinquent, (a) all taxes, assessments and governmental
charges or levies imposed upon it or upon its property, and (b) all lawful
claims which, if unpaid, might by law become a Lien upon its property;
provided, that the Borrower shall not be required to pay or discharge any
such tax, assessment, charge or claim (i) which is being contested by it in
good faith and by proper procedures, or (ii) the non-payment of which will
not materially adversely affect the financial condition or results of
operations of the Borrower.
SECTION 6.2 Maintenance of Insurance. Maintain insurance in such
amounts and covering such risks with respect to its business and properties
as is usually carried by companies located in the same general area as the
Borrower and engaged in similar businesses and owning similar properties,
with reputable insurance companies.
SECTION 6.3 Preservation of Corporate Existence, Etc. Preserve
and maintain its corporate existence, rights and franchises, and qualify
and remain qualified as a foreign corporation in each jurisdiction in which
such qualification is necessary in view of its business and operations or
the ownership of its properties; provided, that the Borrower shall not be
required to preserve any such right or franchise or to remain so qualified
unless the failure to do so would have a material adverse effect on the
financial condition or results of operations of the Borrower or the ability
of the Borrower to perform its obligations under any Loan Document.
SECTION 6.4 Compliance with Laws, Etc. Comply with all
Requirements of Law, the non-compliance with which could materially
adversely affect the financial condition or results of operations of the
Borrower or the ability of the Borrower to perform its obligations under
any Loan Document.
SECTION 6.5 Visitation Rights. At any reasonable time and from
time to time, permit the Agent, any of the Lenders or any agents or
representatives thereof, to examine and make copies of and abstracts from
its records and books of account, visit its properties and discuss its
affairs, finances and accounts with any of its officers and its independent
public accountants.
SECTION 6.6 Keeping of Books. Keep adequate records and books of
account, in which full and correct entries shall be made of all of its
financial transactions and its assets and business so as to permit the
Borrower to present financial statements in accordance with GAAP.
SECTION 6.7 Reporting Requirements. Furnish to the Agent, with
sufficient copies for each of the Lenders:
(a) as soon as practicable and in any event within five Business Days
after becoming aware of the occurrence of any Default or Event of Default
hereunder, a statement of a Responsible Officer as to the nature thereof,
and as soon as practicable and in any event within five Business Days
thereafter, a statement of a Responsible Officer as to the action which the
Borrower has taken, is taking or proposes to take with respect thereto;
(b) as soon as practicable and in any event within five Business Days
after becoming aware of the occurrence thereof, notice of any material
adverse change in the business, operations, property or condition
(financial or otherwise) of the Borrower, or any material damage to or
material destruction or material taking of the Borrower's assets;
(c) as soon as practicable and in any event within five Business Days
after becoming aware of the occurrence thereof, notice of any change in the
rating of the Borrower's Senior Debt credit rating by any Rating Agency;
(d) As soon as practicable and in any event, within 120 days after
the end of each fiscal year of the Borrower, a copy of the annual report of
the Borrower for such year on Form 10-K filed by the Borrower with the SEC
containing financial statements of the Borrower for such fiscal year,
including, but not limited to, a balance sheet of the Borrower as of the
close of such fiscal year and statements of income and retained earnings
and statement of cash flows for the fiscal year then ended, accompanied by
a report and opinion of the Borrower's independent accountants (who shall
be Xxxxxx Xxxxxxxx & Co. or other independent accountants of nationally
recognized standing), which report and opinion shall have been prepared in
accordance with generally accepted auditing standards. In addition, the
Borrower will deliver to the Agent within said period of 120 days a
certificate of a Responsible Officer stating that no Event of Default or
event which, with notice or lapse of time or both, would constitute an
Event of Default, has occurred and is continuing or, if an Event of Default
or such event has occurred and is continuing, a statement as to the nature
thereof and the action which the Borrower proposes to take with respect
thereto;
(e) As soon as practicable and in any event within 60 days after the
end of each of the first three quarterly fiscal periods in each fiscal year
of the Borrower, a copy of the quarterly report of the Borrower for such
quarter on Form 10-Q filed by the Borrower with the SEC containing
financial statements of the Borrower for such quarterly period, including,
but not limited to, a balance sheet of the Borrower as of the close of each
quarterly fiscal period and statements of income and retained earnings and
statement of cash flows for that portion of the fiscal year-to-date then
ended, together with (a) an affidavit of a Responsible Officer as to their
completeness and correctness subject to their changes resulting form year-
end adjustments, and as to their preparation in accordance with generally
accepted accounting principles consistently applied and (b) a certificate
of a principal financial officer of the Borrower stating that no Event of
Default or event which, with notice or lapse of time or both, would
constitute an Event of Default or such event has occurred and is
continuing, a statement as to the nature thereof and the action which the
Borrower proposes to take with respect thereto.
(f) as soon as practicable and in any event within 60 days after the
end of each of the first three quarterly fiscal periods in each fiscal year
of the Borrower and within 120 days after the end of each fiscal year of
the Borrower, a certificate of a Responsible Officer setting forth the
Borrower's computation of the financial ratio referred to in Section 7.6 as
of such fiscal quarter;
(g) as soon as possible and in any event (i) within 30 days after the
Borrower or any of its ERISA Affiliates knows or has reason to know that
any Termination Event described in clause (a) of the definition of
Termination Event with respect to any Plan has occurred, and (ii) within
ten days after the Borrower or any of its ERISA Affiliates knows or has
reason to know that any other Termination Event with respect to any Plan
has occurred, a statement of a Responsible Officer describing such
Termination Event and the action, if any, which the Borrower or such ERISA
Affiliate, as the case may be, proposes to take with respect thereto;
(h) as soon as practicable after becoming aware thereof, a statement
of a Responsible Officer of the existence of any Lien (other than security
interests created by the Loan Documents or Permitted Liens) on, or claim
asserted against, any of Borrower's property;
(i) within five days after the same are sent, copies of all financial
statements and reports which the Borrower sends to its stockholders, and
within five days after the same are filed, copies of all financial
statements and reports which the Borrower may make to, or file with, the
SEC or any successor or analogous Governmental Authority; and
(j) such other information respecting the business, properties, or
financial condition of the Borrower as the Agent or any Lender through the
Agent may from time to time reasonably request.
SECTION 6.8 Indemnification. At all times, indemnify the Lenders
as set forth in Section 2.15 herein.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect or any amount is owing to any Lender or the Agent hereunder or under
any other Loan Document or any Letter of Credit, the Borrower shall not,
directly or indirectly:
SECTION 7.1 Liens. Create, incur, assume or suffer to exist any
Lien, upon or with respect to any of its properties or assets, except for
Permitted Liens.
SECTION 7.2 Sale of Assets. Except as otherwise permitted under
this Section 7.2 hereof, sell, lease, transfer, or otherwise dispose of a
substantial portion of its assets, except in the ordinary course of
business, without first obtaining the express prior written consent of the
Agent thereto; provided that such consent shall be required for any such
sale, lease, transfer or other disposition that may reasonably result in a
material adverse change in the business, operations, assets, liabilities,
financial condition, results of operations or business prospects of the
Borrower or its ability to perform its obligations under this Agreement or
any Letters of Credit or any other agreement or instrument relating thereto
and to the transactions contemplated thereby.
SECTION 7.3 Mergers, Etc. Merge with or into or consolidate with
or into, or convey, transfer, lease or otherwise dispose of (wether in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to, or acquire all or
substantially all of the assets, other than utility assets, of, any Person
to the extent that such purchase materially changes the Borrower's
business, except that the Borrower may merge or consolidate with any Person
on condition in each case that, (i) immediately after giving effect
thereto, no event shall occur and be continuing which constitutes an Event
of Default or which with the giving of notice or lapse of time, or both,
would constitute an Event of Default, (ii) the consolidation or merger
shall not materially adversely affect the ability of the Borrower to
perform its obligations hereunder or under this Agreement or any Letters of
Credit or any other agreement or instrument relating thereto and to the
transactions contemplated thereby, and (iii) in the case of any merger or
consolidation to which the Borrower is a party, the corporation formed by
any such consolidation or into which the Borrower shall be merged shall
assume the Borrower's obligations and performance of the Borrower's
covenants hereunder and under this Agreement, or any other agreement or
instrument relating thereto and to the transactions contemplated thereby in
a writing satisfactory in form and substance to the Agent.
SECTION 7.4 Compliance with ERISA. Permit to exist any occurrence
of any Reportable Event, or any other event or condition, which presents a
material (in the reasonable opinion of the Required Lenders) risk of a
termination by the PBGC of any Plan of the Borrower or any ERISA Affiliate,
which termination will result in any material (in the reasonable opinion of
the Required Lenders) liability of the Borrower or such ERISA Affiliate to
the PBGC.
SECTION 7.5 Change in Nature of Business. Make any material
change in the nature of its business as carried on at the date hereof that
would or could reasonably have a material adverse effect on the financial
condition or results of operations of the Borrower or the ability of the
Borrower to perform its obligations under any Loan Document.
SECTION 7.6 Consolidated Leverage Ratio. Permit a Consolidated
Leverage Ratio to be greater than 0.50 to 1.0.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1 Events of Default. If any of the following events
(each, an "Event of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Note when due
in accordance with the terms hereof or thereof; or the Borrower shall fail
to pay any interest on any Loan or Note, or any other amount payable
hereunder, within five days after the same shall become due and payable in
accordance with the terms hereof or thereof; or
(b) Any representation or warranty made or deemed made by the
Borrower herein or in any other Loan Document, or which is contained in any
certificate furnished by it at any time under or in connection with this
Agreement shall prove to have been incorrect in any material respect on or
as of the date made or deemed made; or
(c) The Borrower shall default in the performance or observance of
its covenant and agreement contained in Section 7.6; or
(d) The Borrower shall default in the performance or observance of
any other agreement contained in this Agreement (other than as provided in
paragraphs (a) through (c) of this Section 8.1), and such default shall
continue unremedied for a period of 30 days after notice thereof has been
given to the Borrower by the Agent; or
(e) The Borrower or any of its Consolidated Subsidiaries, shall:
(i) fail to pay any Indebtedness (other than the payment obligations
described in Section 8.1(a) above) in excess of $5,000,000 or any interest
or premium thereon, when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) and such failure shall
continue after the applicable grace period, if any, specified in the
instrument or agreement relating to such Indebtedness; or (ii) fail to
perform or observe any term, covenant or condition on its part to be
performed or observed under any agreement or instrument relating to any
such Indebtedness, when required to be performed or observed, if the effect
of such failure to perform or observe is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness, unless the obligee
under or holder of such Indebtedness shall have waived in writing such
circumstance, or such circumstance has been cured, so that such
circumstance is no longer continuing; or (iii) have such Indebtedness
declared to be due and payable, or required to be prepaid (other than by
regularly scheduled required prepayment), in each case in accordance with
the terms of such agreement or instrument, prior to the stated maturity
thereof; or (iv) generally not, or shall admit in writing its inability to,
pay its debts as such debts become due; or
(f) (i) The Borrower shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic
or foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or the Borrower shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against the Borrower, any
case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against
the Borrower, any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of an
order for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or
(iv) the Borrower shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set forth
in clause (i), (ii), or (iii) above; or (v) the Borrower shall generally
not, or shall be unable to, or shall admit in writing its inability to, pay
its debts as they become due; or
(g) Any Termination Event with respect to a Plan of the Borrower
shall have occurred, and 30 days after notice thereof shall have been given
to the Borrower by the Agent, (i) such Termination Event (if correctable)
shall not have been corrected, and (ii) the then present value of such
Plan's vested benefits exceeds the then current value of the assets
accumulated in such Plan by more than the amount of $5,000,000 (or in the
case of a Termination Event involving the withdrawal of a "substantial
employer" (as defined in Section 4001(A)(2) of ERISA), the withdrawing
employer's proportionate share of such excess shall exceed such amount); or
(h) One or more judgments, decrees or orders for the payment of money
in excess of $5,000,000, in the aggregate shall be rendered against the
Borrower and either (i) enforcement proceedings shall have been commenced
by any creditor upon any such judgment or order or (ii) there shall be any
period of more than 30 consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(i) any Change of Control shall occur; or
(j) any Event of Default under and as defined in the Existing Letter
of Credit Agreements shall occur and be continuing; or
(k) any Loan Document shall be or become invalid or otherwise
unenforceable;
then, and in any such event, (A) if such event is an Event of Default
specified in paragraph (f) of this Section, automatically the Commitments
shall immediately terminate and the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement shall immediately
become due and payable, and (B) if such event is any other Event of
Default, either or both of the following actions may be taken: (i) with
the consent of the Required Lenders, the Agent may, or upon the request of
the Required Lenders, the Agent shall, by notice to the Borrower declare
the Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the Required Lenders,
the Agent may, or upon the request of the Required Lenders, the Agent
shall, by notice to the Borrower, declare the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement to be
due and payable forthwith, whereupon the same shall immediately become due
and payable.
ARTICLE IX
THE AGENT
SECTION 9.1 Appointment. Each Lender hereby irrevocably designates
and appoints, and hereby agrees that it will require any transferee of any
of its interest in the Loans and the other Loan Documents irrevocably to
designate and appoint, the Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Agent, in such capacity, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to
the Agent by the terms of this Agreement and the other Loan Documents,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement,
the Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities, duties, obligations
or liabilities shall be read into this Agreement or any other Loan Document
or otherwise exist against the Agent.
SECTION 9.2 Delegation of Duties. The Agent may execute any of
its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
SECTION 9.3 Exculpatory Provisions. Neither the Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by
it or such Person under or in connection with this Agreement or any other
Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders
for any recitals, statements, representations or warranties made by the
Borrower or any officer thereof contained in this Agreement or any other
Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agent under or in
connection with, this Agreement or any other Loan Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any other Loan Document or for any failure of the
Borrower to perform its obligations hereunder or thereunder. The Agent
shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in,
or conditions of, this Agreement or any other Loan Document, or to inspect
the properties, books or records of the Borrower.
SECTION 9.4 Reliance by Agent. The Agent shall be entitled to
rely, and shall be fully protected in relying, upon any Note, writing,
resolution, notice, consent, certificate, affidavit, letter or telecopy
message, statement, order or other document or conversation believed by it
to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Agent. The Agent may deem
and treat the payee of any Note as the owner thereof for all purposes
unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Agent. The Agent shall be fully justified
in failing or refusing to take any action under this Agreement or any other
Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and
the other Loan Documents in accordance with a request of the Required
Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Loans.
SECTION 9.5 Notice of Default. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Agent has received notice from a Lender or the
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the
event that the Agent receives such a notice, the Agent shall give notice
thereof to the Lenders. The Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the
Required Lenders; provided that unless and until the Agent shall have
received such directions, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
SECTION 9.6 Non-Reliance on Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Agent
hereinafter taken, including any review of the affairs of the Borrower,
shall be deemed to constitute any representation or warranty by the Agent
to any Lender. Each Lender represents to the Agent that it has,
independently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness of the
Borrower and made its own decision to make its Loans hereunder and enter
into this Agreement. Each Lender also represents that it will,
independently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan
Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrower. Except for notices,
reports and other documents expressly required to be furnished to the
Lenders by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come
into the possession of the Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
SECTION 9.7 Indemnification. The Lenders agree to indemnify the
Agent in its capacity as such (to the extent not reimbursed by the Borrower
and without limiting the obligation of the Borrower to do so), ratably
according to their respective Commitment Percentages in effect on the date
on which indemnification is sought (or, if indemnification is sought after
the date upon which the Commitments shall have terminated and the Loans
shall have been paid in full, ratably in accordance with their Commitment
Percentages immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at
any time (including, without limitation, at any time following the payment
of the Loans) be imposed on, incurred by or asserted against the Agent in
any way relating to or arising out of, the Commitments, this Agreement, any
of the other Loan Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting
solely from the Agent's gross negligence or willful misconduct. The
agreements in this Section 9.7 shall survive the payment of the Loans and
all other amounts payable hereunder.
SECTION 9.8 Agent in Its Individual Capacity. The Agent and its
Affiliates may make loans to, accept deposits from and generally engage in
any kind of business with the Borrower as though the Agent were not the
Agent hereunder and under the other Loan Documents. With respect to the
Loans made by it, the Agent shall have the same rights and powers under
this Agreement and the other Loan Documents as any Lender and may exercise
the same as though it were not the Agent, and the terms "Lender" and
"Lenders" shall include the Agent in its individual capacity.
SECTION 9.9 Successor Agent. The Agent may resign as Agent upon
10 days' notice to the Lenders. If the Agent shall resign as Agent under
this Agreement and the other Loan Documents, then the Required Lenders
shall appoint from among the Lenders a successor agent for the Lenders,
which successor agent shall be approved by the Borrower, whereupon such
successor agent shall succeed to the rights, powers and duties of the
Agent, and the term "Agent" shall mean such successor agent effective upon
such appointment and approval, and the former Agent's rights, powers and
duties as Agent shall be terminated, without any other or further act or
deed on the part of such former Agent or any of the parties to this
Agreement or any holders of the Loans. After any retiring Agent's
resignation as Agent, the provisions of this Section 9.9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement and the other Loan Documents.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Amendments and Waivers. Neither this Agreement nor
any other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
Section 10.1. The Required Lenders may, or, with the written consent of
the Required Lenders, the Agent may, from time to time, (a) enter into with
the Borrower written amendments, supplements or modifications hereto and to
the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights
of the Lenders or of the Borrower hereunder or thereunder or (b) waive, on
such terms and conditions as the Required Lenders or the Agent, as the case
may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default
and its consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall (i) reduce the amount or extend
the scheduled date of maturity of any Loan or of any installment thereof,
or reduce the stated rate of any interest or fee payable hereunder or
extend the scheduled date of any payment thereof or increase the amount or
extend the expiration date of any Lender's Commitment, in each case without
the consent of each Lender affected thereby, or (ii) amend, modify or waive
any provision of this Section 10.1 or reduce the percentage specified in
the definition of Required Lenders or Majority Lenders, or consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement and the other Loan Documents or release all or
substantially all of the Collateral, in each case without the written
consent of all the Lenders, or (iii) amend, modify or waive any provision
of Article IX without the written consent of the then Agent. Any such
waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Borrower, the
Lenders, the Agent and all future holders of the Loans. In the case of any
waiver, the Borrower, the Lenders and the Agent shall be restored to their
former positions and rights hereunder and under the other Loan Documents,
and any Default or Event of Default waived shall be deemed to be cured and
not continuing; no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon.
SECTION 10.2 Notices. (a) Except as otherwise expressly
provided herein, all notices and other communications under this Agreement
shall be in writing and shall be sufficiently given if made by hand
delivery, by overnight courier service, by facsimile, or by registered or
certified mail, postage-prepaid and return receipt requested, to the party
to which such notice is directed at its address as follows:
(i) If to the Borrower, to it at:
Central Vermont Public Service Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx, 00000
Attn: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(ii) If to the Agent, to it at:
Toronto Dominion (Texas), Inc.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Manager, Agency
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(iii) If to the Lenders, to them at the addresses set forth opposite
their names on Schedule 1 hereto.
(b) Any notice or other communication under this Agreement shall be
deemed to have been duly given or made as of the date delivered, if by hand
delivery or overnight courier service; when receipt is confirmed, if by
facsimile; and five calendar days after mailing, if by registered or
certified mail as provided herein; provided that any notice, request or
demand to or upon the Agent or the Lenders pursuant to Section 2.2, 2.4,
2.5, 2.6, 2.7, 2.9, 2.10 or 2.11 shall not be effective until received.
(c) Any party hereto may designate additional or different addresses
to which notices hereunder shall be directed by giving written notice
thereof to the other parties as provided herein.
SECTION 10.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Agent or any
Lender, any right, remedy, power or privilege hereunder or under the other
Loan Documents shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
SECTION 10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents
and in any document, certificate or statement delivered pursuant hereto or
in connection herewith shall survive the execution and delivery of this
Agreement and the making of the Loans hereunder.
SECTION 10.5 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 in connection
with the administration of and performance of its obligations under the
Loan Documents or the enforcement or protection of the rights of the Agent
or the Lenders under the Loan Documents or in connection with the Loans
made or the Notes issued hereunder or the other transactions contemplated
hereby, including the fees and disbursements of Paul, Hastings, Xxxxxxxx &
Xxxxxx LLP, counsel for the Agent. The Borrower further agrees that it
shall indemnify the Lenders and the Agent 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 each Lender and the Agent and
their directors, officers, employees and agents (each such Person being
called an "Indemnitee") against, and to hold each Indemnitee harmless from,
any and all actual (and not consequential) losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees and
expenses, 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 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 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
or from the breach by such Indemnitee of its obligations hereunder.
(c) The provisions of this Section 10.5 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 any Indemnitee. All amounts due
under this Section 10.5 shall be payable on written demand therefor,
subject to the right of the indemnifying party to challenge such payment in
good faith as set forth in this Section 10.5.
SECTION 10.6 Successors and Assigns; Participations and
Assignments. (a) This Agreement shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Agent and their respective
successors and assigns, except that the Borrower may not assign or transfer
any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
(b) Subject to the consent of the Borrower (except if the Borrower is
in default pursuant to Section 8(f)) and the Agent, which consent may not
be unreasonably withheld, any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable law, at any
time sell to one or more banks or other entities ("Participants")
participating interests in any Loan owing to such Lender, any Commitment of
such Lender or any other interest of such Lender hereunder and under the
other Loan Documents in an amount equal to the greater of $5,000,000 (or
any multiple thereof) and the entire amount of the then outstanding Loans
of such selling Lender. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's obligations under
this Agreement to the other parties to this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the performance
thereof, such Lender shall remain the holder of any such Loan for all
purposes under this Agreement and the other Loan Documents, and the
Borrower and the Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. The Borrower agrees that if
amounts outstanding under this Agreement are due or unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of
an Event of Default, each Participant shall, to the maximum extent
permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement
to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement. The Borrower also
agrees that each Participant shall be entitled to the benefits of Sections
2.12, 2.13, 2.14 and 2.15 with respect to its participation in the
Commitments and the Loans outstanding from time to time as if it was a
Lender; provided that, in the case of Section 2.14, such Participant shall
have complied with the requirements of said Section 2.14; and provided,
further, that no Participant shall be entitled to receive any greater
amount pursuant to any such Section than the transferor Lender would have
been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such
transfer occurred.
(c) Subject to the consent of the Borrower (except if the Borrower is
in default pursuant to Section 8(f)) and the Agent, which consent may not
be unreasonably withheld, any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable law, at any
time and from time to time assign to any Lender or any affiliate thereof
or, with the reasonable consent of the Borrower and the Agent (which in
each case shall not be unreasonably withheld), to an additional bank or
financial institution (an "Assignee") all or any part of its rights and
obligations under this Agreement and the other Loan Documents pursuant to
an assignment and acceptance in form reasonably satisfactory to the Agent
and the Borrower (an "Assignment and Acceptance"), executed by such
Assignee, such assigning Lender (and, in the case of an Assignee that is
not then a Lender or an affiliate thereof, by the Agent) and delivered to
the Agent. Upon such execution, delivery, acceptance and recording, from
and after the effective date determined pursuant to such Assignment and
Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with a Commitment as set forth therein,
and (y) the assigning Lender thereunder shall, to the extent provided in
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and obligations under
this Agreement, such assigning Lender shall cease to be a party hereto).
Notwithstanding any provision of this paragraph (c) and paragraphs (a) and
(e) of this subsection, the consent of the Borrower shall not be required,
and unless requested by the Assignee and/or the assigning Lender, new Notes
shall not be required to be executed and delivered by the Borrower, for any
assignment which occurs at any time when the events described in Section
8(f) shall have occurred and be continuing.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an affiliate thereof, by the Agent), the Agent shall
(i) promptly accept such Assignment and Acceptance and (ii) on the
effective date determined pursuant thereto record the information contained
therein in its register and give notice of such acceptance and recordation
to the Lenders and the Borrower.
(e) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective
Transferee any and all financial information in such Lender's possession
concerning the Borrower and its Affiliates which has been delivered to such
Lender by or on behalf of the Borrower pursuant to this Agreement or which
has been delivered to such Lender by or on behalf of the Borrower in
connection with such Lender's credit evaluation of the Borrower and its
Affiliates prior to becoming a party to this Agreement.
(f) Any Lender may at any time assign all or any portion of its
rights under this Agreement and any of its Notes to a Federal Reserve Bank.
No such assignment shall release the transferor Lender from its obligations
hereunder.
SECTION 10.7 Right of Setoff. If an Event of Default shall have
occurred and be continuing, each of the Lenders 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 Lender to or for the credit or the account of the Borrower
against any and all the obligations, of the Borrower now or hereafter
existing under this Agreement and the other Loan Documents held by such
Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement, or such other Loan Document and although such
obligations may be contingent or unmatured. The rights of each of the
Lenders under this Section 10.7 are in addition to other rights and
remedies (including other rights of setoff) which it may have.
SECTION 10.8 Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
SECTION 10.9 Integration. This Agreement represents the agreement
of the Borrower, the Agent and the Lenders with respect to the subject
matter hereof, and there are no promises, undertakings, representations or
warranties by the Agent or any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
SECTION 10.10 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 10.11 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENT AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 10.12 Submission To Jurisdiction; Waivers. The Borrower
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgement in
respect thereof, to the non-exclusive general jurisdiction of the federal
and state courts sitting in the State of New York, and the appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in Section 10.2 or at such other address
of which the Agent shall have been notified pursuant thereto; and
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction.
SECTION 10.13 Acknowledgments. The Borrower hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Agent nor any Lender has any fiduciary relationship
with or duty to the Borrower arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship between
Agent and Lenders, on one hand, and the Borrower, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Lenders or among the Borrower and the Lenders.
SECTION 10.14 Counterparts. This Agreement may be executed by one
or more of the parties to this Agreement on any number of separate
counterparts (including by facsimile transmission), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed and delivered by their proper and duly authorized officers as of
the date first above written.
CENTRAL VERMONT PUBLIC SERVICE CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: Treasurer
TORONTO DOMINION (TEXAS), INC.,
as Agent
By: /s/ Xxxx Xxxx
Name: Xxxx Xxxx
Title: Vice President
LENDERS:
TORONTO DOMINION (NEW YORK), INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BANKBOSTON, N.A.
By: /s/ Xxxxxxxx Xxxx
Name: Xxxxxxxx Xxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Director
CITIZENS BANK NEW HAMPSHIRE
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
Schedule 1
COMMITMENTS OF THE LENDERS
Lender Address Commitment Commitment
Percentage
------ ------- ---------- ----------
Toronto Dominion 909 Fannin, Houston,
(New York), Inc. XX 00000 $15,000,000 30%
BankBoston 000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000 10,000,000 20%
Citizens Bank 00 Xxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000 7,500,000 15%
Fleet National Bank Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000 17,500,000 35%
Total $50,000,000 100%
Schedule 2
to
CREDIT AGREEMENT
FORM OF REVOLVING LOAN NOTE
November__, 1997
$XX,000,000 New York, New York
For value received, CENTRAL VERMONT PUBLIC SERVICE CORPORATION, a
Vermont corporation (the "Borrower"), hereby unconditionally promises to
pay on the Revolving Loan Maturity Date to the order of [each Lender], (the
"Lender"), in lawful money of the United States of America and in
immediately available funds, a principal sum equal to _____________________
Dollars ($XX,000,000.00) or, if less, the aggregate unpaid principal amount
of all Revolving Loans made by the Lender to the Borrower under and
pursuant to the Credit Agreement dated as of November __, 1997 (as amended
from time to time, the "Credit Agreement"), among the Borrower, the lenders
from time to time party thereto, including the Lender, and Toronto Dominion
(Texas), Inc., as Agent (together with its successors in such capacity, the
"Agent") and as Agent. The Borrower further agrees to pay interest in like
money on the unpaid principal amount hereof from time to time outstanding
at the rates and on the dates determined in accordance with the Credit
Agreement. All payments of principal and interest with respect to this
Note shall be made by the Borrower at the office of the Agent at 000
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, or such other office as shall be
from time to time specified by the Agent to the Borrower.
The holder of this Note shall, and is hereby irrevocably authorized by
the Borrower to, endorse on the Loan Schedule attached hereto and forming a
part hereof (and on separate continuations of such Loan Schedule which
shall be attached hereto and form a part hereof), or otherwise to record on
the Lender's internal records, appropriate notations evidencing the date,
Type and amount of each Revolving Loan made under and pursuant to the
Credit Agreement, each continuation thereof, each conversion of all or a
portion thereof to another Type, the date and amount of each payment or
prepayment of principal of this Note which is received by the Lender and,
in the case of Eurodollar Loans, the length of each Interest Period with
respect thereto, which recordation shall constitute prima facie evidence of
the accuracy of the information so recorded; provided that failure by the
Lender to make any such notations or any error therein shall not affect any
of the Borrower's obligations in respect of this Note or obligate the
Borrower to pay any amounts in excess of the amounts otherwise payable by
the Borrower hereunder.
This Note is one of the Revolving Loan Notes referred to in the Credit
Agreement and any holder hereof is entitled to all of the rights, remedies,
benefits and privileges provided for in the Credit Agreement, which, among
other things, contains provisions for the repayment hereof and also for
optional and mandatory prepayments hereof under certain conditions. Upon
the occurrence of any one or more of the Events of Default specified in the
Credit Agreement, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all as
provided in the Credit Agreement.
The Borrower waives presentment, demand, protest, notice of protest,
notice of nonpayment or dishonor and all other demands and notices in
connection with the delivery, acceptance, performance, default or
enforcement of this Note (other than such of the foregoing as are expressly
required by the terms of the Credit Agreement) and, to the fullest extent
permitted by applicable law, assents to any extension or postponement of
the time of payment or any other indulgence, to any substitutions, exchange
or release of collateral and to the addition or release of any other party
or person, primarily or secondarily liable.
Terms defined in the Credit Agreement are used herein as therein
defined.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK DETERMINED WITHOUT REFERENCE TO PRINCIPLES OF
CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Borrower has caused this Revolving Loan Note
to be duly executed and delivered under seal by its officer thereunto duly
authorized as of the date hereof.
CENTRAL VERMONT PUBLIC
SERVICE CORPORATION
By:
Name:
Title:
LOAN SCHEDULE TO REVOLVING LOAN NOTE
Loans, Conversions and Payments of ABR Loans
Date
Amount of ABR Loans
Amount of Principal Repaid
Amount of ABR Loans Converted to Eurodollar Loans
Amount of Eurodollar Loans Converted to ABR Loans
Unpaid Principal Balance of ABR Loans
Notation Made By
LOAN SCHEDULE TO REVOLVING LOAN NOTE
Loans, Conversions and Payments of Eurodollar Loans
Date
Amount of Eurodollar Loans
Amount of Principal Repaid
Amount of Eurodollar Loans Converted to ABR Loans
Amount of ABR Loans Converted to Eurodollar Loans
Unpaid Principal Balance of Eurodollar Loans
Notation Made By
Schedule 3
of the Credit Agreement
[Form of Opinion of Counsel to the Borrower]
November __, 1997
The Toronto-Dominion Bank
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Ladies and Gentlemen:
I am [General Counsel] to Central Vermont Public Service Corporation,
a corporation organized and existing under the laws of the State of Vermont
(the "Company"). In that capacity I am familiar with the matters relating
to the preparation, execution and delivery of a Credit Agreement (the
"Credit Agreement") dated as of October __, 1997 among the Company and
Toronto-Dominion (Texas), Inc. (the "Bank") and the Lenders named therein.
This opinion is furnished to you pursuant to Section 5.1(b) of the
Credit Agreement. Terms used herein which are defined in the Credit
Agreement shall have the respective meanings set forth therein unless
otherwise defined herein.
I have examined copies of the following instruments and documents:
(i) the Articles of Association and By-laws of the Company; (ii) the Credit
Agreement; (iii) the resolutions dated October 6, 1997, of the Company's
Board of Directors; (iv) the Existing Letter of Credit; and (v) the other
Loan Documents. I have also reviewed, and to the extent I have deemed
appropriate relied upon, certificates of officers of the Company or of
government officials as to certain factual matters. In addition, I have
reviewed such other instruments and documents as I have deemed necessary or
appropriate as the basis for the opinion hereinafter expressed, and I have
conducted such other investigations of fact and law as I have considered
appropriate.
I have made no investigation with respect to the franchises, licenses
and permits of the company in the State of New Hampshire, or with respect
to the jurisdiction of the New Hampshire Public Utilities Commission over
the execution, delivery and performance by the Company of the Credit
Agreement, as to which matters I refer you to the opinion of Ransmeier &
Xxxxxxxx of even date herewith, a copy of which has been furnished to me
and upon which I am relying with respect to such matters. I have made no
investigation with respect to the franchises, licenses and permits of the
Company in the State of Connecticut, or with respect to the jurisdiction of
the Connecticut Department of Business Regulation - Division of Public
Utility Control over the execution, delivery and performance by the Company
of the Credit Agreement, as to which matters I refer to the opinion of Day,
Xxxxx & Xxxxxx of even date herewith, a copy of which has been furnished to
me and upon which I am relying with respect to such matters. I have made
no investigation with respect to the franchises, licenses and permits of
the Company in the State of Maine, or with respect to the jurisdiction of
the Maine Public Utilities Commission over the execution, delivery and
performance by the Company of the Credit Agreement, as to which matters I
refer you to the opinion of Xxxxxxx & Xxxx of even date herewith, a copy of
which has been furnished to me and upon which I am relying with respect to
such matters. I have made no investigation with respect to the franchises,
licenses and permits of the Company in the State of New York or with
respect to the jurisdiction of the New York Public Service Department -
Utilities Efficiency Division over the execution, delivery and performance
by the Company of the Credit Agreement, as to which matters I refer you to
the opinion of _____________ of even date herewith, a copy of which has
been furnished to me and upon which I am relying with respect to such
matters.
Based upon the foregoing I am of the opinion that:
1. The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Vermont and is duly
qualified to do business in and is in good standing as a foreign
corporation under the laws of the States of New Hampshire, Connecticut,
Maine and New York and of any other state in which the ownership of its
properties or the conduct of its business makes such qualification
necessary.
2. The execution, delivery and performance by the Company of the
Loan Documents are within the Company's corporate power, has been duly
authorized by all necessary corporate action, and does not contravene (i)
the Company's Articles of Association or By-laws, (ii) any law, rule or
regulation applicable to the Company or (iii) any contractual or legal
restriction binding on or affecting the Company, and does not result in or
require the creation of any Lien, security interest or other charge or
encumbrance upon or with respect to any of its properties.
3. No authorization, approval or other action by, and no notice to
or filing or registration with, any Governmental Authority or regulatory
body including, without limitation, the Industrial Development Authority of
the State of Vermont, the Vermont Public Service Board, the New Hampshire
Public Utilities Commission, the Connecticut Department of Business
Regulation - Division of Public Utility Control, the New York Public
Service Department - Utilities Efficiency Division and the Maine Public
Utilities Commission is required for the due execution, delivery and
performance by the Company of the Loan Documents (other than approvals or
waivers, as the case may be, from appropriate governmental authorities or
regulatory bodies of each of the States of Vermont, New Hampshire,
Connecticut, Maine and New York, which may be necessary for extension of
the Maturity Date pursuant to Section 2.6(b) of the Credit Agreement, as to
which approvals or waivers I express no opinion herein).
4. Each of the Credit Agreement and the other Loan Documents to
which the Company is a party is a legally valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws or equitable principles affecting
creditors' rights generally.
5. There is no pending action or proceeding before any court,
governmental agency or arbitrator against or directly involving the Company
and, to the best of the Company's knowledge, there is no threatened action
or proceeding affecting the Company before any court, governmental agency
or arbitrator which, in any case, may materially and adversely affect the
financial condition or operations of the Company or which seeks to restrain
or would otherwise have a material adverse effect on the transactions
contemplated by the Loan Documents.
I express no opinion as to any question of law other than the law of
the State of Vermont and the law of the United States of America.
Very truly yours,
Schedule 4
To Credit Agreement
BORROWING CERTIFICATE
This Borrowing Certificate is provided as of this ___ day of
__________, 199_ pursuant to Section 5.2(c) of the Credit Agreement, dated
as of November __, 1997 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among Central Vermont Public
Service Corporation (the "Borrower"), the Lenders named therein, and
Toronto Dominion (Texas), Inc., as Agent.
The undersigned Responsible Officer of the Borrower hereby certifies
that:
1. The undersigned Responsible Officer of the Borrower is familiar
with the terms of the Credit Agreement.
2. Each of the representations and warranties made by the Borrower
and set forth in the Credit Agreement and the other Loan Documents or
contained in any certificate, document or financial or other statement
furnished pursuant thereto or in connection therewith is true and correct
in all material respects on and as of the date hereof with the same effect
as if made on the date hereof.
3. Immediately prior to and immediately after the making of the Loans
requested hereby, no Default or Event of Default has or will have occurred
and be continuing.
4. Each of the conditions precedent for the making of the Loans
requested hereby set forth in Article V of the Credit Agreement have been
satisfied.
5. The Borrower hereby requests that Loans in the aggregate amount of
$____________ be made by the Lenders as follows:
Borrowing Date:
Term Loan:
Eurodollar Loan: $ Interest Period:
ABR Loan: $
Revolving Loan:
Eurodollar Loan: $ Interest Period:
ABR Loan: $
6. The Borrower hereby requests that the proceeds of such Loans be
made available to the Borrower by wiring such amount in immediately
available funds to the following account:
Bank:____________________________________
ABA No.:_________________________________
Account No.:_____________________________
Account Name:____________________________
Reference:_______________________________
7. The Borrower represents that the attached Schedule accurately
lists the date, the Lender, the amount and the status of each borrowing
heretofore made pursuant to the Credit Agreement, and has been updated upon
each such borrowing.
Capitalized items not otherwise defined herein shall have the meanings
ascribed thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned duly authorized officer of the
Borrower has hereunto set his or her hand as of the date first above
written.
CENTRAL VERMONT PUBLIC
SERVICE CORPORATION
By:_____________________________
Name:
Title:
LOAN SCHEDULE TO BORROWING NOTICE NOTE
Date
Amount of Eurodollar Loans
Amount of Eurodollar Loans Converted to ABR Loans
Amount of ABR Loans Converted to Eurodollar Loans
Amount of Auction Advances
Notation Made By
Schedule 5
To Credit Agreement
Notice to Borrower of Auction Offer
Central Vermont Public Service Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Cash Management Coordinator
In respect of your Notice of an Auction Borrowing of even date
herewith pursuant to Section 3.1(a)(i) of the Credit Agreement dated as of
November __, 1997 among Toronto Dominion (Texas), Inc., the Lenders named
therein and you, the undersigned proposes to make an Auction Offer with the
following terms:
Minimum Amount: $______________
Maximum Amount: S______________
Interest Rate: _______________
Interest Period: _______________
Applicable Lending Office: _______________
_______________
_______________
We await your response.
[Lender]_________________________
Name: ___________________________
Title: __________________________
Duly Authorized
Schedule 6
To Credit Agreement
Responsible Officer Letter
Toronto Dominion (Texas), Inc.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Manager, Agency
Re: Responsible Officer/
Central Vermont Credit Facility
Dear Sirs:
Pursuant to the Terms of the Credit Agreement dated as of
_________________, 1997 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement") among Central Vermont Public
Service Corporation, the Lenders named therein, and Toronto Dominion
(Texas), Inc., as Agent, the undersigned hereby designates the following
persons as "Responsible Officers" of the Borrower pursuant to the terms of
the Credit Agreement:
______________________
______________________
______________________
Very truly yours,
_____________________________
[Chief Financial Officer, President or Treasurer]
Schedule 7
To Credit Agreement
Form of Auction Note
Up to U.S.$25,000,000 Dated: November __, 1997
FOR VALUE RECEIVED, the undersigned, Central Vermont Public Service
Corporation, a Vermont corporation (the "Borrower"), HEREBY PROMISES TO PAY
TO the order of _______________ (the "Lender") for the account of its
Applicable Lending Officer (as defined in the Credit Agreement dated as of
November 5, 1997 (the "Credit Agreement"), on or after November 7, 1997,
the principal amount of up to Twenty Five Million Dollars ($25,000,000).
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at
the interest rate and payable on the interest payment date or dates
provided in the Notice to Borrower of Auction Offer.
Both principal and interest are payable in lawful money of the United
States of America to or the account of the Lender at its office, in same
day funds, free and clear of and without any deduction, with respect to the
payee named above, for any and all present and future taxes, deductions,
charges or withholdings (other than United States withholding taxes, if
applicable), and all liabilities with respect thereto.
The holder of this Note shall, and is hereby irrevocably authorized by
the Borrower to, endorse on the Loan Schedule attached hereto and forming a
part hereof (and on separate continuations of such Loan Schedule which
shall be attached hereto and form a part hereof), or otherwise to record on
the Lender's internal records, appropriate notations evidencing the date
and amount of each Auction Borrowing made under and pursuant to the Credit
Agreement, each continuation thereof, the date and amount of each payment
or prepayment of principal of this Note which is received by the Lender,
which recordation shall constitute prima facie evidence of the accuracy of
the information so recorded; provided that failure by the Lender to make
any such notations or any error therein shall not affect any of the
Borrower's obligations in respect of this Note or obligate the Borrower to
pay any amounts in excess of the amounts otherwise payable by the Borrower
hereunder.
This Note is the Auction Note referred to in the Credit Agreement, and
any holder hereof is entitled to all of the rights, remedies, benefits and
privileges provided for in the Credit Agreement. Upon the occurrence of
any one or more of the Events of Default specified in the Credit Agreement,
all amounts then remaining unpaid on this Note shall become, or may be
declared to be, immediately due and payable, all as provided in the Credit
Agreement.
The Borrower waives presentment, demand, protest, notice of protest,
notice of nonpayment or dishonor and all other demands and notices in
connection with the delivery, acceptance, performance, default or
enforcement of this Note (other than such of the foregoing as are expressly
required by the terms of the Credit Agreement) and, to the fullest extent
permitted by applicable law, assents to any extension or postponement of
the time of payment or any other indulgence, to any substitutions, exchange
or release of collateral and to the addition or release of any other party
or person, primarily or secondarily liable.
Terms defined in the Credit Agreement are used herein as therein
defined.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK DETERMINED WITHOUT REFERENCE TO PRINCIPLES OF
CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Borrower has caused this Auction Note to be
duly executed and delivered under seal by its officer thereunto duly
authorized as of the date hereof.
CENTRAL VERMONT PUBLIC
SERVICE CORPORATION
By:______________________
Name:
Title:
LOAN SCHEDULE TO AUCTION NOTE
Date
Amount of Auction Advance
Amount of Principal Repaid
Name of Lender
Unpaid Principal Balance of Auction Advance
Notation Made By
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1 Defined Terms 1
SECTION 1.2 Other Definitional Provisions 14
ARTICLE II
AMOUNT AND TERMS OF COMMITMENTS
SECTION 2.1 Revolving Loans 15
SECTION 2.2 Procedure for Revolving Loans 15
SECTION 2.3 Fees 16
SECTION 2.4 Interest Rates and Payment Dates 17
SECTION 2.5 Pro Rata Treatment 18
SECTION 2.6 Repayment of Loans; Term 19
SECTION 2.7 Payments 20
SECTION 2.8 Revolving Loan Note 20
SECTION 2.9 Optional Prepayments 21
SECTION 2.10 Conversion and Continuation Options 21
SECTION 2.11 Inability to Determine Interest Rate 22
SECTION 2.12 Change in Legality 23
SECTION 2.13 Increased Costs 23
SECTION 2.14 Taxes 25
SECTION 2.15 Indemnity 27
ARTICLE III
AUCTION ADVANCES
SECTION 3.1 The Auction Advance 28
SECTION 3.2 Conditions Precedent to Each Auction Borrowing 31
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 Incorporation and Good Standing 32
SECTION 4.2 Corporate Power and Authority 32
SECTION 4.3 No Conflicts 32
SECTION 4.4 Governmental Approvals 33
SECTION 4.5 Legally Enforceable Agreements 33
SECTION 4.6 Financial Statements 33
SECTION 4.7 Litigation 33
SECTION 4.8 Margin Stock 34
SECTION 4.9 ERISA 34
SECTION 4.10 Environmental Matters 34
SECTION 4.11 No Default; Compliance 35
SECTION 4.12 Investment Company Act 35
SECTION 4.13 Taxes 35
SECTION 4.14 No Material Adverse Effect 35
SECTION 4.15 Statements; Certificates 35
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.1 Conditions to Closing 36
SECTION 5.2 Conditions to Each Loan 37
ARTICLE VI
AFFIRMATIVE COVENANTS
SECTION 6.1 Payment of Taxes, Etc 38
SECTION 6.2 Maintenance of Insurance 38
SECTION 6.3 Preservation of Corporate Existence, Etc 38
SECTION 6.4 Compliance with Laws, Etc 39
SECTION 6.5 Visitation Rights 39
SECTION 6.6 Keeping of Books 39
SECTION 6.7 Reporting Requirements 39
ARTICLE VII
NEGATIVE COVENANTS
SECTION 7.1 Liens 41
SECTION 7.2 Sale of Assets 41
SECTION 7.3 Mergers, Etc 42
SECTION 7.4 Compliance with ERISA 42
SECTION 7.5 Change in Nature of Business 42
SECTION 7.6 Consolidated Leverage Ratio 42
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1 Events of Default 43
ARTICLE IX
THE AGENT
SECTION 9.1 Appointment 45
SECTION 9.2 Delegation of Duties 46
SECTION 9.3 Exculpatory Provisions 46
SECTION 9.4 Reliance by Agent 46
SECTION 9.5 Notice of Default 47
SECTION 9.6 Non-Reliance on Agent and Other Lenders 47
SECTION 9.7 Indemnification 48
SECTION 9.8 Agent in Its Individual Capacity 48
SECTION 9.9 Successor Agent 48
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Amendments and Waivers 49
SECTION 10.2 Notices 50
SECTION 10.3 No Waiver; Cumulative Remedies 51
SECTION 10.4 Survival of Representations and Warranties 51
SECTION 10.5 Expenses; Indemnity 51
SECTION 10.6 Successors and Assigns; Participations
and Assignments 52
SECTION 10.7 Right of Setoff 54
SECTION 10.8 Severability 55
SECTION 10.9 Integration 55
SECTION 10.10 GOVERNING LAW 55
SECTION 10.11 WAIVERS OF JURY TRIAL 55
SECTION 10.12 Submission To Jurisdiction; Waivers 55
SECTION 10.13 Acknowledgments 56
SECTION 10.14 Counterparts 56
SCHEDULES:
Schedule 1 Commitments of the Lenders
Schedule 2 Form of Revolving Loan Note
Schedule 3 Form of Opinion of Counsel to Borrower
Schedule 4 Borrowing Certificate
Schedule 5 Notice of an Auction Borrowing
Schedule 6 Notice to Borrower of Auction Offer
Schedule 7 Responsible Officer Letter
Schedule 8 Form of Auction Note
