EXECUTION COPY
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$5,700,000,000
COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of October 27, 2000
among
CITIZENS COMMUNICATIONS COMPANY
as Borrower
and
THE LENDERS NAMED HEREIN
as Lenders
and
THE CHASE MANHATTAN BANK
as Administrative Agent
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CHASE SECURITIES INC.
Lead Arranger and Sole Book Manager
BANK OF AMERICA, N.A.
CITIBANK, N.A.
BANK ONE, NA
Co-Syndication Agents
TABLE OF CONTENTS
Page
Article I
DEFINITIONS
Section 1.01. Defined Terms.......................................................................................4
Section 1.02. Terms Generally....................................................................................15
Article II
THE CREDITS
Section 2.01. Commitments........................................................................................16
Section 2.02. Loans..............................................................................................16
Section 2.03. Competitive Bid Procedure..........................................................................17
Section 2.04. Standby Borrowing Procedure........................................................................20
Section 2.05. Conversions........................................................................................20
Section 2.06. Fees...............................................................................................21
Section 2.07. Repayment of Loans.................................................................................21
Section 2.08. Interest on Loans..................................................................................22
Section 2.09. Default Interest...................................................................................23
Section 2.10. Alternate Rate of Interest.........................................................................23
Section 2.11. Changes in Commitments.............................................................................24
Section 2.12. Prepayment.........................................................................................25
Section 2.13. Reserve Requirements; Change in Circumstances......................................................26
Section 2.14. Change in Legality.................................................................................28
Section 2.15. Indemnity..........................................................................................29
Section 2.16. Pro Rata Treatment.................................................................................29
Section 2.17. Sharing of Setoffs.................................................................................30
Section 2.18. Payments...........................................................................................30
Section 2.19. Taxes..............................................................................................31
Article III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Organization; Powers; Governmental Approvals.......................................................33
Section 3.02. Financial Statements...............................................................................34
Section 3.03. No Material Adverse Change.........................................................................34
Section 3.04. Title to Properties; Possession Under Leases.......................................................34
Section 3.05. Ownership of Subsidiaries..........................................................................34
Section 3.06. Litigation; Compliance with Laws...................................................................35
Section 3.07. Agreements.........................................................................................35
Section 3.08. Federal Reserve Regulations........................................................................36
Section 3.09. Investment Company Act; Public Utility Holding Company Act.........................................36
Section 3.10. Use of Proceeds....................................................................................36
Section 3.11. Tax Returns........................................................................................36
Section 3.12. No Material Misstatements..........................................................................36
Section 3.13. Employee Benefit Plans.............................................................................36
Section 3.14. Insurance..........................................................................................37
Section 3.15. Acquisitions.......................................................................................37
Article IV
CONDITIONS OF LENDING
Section 4.01. Each Borrowing.....................................................................................38
Section 4.02. Effective Date.....................................................................................39
Article V
AFFIRMATIVE COVENANTS
Section 5.01. Existence; Businesses and Properties...............................................................40
Section 5.02. Financial Statements, Reports, etc.................................................................41
Section 5.03. Litigation and Other Notices.......................................................................42
Section 5.04. Maintaining Records................................................................................42
Section 5.05. Use of Proceeds....................................................................................43
Article VI
NEGATIVE COVENANTS
Section 6.01. Liens..............................................................................................43
Section 6.02. Ownership of the Principal Subsidiaries............................................................43
Section 6.03. Asset Sales........................................................................................44
Section 6.04. Mergers............................................................................................44
Section 6.05. Restrictions on Dividends..........................................................................44
Section 6.06. Transactions with Affiliates.......................................................................44
Section 6.07. Minimum Consolidated Net Worth.....................................................................45
Article VII
EVENTS OF DEFAULT
Article VIII
THE ADMINISTRATIVE AGENT
Article IX
MISCELLANEOUS
Section 9.01. Notices............................................................................................49
Section 9.02. Survival of Agreement..............................................................................50
Section 9.03. Binding Effect.....................................................................................50
Section 9.04. Successors and Assigns.............................................................................50
Section 9.05. Expenses; Indemnity................................................................................53
Section 9.06. Right of Setoff....................................................................................54
Section 9.07. Applicable Law.....................................................................................54
Section 9.08. Waivers; Amendment.................................................................................54
Section 9.09. Interest Rate Limitation...........................................................................55
Section 9.10. Entire Agreement...................................................................................55
Section 9.11. Waiver of Jury Trial...............................................................................55
Section 9.12. Severability.......................................................................................56
Section 9.13. Counterparts.......................................................................................56
Section 9.14. Headings...........................................................................................56
Section 9.15. Jurisdiction; Consent to Service of Process........................................................56
Exhibit A-1 Form of Competitive Bid Request
Exhibit A-2 Form of Notice of Competitive Bid Request
Exhibit A-3 Form of Competitive Bid
Exhibit A-4 Form of Competitive Bid Accept/Reject Letter
Exhibit A-5 Form of Standby Borrowing Request
Exhibit A-6 Form of Conversion Request
Exhibit B Form of Administrative Questionnaire
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Opinion of Counsel to Borrower
Exhibit E-1 Form of Standby Note
Exhibit E-2 Form of Competitive Note
Schedule 2.01 Lenders' Commitments and Addresses
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT, dated as of
October 27, 2000, among CITIZENS COMMUNICATIONS COMPANY, a Delaware
corporation (the "Borrower"), the Lenders listed in Schedule 2.01 (together
with any assignees pursuant to Section 9.04(b), the "Lenders") and THE
CHASE MANHATTAN BANK, a New York banking corporation, as administrative
agent for the Lenders (in such capacity, the "Administrative Agent").
The Borrower has requested the Lenders to extend credit to the Borrower in
order to enable it to borrow on a standby revolving credit basis on and after
the date hereof and at any time and from time to time prior to the Revolving
Period Maturity Date (as hereinafter defined) a principal amount not in excess
of $5,700,000,000 (as such amount may be modified pursuant to Section 2.11
hereof) at any time outstanding, all or a portion of which may be converted to
one-year term loans on the Revolving Period Maturity Date. The Borrower has also
requested the Lenders to provide a procedure pursuant to which the Borrower may
invite the Lenders to bid on an uncommitted basis on short-term borrowings by
the Borrower. The proceeds of such borrowings are to be used to backstop
commercial paper issued to finance the Acquisitions (as hereinafter defined), to
pay reasonable and customary fees, expenses and transaction costs incurred by
the Borrower in connection with the Acquisitions and for other general corporate
purposes, including other acquisitions. The Lenders are willing to extend such
credit to the Borrower on the terms and subject to the conditions herein set
forth.
Accordingly, the Borrower, the Lenders and the Administrative Agent agree
as follows:
Article I
DEFINITIONS
Section 1.01. Defined Terms.
As used in this Agreement, the following terms shall have the meanings
specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Standby Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Acquisitions" shall mean (x) the acquisition by the Borrower of telephone
access lines from Verizon Communications and certain of its affiliates and Qwest
Communications International, Inc. pursuant to (i) nine separate Agreements for
Purchase and Sale of Telephone Exchanges, each dated as of June 16, 1999,
between the Borrower and Qwest Communications International, Inc., (ii) an Asset
Purchase Agreement, dated as of May 27, 1999, between GTE California
Incorporated and the Borrower, (iii) an Asset Purchase Agreement, dated as of
May 27, 1999, between GTE West Coast Incorporated and the Borrower and (iv) an
Asset Purchase Agreement, dated as of May 27, 1999, between Contel of Minnesota,
Inc. and the Borrower, and (y) the acquisition by the Borrower from Global
Crossing Ltd. of the Frontier local exchange carrier business, consisting of
approximately 1.1 million access lines, pursuant to a Stock Purchase Agreement,
dated as of July 11, 2000, among Global Crossing Ltd., Global Crossing North
America Inc. and the Borrower.
4
"Administrative Fees" shall have the meaning assigned to such term in
Section 2.06(b).
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in the form of Exhibit B hereto.
"Affiliate" shall mean, when used with respect to a specified Person,
another Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"Alternate Base Rate" 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 (i) the
Prime Rate in effect on such day and (ii) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. If the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Federal Funds Effective Rate for any reason,
including the inability of the Administrative Agent to obtain sufficient
quotations, the Alternate Base Rate shall be determined without regard to
clause (ii) of the first sentence of this definition until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective on the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"Applicable Rate" shall mean 0.000% with respect to any ABR Loan, and shall
mean, with respect to any Eurodollar Standby Loan or Facility Fee, as the case
may be, at all times during which any "Applicable Rating Level" set forth below
is in effect, the rate per annum set forth below under the appropriate caption
next to such Applicable Rating Level:
========================= ======================== ====================== ====================== ======================
Applicable S&P Applicable Rate Applicable Rate Utilization
Rating Rating/Xxxxx'x for Eurodollar for Margin
Level Rating Standby Loans Facility Fee
========================= ======================== ====================== ====================== ======================
I AA-or higher/Aa3 or 0.200% 0.050% 0.100%
higher
------------------------- ------------------------ ---------------------- ---------------------- ----------------------
II A+/A1 0.240% 0.060% 0.100%
------------------------- ------------------------ ---------------------- ---------------------- ----------------------
III A/A2 0.240% 0.060% 0.100%
------------------------- ------------------------ ---------------------- ---------------------- ----------------------
IV A-/A3 0.330% 0.070% 0.100%
------------------------- ------------------------ ---------------------- ---------------------- ----------------------
V BBB+/Baa1 0.400% 0.100% 0.100%
------------------------- ------------------------ ---------------------- ---------------------- ----------------------
VI BBB/Baa2 0.625% 0.125% 0.100%
------------------------- ------------------------ ---------------------- ---------------------- ----------------------
VII BBB-/Baa3 0.725% 0.150% 0.125%
------------------------- ------------------------ ---------------------- ---------------------- ----------------------
VIII lower than BBB-/lower 0.800% 0.200% 0.125%
than Baa3
------------------------- ------------------------ ---------------------- ---------------------- ----------------------
5
provided, that the Applicable Rate for Eurodollar Standby Loans and ABR Loans
shall be increased by the rate per annum set forth above under the caption
"Utilization Margin" that corresponds to the Applicable Rating Level used to
determine such Applicable Rates at all times following the effectiveness of the
Term Election or at any time during a Utilization Period.
For purposes of the foregoing, the Applicable Rating Level shall be
determined in accordance with the then applicable S&P Rating and the then
applicable Xxxxx'x Rating. In the event that the S&P Rating and the Xxxxx'x
Rating do not correspond to the same Applicable Rating Level, then the higher of
the two ratings shall determine the Applicable Rating Level; provided, however,
that if there is a difference of two or more levels between the Applicable
Rating Level corresponding to the S&P Rating and the Applicable Rating Level
corresponding to the Xxxxx'x Rating, then the Applicable Rating Level that is
one level above the Applicable Rating Level corresponding to the lower of the
S&P Rating and the Xxxxx'x Rating shall apply. In the event that no S&P Rating
or no Xxxxx'x Rating shall be in effect (other than by reason of the
circumstances referred to in the last sentence of this definition), then the
Applicable Rating Level shall be Applicable Rating Level VIII. The Applicable
Rating Level shall be redetermined on the date of announcement of a change in
the S&P Rating or the Xxxxx'x Rating. A change in the Applicable Rate resulting
from a change in the Applicable Rating Level shall become effective on such
date. If the rating system of S&P or Xxxxx'x shall change, or if either such
Person shall cease to be in the business of rating corporate debt obligations,
the Borrower and the Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating system or the unavailability of
ratings from such Person and, pending the effectiveness of any such amendment,
the Applicable Rate shall be determined by reference to the rating most recently
in effect prior to such change or cessation.
"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Lender and an assignee, and accepted by the Administrative Agent, in
substantially the form of Exhibit C.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders (or, in the case of a Competitive Borrowing, by the Lender or Lenders
whose Competitive Bids have been accepted pursuant to Section 2.03) or Converted
on a single date and as to which a single Interest Period is in effect. All
Loans of the same Type, having the same Interest Period and made or Converted on
the same day shall be deemed a single Borrowing hereunder until repaid or next
Converted.
"Business Day" shall mean any day (other than a day which is a Saturday,
Sunday or legal holiday in the State of New York) on which banks are open for
business in New York City; provided, however, that, when used in connection with
a Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Lease Obligations" of any Person shall mean the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
6
A "Change in Control" shall be deemed to have occurred if (a) any Person or
group (within the meaning of Rule 13d-5 of the Securities and Exchange
Commission as in effect on the date hereof) shall own directly or indirectly,
beneficially or of record, shares representing more than 49% of the aggregate
ordinary voting power represented by the issued and outstanding capital stock of
the Borrower; or (b) a majority of the seats (other than vacant seats) on the
board of directors of the Borrower shall at any time have been occupied by
Persons who were neither (i) nominated by the management of the Borrower, nor
(ii) appointed by directors so nominated; or (c) any Person or group shall
otherwise directly or indirectly Control the Borrower.
"Code" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"Commitment" shall mean, with respect to each Lender, the commitment of
such Lender hereunder as set forth in Schedule 2.01 hereto, as such Lender's
Commitment may be modified from time to time pursuant to Section 2.11 or
Section 2.13(f). Unless earlier terminated pursuant to the terms of this
Agreement, the Commitments shall automatically and permanently terminate on the
Revolving Period Maturity Date.
"Competitive Bid" shall mean an offer by a Lender to make a Competitive
Loan pursuant to Section 2.03.
"Competitive Bid Accept/Reject Letter" shall mean a notification made by
the Borrower pursuant to Section 2.03(d) in the form of Exhibit A-4.
"Competitive Bid Rate" shall mean, as to any Competitive Bid made by a
Lender pursuant to Section 2.03(b), (i) in the case of a Eurodollar Loan, the
Margin, and (ii) in the case of a Fixed Rate Loan, the fixed rate of interest
offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant to
Section 2.03 in the form of Exhibit A-1.
"Competitive Borrowing" shall mean a Borrowing consisting of a Competitive
Loan or concurrent Competitive Loans from the Lender or Lenders whose
Competitive Bids for such Borrowing have been accepted by the Borrower under the
bidding procedure described in Section 2.03.
"Competitive Loan" shall mean a Loan from a Lender to the Borrower pursuant
to the bidding procedure described in Section 2.03. Each Competitive Loan shall
be a Eurodollar Competitive Loan or a Fixed Rate Loan.
"Consolidated Net Worth" shall mean, as at any date of determination, the
consolidated stockholders' equity of the Borrower and its consolidated
Subsidiaries, including redeemable preferred securities where the redemption
date occurs after the Termination Date, mandatorily redeemable convertible
preferred securities and minority equity interests in other persons, as
determined on a consolidated basis in conformity with GAAP consistently applied.
7
"Consolidated Tangible Assets" of any Person shall mean total assets of
such Person and its consolidated Subsidiaries, determined on a consolidated
basis, less goodwill, patents, trademarks and other assets classified as
intangible assets in accordance with GAAP.
"Control" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ownership of voting securities, by contract or otherwise,
and "Controlling" and "Controlled" shall have meanings correlative thereto.
"Conversion", "Convert" or "Converted" shall mean the conversion of any
Standby Loan of one Type into a Standby Loan of another Type, or the selection
of a new, or the renewal of the same, Interest Period for any such Standby Loan,
as the case may be, pursuant to Section 2.05.
"Conversion Request" shall mean a request made pursuant to Section 2.05 in
the form of Exhibit A-6.
"Default" shall mean any event or condition which upon notice, lapse of
time, or both would constitute an Event of Default.
"Dollars" or "$" shall mean lawful money of the United States of America.
"Effective Date" shall mean the date on which the conditions specified in
Section 4.02 are satisfied (or waived in accordance with Section 9.08).
"Environmental Laws" shall mean all national, federal, state, provincial,
municipal or local laws, statutes, ordinances, orders, judgments, decrees,
injunctions, writs, policies and guidelines (having the force of law),
directives, approvals, notices, rules and regulations and other applicable laws
relating to environmental or occupational health and safety matters, including
those relating to the Release or threatened Release of Specified Substances and
to the generation, use, storage or transportation of Specified Substances, each
as in effect as of the date of determination.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time, and the regulations promulgated and
the rulings issued thereunder.
"ERISA Affiliate" shall mean each trade or business (whether or not
incorporated) which together with the Borrower or a Subsidiary of the Borrower
would be deemed to be a "single employer" within the meaning of
Section 4001(b)(1) of ERISA.
8
"ERISA Termination Event" shall mean (i) a "Reportable Event" described in
Section 4043 of ERISA (other than a "Reportable Event" not subject to the
provision for 30-day notice to the PBGC under such regulations), or (ii) 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 (iii) 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 (iv) the institution of proceeding to terminate a Plan
by the PBGC or (v) any other event or condition which might constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Competitive Borrowing" shall mean a Borrowing comprised of
Eurodollar Competitive Loans.
"Eurodollar Competitive Loan" shall mean any Competitive Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"Eurodollar Loan" shall mean any Eurodollar Competitive Loan or Eurodollar
Standby Loan.
"Eurodollar Standby Borrowing" shall mean a Borrowing comprised of
Eurodollar Standby Loans.
"Eurodollar Standby Loan" shall mean any Standby Loan bearing interest at a
rate determined by reference to the LIBO Rate in accordance with the provisions
of Article II.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Existing Facility" shall mean the Credit Agreement, dated as of
October 29, 1999, among the Borrower, the lenders parties thereto and The Chase
Manhattan Bank, as agent for said lenders.
"Facility Fee" shall have the meaning assigned to such term in
Section 2.06(a).
"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
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Fees" shall mean the Facility Fee and the Administrative Fees.
"Financial Officer" of any corporation shall mean the President, Chief
Financial Officer, Chief Executive Officer, Vice President - Finance, Executive
Vice President or Treasurer of such corporation.
"First Mortgage Bond Indentures" shall mean (i) the First Mortgage and
Collateral Trust Indenture, dated as of March 1, 1947, from the Borrower to The
Marine Midland Trust Company of New York, as Trustee, and (ii) the Mortgage and
Deed of Trust Indenture, dated as of June 1, 1962, from the Borrower to
Manufacturers Hanover Trust Company, as Trustee, as the same have been and may
from time to time be amended or supplemented and in effect.
9
"Fixed Rate Borrowing" shall mean a Borrowing comprised of Fixed Rate
Loans.
"Fixed Rate Loan" shall mean any Competitive Loan bearing interest at a
fixed percentage rate per annum (expressed in the form of a decimal to no more
than four decimal places) specified by the Lender making such Loan in its
Competitive Bid.
"GAAP" shall mean generally accepted accounting principles, applied on a
consistent basis.
"Governmental Approval" shall mean any authorization, consent, order,
approval, license, franchise, lease, ruling, tariff, rate, permit, certificate,
exemption of, or filing or registration with, any Governmental Authority.
"Governmental Authority" shall mean any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Hostile Acquisition" shall mean any Target Acquisition (as defined below)
involving a tender offer or proxy contest that has not been recommended or
approved by the board of directors (or similar governing body) of the Person
that is the subject of such Target Acquisition prior to the first public
announcement or disclosure relating to such Target Acquisition. As used in this
definition, the term "Target Acquisition" shall mean any transaction, or any
series of related transactions, by which the Borrower and/or any of its
Subsidiaries directly or indirectly (i) acquires any ongoing business or all or
substantially all of the assets of any Person or division thereof, whether
through purchase of assets, merger or otherwise, (ii) acquires (in one
transaction or as the most recent transaction in a series of transactions)
control of at least a majority in ordinary voting power of the securities of a
Person which have ordinary voting power for the election of directors or
(iii) otherwise acquires control of a more that 50% ownership interest in any
such Person.
"Indebtedness" of any Person shall mean, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property or assets purchased by such Person, (e) all obligations of such Person
issued or assumed as the deferred purchase price of property or services,
(f) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on property owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed, (g) all Capital Lease Obligations
of such Person, (h) all obligations of such Person in respect of interest rate
protection agreements, foreign currency exchange agreements or other interest or
exchange rate hedging arrangements (except to the extent such obligations are
used as a bona fide hedge of other Indebtedness of such Person), (i) all
obligations of such Person as an account party in respect of letters of credit
and bankers' acceptances (except to the extent any such obligations are incurred
in support of other obligations constituting Indebtedness of such Person) and
(j) any obligation, contingent or otherwise, of such Person guaranteeing or
having the economic effect of guaranteeing any Indebtedness of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of such Person, directly or indirectly (i) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or to purchase (or to advance or supply funds for the purchase of)
any security for the payment of such Indebtedness, (ii) to purchase property,
securities or services for the purpose of assuring the owner of such
Indebtedness of the payment of such Indebtedness or (iii) to maintain working
capital, equity capital or other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such
Indebtedness; provided, however, that the term Indebtedness shall not include
endorsements for collection or deposit, in either case in the ordinary course of
business.
10
"Interest Payment Date" shall mean, with respect to any Loan, the last day
of the Interest Period applicable thereto and, in the case of a Eurodollar Loan
with an Interest Period of more than three months' duration or a Fixed Rate
Loan, each day that would have been an Interest Payment Date for such Loan had
successive Interest Periods of three months' duration or 90 days duration, as
the case may be, been applicable to such Loan and, in addition, the date of any
Conversion of such Loan to a Loan of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing or on the last day of the immediately
preceding Interest Period applicable to such Borrowing, as the case may be, and
ending on the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6
months thereafter (or such longer period as may be agreed to by all of the
Lenders), as the Borrower may elect, (b) as to any ABR Borrowing, the period
commencing on the date of such Borrowing and ending on the date 90 days
thereafter or, if earlier, on the Termination Date or the date of prepayment of
such Borrowing and (c) as to any Fixed Rate Borrowing, the period commencing on
the date of such Borrowing and ending on the date specified in the Competitive
Bids in which the offer to make the Fixed Rate Loans comprising such Borrowing
were extended, which shall not be earlier than the day after the date of such
Borrowing or later than 364 days (or, subject to the Borrower obtaining all
necessary Governmental Approvals, such longer period as may be agreed to by all
of the Lenders) after the date of such Borrowing; provided, however, that if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of Eurodollar Loans only, such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period shall end on the next
preceding Business Day. Interest shall accrue from and including the first day
of an Interest Period to but excluding the last day of such Interest Period.
"LIBO 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 1/16 of 1%) equal to the rate at which dollar deposits approximately
equal in principal amount to (i) in the case of a Standby Borrowing, The Chase
Manhattan Bank's (if then acting as Administrative Agent or, in case another
Person is then acting as Administrative Agent, such other Person's) portion of
such Eurodollar Borrowing and (ii) in the case of a Competitive Borrowing, a
principal amount that would have been The Chase Manhattan Bank's (if then acting
as Administrative Agent or, in case another Person is then acting as
Administrative Agent, such other Person's) portion of such Competitive Borrowing
had such Competitive Borrowing been a Standby Borrowing, and, in the case of
each of clause (i) and clause (ii) above, for a maturity comparable to such
Interest Period, are offered to the principal London office of The Chase
Manhattan Bank (or such other Person then acting as Administrative Agent) in
immediately available funds in the London interbank market at approximately
11:00 A.M., London time, two Business Days prior to the commencement of such
Interest Period.
11
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge, or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease, or title retention agreement relating to such asset
and (c) in the case of securities, any purchase option, call, or similar right
of a third party with respect to such securities.
"Loan" shall mean a Competitive Loan or a Standby Loan, whether made as a
Eurodollar Loan, an ABR Loan, or a Fixed Rate Loan, as permitted hereby.
"Margin" shall mean, as to any Eurodollar Competitive Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal to no more
than four decimal places) to be added to or subtracted from the LIBO Rate in
order to determine the interest rate applicable to such Loan, as specified in
the Competitive Bid relating to such Loan.
"Margin Regulations" shall mean Regulations T, U and X of the Board.
"Material Adverse Effect" shall mean a materially adverse effect on the
business, assets, operations, condition, financial or otherwise, or results of
operations of the Borrower and the Subsidiaries taken as a whole.
"Moody's" shall mean Xxxxx'x Investors Service, Inc., or any successor
thereto.
"Xxxxx'x Rating" shall mean, on any date of determination, (i) the debt
rating most recently announced by Moody's with respect to the long-term, senior,
unsecured, non-credit enhanced Indebtedness of the Borrower or (ii) if (A) the
Indebtedness of the Borrower under this Agreement shall be credit enhanced by
any Person other than the Borrower and (B) both Moody's and S&P shall have
assigned a debt rating to such Indebtedness, then such debt rating assigned by
Moody's.
"Net Cash Proceeds" shall mean, with respect to any Sale Transaction, the
aggregate amount of cash received by the Borrower or any Subsidiary thereof in
connection with such sale after deducting therefrom (i) reasonable and customary
transaction costs that are, at the time of receipt of such cash, actually paid
or reserved for payment (A) to a Person that is not an Affiliate of the Borrower
or (B) to the Borrower or an Affiliate of the Borrower to reimburse the Borrower
or such Affiliate of the Borrower for payments made by the Borrower or such
Affiliate of the Borrower to another Person that is not the Borrower or an
Affiliate of the Borrower in respect of such transaction costs described above
and (ii) the amount of taxes paid or reasonably expected to be payable in
connection with, or as a result of, such transaction.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
12
"Person" shall mean any natural person, corporation, business trust, joint
venture, association, company, limited liability company, partnership, or
government, or any agency or political subdivision thereof.
"Plan" shall mean any pension plan (including a multiemployer plan) subject
to the provisions of Title IV of ERISA or Section 412 of the Code which is
maintained for or to which contributions are made for employees of the Borrower
or any ERISA Affiliate.
"Prime Rate" shall mean the rate of interest per annum publicly announced
from time to time by the Administrative Agent as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective on the date such change is publicly announced as effective.
"Principal Subsidiaries" shall mean any Subsidiary of the Borrower, other
than Electric Lightwave, Inc., whose Consolidated Tangible Assets comprise in
excess of 20% of the Consolidated Tangible Assets of the Borrower and its
consolidated Subsidiaries as of the date hereof or at any time hereafter.
"Register" shall have the meaning given such term in Section 9.04(d).
"Regulation D" shall mean Regulation D of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation T" shall mean Regulation T of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Release" shall mean any spilling, emitting, discharging, depositing,
escaping, leaching, dumping or other releasing, including the movement of any
Specified Substance through the air, soil, surface water, groundwater or
property, and when used as a verb has a like meaning.
"Required Lenders" shall mean, at any time, Lenders having Commitments
representing at least 66-2/3% of the Total Commitment or, for purposes of
acceleration pursuant to clause (ii) of Article VII or if the Total Commitment
has terminated, Lenders holding Loans representing at least 66-2/3% of the
aggregate principal amount of the Loans outstanding.
"Revolving Period Maturity Date" shall mean October 26, 2001.
"Sale Transaction" shall mean (i) the sale by the Borrower or any of its
Subsidiaries of any Utilities Assets or the stock of, or the sale outside the
ordinary course of business of any of the assets of, Electric Lightwave Inc. or
(ii) the sale or issuance of debt having a maturity of at least one year or
equity of the Borrower or any of its Subsidiaries in the capital or bank markets
for the purpose of financing the Acquisitions.
13
"S&P" shall mean Standard & Poo's Ratings Services, a division ofThe
XxXxxx-Xxxx Companies, Inc., or any successor thereto.
"S&P Rating" shall mean, on any date of determination, (i) the debt rating
most recently announced by S&P with respect to the long-term, senior, unsecured,
non-credit enhanced Indebtedness of the Borrower or (ii) if (A) the Indebtedness
of the Borrower under this Agreement shall be credit enhanced by any Person
other than the Borrower and (B) both S&P and Moody's shall have assigned a debt
rating to such Indebtedness, then such debt rating assigned by S&P.
"Specified Substance" shall mean (i) any chemical, material or substance
defined as or included in the definition of "hazardous substances", "hazardous
wastes", "hazardous materials", "extremely hazardous waste", "restricted
hazardous waste" or "toxic substances" or words of similar import under any
applicable Environmental Laws; (ii) any (A) oil, natural gas, petroleum or
petroleum derived substance, any drilling fluids, produced waters and other
wastes associated with the exploration, development or production of crude oil,
natural gas or geothermal fluid, any flammable substances or explosives, any
radioactive materials, any hazardous wastes or substances, any toxic wastes or
substances or (B) other materials or pollutants that, in the case of both (A)
and (B), (1) pose a hazard to the property of the Borrower or any of its
Subsidiaries or any part thereof or to persons on or about such property or to
any other property that may be affected by the Release of such materials or
pollutants from such property or any part thereof or to persons on or about such
other property or (2) cause such property or such other property to be in
violation of any Environmental Law; (iii) asbestos, urea formaldehyde foam
insulation, toluene, polychlorinated biphenyls and any electrical equipment
which contains any oil or dielectric fluid containing levels of polychlorinated
biphenyls in excess of fifty parts per million; and (iv) any sound, vibration,
heat, radiation or other form of energy and any other chemical, material or
substance, exposure to which is prohibited, limited or regulated by any
Governmental Authority.
"Standby Borrowing" shall mean a Borrowing consisting of simultaneous
Standby Loans from each of the Lenders.
"Standby Borrowing Request" shall mean a request made pursuant to Section
2.04 in the form of Exhibit A-5.
"Standby Loans" shall mean the revolving loans made by the Lenders to the
Borrower pursuant to Section 2.04. Each Standby Loan shall be a Eurodollar
Standby Loan or an ABR Loan. All Standby Loans by a Lender of the same Type,
having the same Interest Period and made or Converted on the same day shall be
deemed to be a single Standby Loan by such Lender until repaid or next
Converted.
"Subsidiary" shall mean, with respect to any Person (herein referred to as
the "parent"), any corporation, partnership, association, or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled, or held by the parent, or (b) which is, at the
time any determination is made, otherwise Controlled by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent. Unless otherwise indicated, all references in this Agreement to
"Subsidiaries" shall be construed as references to Subsidiaries of the Borrower.
14
"Term Election" shall have the meaning assigned to such term in
Section 2.07(b).
"Term Maturity Date" shall have the meaning assigned to such term in
Section 2.07(b).
"Termination Date" shall mean the earlier to occur of (i) the Revolving
Period Maturity Date or, if the Borrower makes the election described in
Section 2.07(b), the Term Maturity Date and (ii) the date of termination or
reduction in whole of the Commitments pursuant to Section 2.11 or Article VII.
"Total Commitment" shall mean at any time the aggregate amount of the
Lenders' Commitments, as in effect at such time.
"Transferee" shall mean any transferee or assignee of all or any portion of
a Lender's interests, rights and obligations hereunder, including any
participation holder.
"Type", when used in respect of any Loan or Borrowing, shall refer to the
Rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, "Rate" shall include the LIBO
Rate, the Alternate Base Rate and the rate of interest applicable to any Fixed
Rate Loan.
"Utilities Assets" shall mean any assets of the Borrower or any Subsidiary
thereof (including, without limitation, stock in any such Subsidiary) that are
employed in the generation or production, transmission or distribution (as
applicable) of electricity, natural gas, synthetic gas or water, or that are
used to provide wastewater services.
"Utilization Period" shall mean any day or days during which the aggregate
amount of Loans outstanding hereunder is equal to or greater than 33% of the
Total Commitment for such day or days.
Section 1.02. Terms Generally.
The definitions in Section 1.01 shall apply equally to both the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include", "includes" and "including" shall be deemed to be followed
by the phrase "without limitation". All references herein to Articles, Sections,
Exhibits and Schedules shall be deemed references to Articles and Sections of,
and Exhibits and Schedules to, this Agreement, unless the context shall
otherwise require. Except as otherwise expressly provided herein, all terms of
an accounting or financial nature shall be construed in accordance with GAAP, as
in effect from time to time; provided, however, that, for purposes of
determining compliance with any covenant set forth in Article VI, such terms
shall be construed in accordance with GAAP as in effect on the date of this
Agreement applied on a basis consistent with the application used in preparing
the Borrower's audited financial statements referred to in Section 3.02.
15
Article II
THE CREDITS
Section 2.01. Commitments.
Subject to the terms and conditions and relying upon the representations
and warranties herein set forth, each Lender agrees, severally and not jointly,
to make Standby Loans to the Borrower, at any time and from time to time on and
after the Effective Date and until the earlier to occur of the Revolving Period
Maturity Date and the termination of the Commitment of such Lender, in an
aggregate principal amount at any time outstanding not to exceed such Lender's
Commitment minus the amount by which the Competitive Loans outstanding at such
time shall be deemed to have used such Commitment pursuant to Section 2.16,
subject however, to the conditions that (a) at no time shall (i) the sum of
(x) the outstanding aggregate principal amount of all Standby Loans made by all
Lenders plus (y) the outstanding aggregate principal amount of all Competitive
Loans made by all Lenders exceed (ii) the Total Commitment, and (b) at all times
the outstanding aggregate principal amount of all Standby Loans made by each
Lender shall equal the product of (i) the percentage which its Commitment
represents of the Total Commitment times (ii) the outstanding aggregate
principal amount of all Standby Loans made pursuant to Section 2.04. Each
Lender's Commitment is set forth opposite its respective name in Schedule 2.01.
Such Commitments may be modified or reduced from time to time pursuant to
Section 2.11 and Section 2.13(f).
Within the foregoing limits, the Borrower may borrow, pay, or prepay and
reborrow hereunder, on and after the Effective Date and prior to the Revolving
Period Maturity Date, subject to the terms, conditions and limitations set forth
herein.
Section 2.02. Loans.
(a) Each Standby Loan shall be made as part of a Borrowing consisting of
Loans made by the Lenders ratably in accordance with their Commitments;
provided, however, that the failure of any Lender to make any Standby Loan shall
not in itself relieve any other Lender of its obligation to lend hereunder (it
being understood, however, that no Lender shall be responsible for the failure
of any other Lender to make any Loan required to be made by such other Lender).
Each Competitive Loan shall be made in accordance with the procedures set forth
in Section 2.03. The Standby Loans or Competitive Loans comprising any Borrowing
shall be in an aggregate principal amount which is an integral multiple of
$1,000,000 and not less than $10,000,000 (or, in the case of Standby Loans, an
aggregate principal amount equal to the remaining balance of the available
Commitments).
(b) Each Competitive Borrowing shall be comprised entirely of Eurodollar
Competitive Loans or Fixed Rate Loans, and each Standby Borrowing shall be
comprised entirely of Eurodollar Standby Loans or ABR Loans, as the Borrower may
request pursuant to Section 2.03 or 2.04, as applicable. Each Lender may at its
option make any Eurodollar Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such
option shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement. Borrowings of more than one Type
may be outstanding at the same time; provided, however, that the Borrower shall
not be entitled to request any Borrowing which, if made, would result in an
aggregate of more than ten separate Standby Loans of any Lender being
outstanding hereunder at any one time. For purposes of the foregoing, Loans
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Loans.
16
(c) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds to the
Administrative Agent in New York, New York, not later than 1:00 P.M., New York
City time, and the Administrative Agent shall by 3:00 P.M., New York City time,
credit the amounts so received to the general deposit account of the Borrower
with the Administrative Agent or, if a Borrowing shall not occur on such date
because any condition precedent herein specified shall not have been met, return
the amounts so received to the respective Lenders. Competitive Loans shall be
made by the Lender or Lenders whose Competitive Bids therefor are accepted
pursuant to Section 2.03 in the amounts so accepted and Standby Loans shall be
made by the Lenders pro rata in accordance with Section 2.16. Unless the
Administrative Agent shall have received notice from a Lender prior to the date
of any Borrowing (or, in the case of an ABR Borrowing, prior to the time of such
ABR Borrowing) that such Lender will not make available to the Administrative
Agent such Lender's portion of such Borrowing, the Administrative Agent may
assume that such Lender has made such portion available to the Administrative
Agent on the date of such Borrowing in accordance with this paragraph (c) and
the Administrative Agent may, in reliance upon such assumption, make available
to the Borrower on such date a corresponding amount. If and to the extent that
such Lender shall not have made such portion available to the Administrative
Agent and the Administrative Agent has made available to the Borrower such
portion, such Lender and the Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount, together
with interest thereon for each day from the date such amount is made available
to the Borrower until the date such amount is repaid to the Administrative Agent
at (i) in the case of the Borrower, the interest rate applicable at the time to
the Loans comprising such Borrowing and (ii) in the case of such Lender, the
Federal Funds Effective Rate. If such Lender shall repay to the Administrative
Agent such corresponding amount, such amount shall constitute such Lender's Loan
as part of such Borrowing for purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, the Interest
Period requested by the Borrower with respect to any Borrowing shall not (unless
otherwise agreed to by all of the Lenders) end after the earlier to occur of
(i) the Termination Date and (ii) the latest date permitted by any Governmental
Approval then in effect for the Borrower to have outstanding Borrowings.
Section 2.03. Competitive Bid Procedure.
(a) Subject to the terms and conditions set forth herein, from time to time
during the period from and including the Effective Date to but excluding the
earlier to occur of the Revolving Period Maturity Date and the termination of
the Commitments of all Lenders, the Borrower may request Competitive Bids and
may, but shall not have any obligation to, accept Competitive Bids and borrow
Competitive Loans; provided, that at no time shall the sum of (x) the
outstanding aggregate principal amount of all Standby Loans made by all Lenders
plus (y) the outstanding aggregate principal amount of all Competitive Loans
made by all Lenders exceed the Total Commitment. In order to request Competitive
Bids, the Borrower shall hand deliver or telecopy to the Administrative Agent a
duly completed Competitive Bid Request in the form of Exhibit A-1 hereto, to be
received by the Administrative Agent (i) in the case of a Eurodollar Competitive
Borrowing, not later than 10:00 A.M., New York City time, four Business Days
before a proposed Competitive Borrowing and (ii) in the case of a Fixed Rate
Borrowing, not later than 10:00 A.M., New York City time, one Business Day
before a proposed Competitive Borrowing. No ABR Loan shall be requested in, or
made pursuant to, a Competitive Bid Request. A Competitive Bid Request that does
not conform substantially to the format of Exhibit A-1 may be rejected in the
Administrative Agent's sole discretion, and the Administrative Agent shall
promptly notify the Borrower of such rejection by telecopier. Such request shall
in each case refer to this Agreement and specify (x) whether the Borrowing then
being requested is to be a Eurodollar Borrowing or a Fixed Rate Borrowing,
(y) the date of such Borrowing (which shall be a Business Day) and the aggregate
principal amount thereof which shall be in a minimum principal amount of
$10,000,000 and in an integral multiple of $1,000,000, and (z) the Interest
Period(s) with respect thereto (which may not end after the Revolving Period
Maturity Date unless otherwise agreed to by all of the Lenders). Promptly after
its receipt of a Competitive Bid Request that is not rejected as aforesaid, the
Administrative Agent shall invite by telecopier (in the form set forth in
Exhibit A-2 hereto) the Lenders to bid, on the terms and conditions of this
Agreement, to make Competitive Loans pursuant to the Competitive Bid Request.
17
(b) Each Lender may, in its sole discretion, make one or more Competitive
Bids to the Borrower responsive to a Competitive Bid Request. Each Competitive
Bid by a Lender must be received by the Administrative Agent via telecopier, in
the form of Exhibit A-3 hereto, (i) in the case of a Eurodollar Competitive
Borrowing, not later than 9:30 A.M., New York City time, three Business Days
before a proposed Competitive Borrowing and (ii) in the case of a Fixed Rate
Borrowing, not later than 9:30 A.M., New York City time, on the day of a
proposed Competitive Borrowing. Multiple bids will be accepted by the
Administrative Agent. Competitive Bids that do not conform substantially to the
format of Exhibit A-3 may be rejected by the Administrative Agent after
conferring with, and upon the instruction of, the Borrower, and the
Administrative Agent shall notify the Lender making such nonconforming bid of
such rejection as soon as practicable. Each Competitive Bid shall refer to this
Agreement and specify (x) the range of principal amounts (each of which shall be
in a minimum principal amount of $5,000,000 and in an integral multiple of
$1,000,000 and, in the case of the larger such amount, may equal the entire
principal amount of the Competitive Borrowing requested by the Borrower) of the
Competitive Loan or Loans that the Lender is willing to make to the Borrower,
(y) the Competitive Bid Rate or Rates at which the Lender is prepared to make
the Competitive Loan or Loans and (z) the Interest Period and the last day
thereof. If any Lender shall elect not to make a Competitive Bid, such Lender
shall so notify the Administrative Agent via telecopier (A) in the case of
Eurodollar Competitive Loans, not later than 9:30 A.M., New York City time,
three Business Days before a proposed Competitive Borrowing, and (B) in the case
of Fixed Rate Loans, not later than 9:30 A.M., New York City time, on the day of
a proposed Competitive Borrowing; provided, however, that the failure by any
Lender to give such notice shall not cause such Lender to be obligated to make
any Competitive Loan as part of such Competitive Borrowing. A Competitive Bid
submitted by a Lender pursuant to this paragraph (b) shall be irrevocable. If
the Administrative Agent shall not have received from any Lender notification of
its election to make a Competitive Bid on or before the times set forth in the
second sentence of this paragraph, such Lender shall be deemed to have elected
not to make a Competitive Bid.
18
(c) The Administrative Agent shall promptly notify (but in any event no
later than 10:00 A.M., New York City time, on the day any Competitive Bid is
received by the Administrative Agent) the Borrower by telecopier of all the
Competitive Bids made, the Competitive Bid Rate and the principal amount (or
range thereof) of each Competitive Loan in respect of which a Competitive Bid
was made and the identity of the Lender that made each bid. The Administrative
Agent shall send a copy of all Competitive Bids to the Borrower for its records
as soon as practicable after completion of the bidding process set forth in this
Section 2.03.
(d) The Borrower may in its sole and absolute discretion, subject only to
the provisions of this paragraph (d), accept or reject all or any portion
(within the range of principal amounts specified therein) of any Competitive Bid
referred to in paragraph (c) above. The Borrower shall notify the Administrative
Agent by telephone, confirmed by telecopier in the form of a Competitive Bid
Accept/Reject Letter, whether and to what extent it has decided to accept or
reject any of or all the bids referred to in paragraph (c) above, (x) in the
case of a Eurodollar Competitive Borrowing, not later than 11:00 A.M., New York
City time, three Business Days before a proposed Competitive Borrowing and
(y) in the case of a Fixed Rate Borrowing, not later than 11:00 A.M., New York
City time, on the day of a proposed Competitive Borrowing; provided, however,
that (i) the failure by the Borrower to give such notice shall be deemed to be a
rejection of all the bids referred to in paragraph (c) above, (ii) the Borrower
shall not accept a bid made at a particular Competitive Bid Rate if the Borrower
has decided to reject a bid made at a lower Competitive Bid Rate, (iii) the
aggregate amount of the Competitive Bids accepted by the Borrower shall not
exceed the principal amount specified in the Competitive Bid Request, (iv) if
the Borrower shall accept a bid or bids made at the same Competitive Bid Rate
but the amount of such bid or bids shall cause the total amount of bids to be
accepted by the Borrower to exceed the amount specified in the Competitive Bid
Request, then the Borrower shall accept a portion of such bid or bids in an
amount no greater than the amount specified in the Competitive Bid Request less
the amount of all other Competitive Bids at a lower Competitive Bid Rate
accepted with respect to such Competitive Bid Request, which acceptance, in the
case of multiple bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the lowest amount of each such bid at such Competitive Bid Rate,
and (v) except pursuant to clause (iv) above, no bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal amount
of $5,000,000 and an integral multiple of $1,000,000; provided further, however,
that if a Competitive Loan must be in an amount less than $5,000,000 because of
the provisions of clause (iv) above, such Competitive Loan may be for a minimum
of $1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple bids at a particular
Competitive Bid Rate pursuant to clause (iv) the amounts shall be rounded to
integral multiples of $1,000,000 in a manner which shall be in the discretion of
the Borrower. A notice given by the Borrower pursuant to this paragraph (d)
shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender
whether or not its Competitive Bid has been accepted (and if so, in what amount
and at what Competitive Bid Rate) by telecopier sent by the Administrative
Agent, and each successful bidder will thereupon become bound, subject to the
other applicable conditions hereof, to make the Competitive Loan in respect of
which its bid has been accepted.
19
(f) If the Administrative Agent shall elect to submit a Competitive Bid in
its capacity as a Lender, it shall submit such bid directly to the Borrower not
later than 9:15 A.M., New York City time, on the day on which the other Lenders
are required to submit their bids to the Administrative Agent pursuant to
paragraph (b) above.
(g) All notices required by this Section 2.03 shall be given in accordance
with Section 9.01.
Section 2.04. Standby Borrowing Procedure.
In order to request a Standby Borrowing (other than a Conversion), the
Borrower shall hand deliver or telecopy to the Administrative Agent a notice in
the form of Exhibit A-5 (a) in the case of a Eurodollar Standby Borrowing, not
later than 11:00 A.M., New York City time, three Business Days before a proposed
Borrowing, and (b) in the case of an ABR Borrowing, not later than 11:00 A.M.,
New York City time, on the day of a proposed Borrowing. No Fixed Rate Loan shall
be requested or made pursuant to a Standby Borrowing Request. Such notice shall
be irrevocable (unless otherwise expressly provided herein) and shall in each
case specify (i) whether the Borrowing then being requested is to be a
Eurodollar Standby Borrowing or an ABR Borrowing; (ii) the date of such Standby
Borrowing (which shall be a Business Day) and the amount thereof; and (iii) if
such Borrowing is to be a Eurodollar Standby Borrowing, the Interest Period with
respect thereto. If no election as to the Type of Standby Borrowing is specified
in any such notice, then the requested Standby Borrowing shall be an ABR
Borrowing. If no Interest Period with respect to any Eurodollar Standby
Borrowing is specified in any such notice, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration. The Administrative
Agent shall promptly advise (but in any event no later than 12:00 noon on such
date) the Lenders of any notice given pursuant to this Section 2.04 and of each
Lender's portion of the requested Borrowing.
Section 2.05. Conversions.
The Borrower may from time to time Convert any Standby Loan (or portion
thereof) of any Type and with any Interest Period (if applicable) to one or more
Standby Loans of the same or any other Type and with any Interest Period (if
applicable) by delivering (by hand delivery or telecopier) a request for such
Conversion in the form of Exhibit A-6 to the Administrative Agent no later than
(i) 11:00 A.M., New York City time, on the third Business Day prior to the date
of any proposed Conversion into a Eurodollar Standby Loan and (ii) 11:00 A.M.,
New York City time, on the day of any proposed Conversion into an ABR Loan. The
Administrative Agent shall give each Lender prompt notice of each Conversion
Request. Each Conversion Request shall be irrevocable (unless otherwise
expressly provided herein) and binding on the Borrower and shall specify the
requested (A) date of such Conversion, (B) Type of, and Interest Period, if any,
applicable to, the Standby Loans (or portions thereof) proposed to be Converted,
(C) Type of Standby Loans to which such Standby Loans (or portions thereof) are
proposed to be Converted, (D) initial Interest Period, if any, to be applicable
to the Standby Loans resulting from such Conversion and (E) aggregate amount of
Standby Loans (or portions thereof) proposed to be Converted. No Eurodollar
Standby Loans may be Converted on a date other than the last day of the Interest
Period applicable thereto, unless the Borrower reimburses each Lender pursuant
to Section 2.15 for all losses or expenses incurred by such Lender in connection
with such Conversion. If the Borrower shall fail to give a timely Conversion
Request pursuant to this subsection in respect of any Standby Loans, such
Standby Loans shall, on the last day of the then existing Interest Period
therefor, automatically Convert into, or remain as, as the case may be, ABR
Loans, unless such Standby Loans are repaid at the end of such Interest Period.
If the Borrower shall fail, in any Conversion Request that has been timely
given, to select the duration of any Interest Period for Standby Loans to be
Converted into Eurodollar Standby Loans, such Standby Loans shall, on the last
day of the then existing Interest Period therefor, automatically Convert into
Eurodollar Standby Loans with an Interest Period of one months' duration. If, on
the date of any proposed Conversion, the Borrower shall have failed to fulfill
any condition set forth in Section 4.01, all Standby Loans then outstanding
shall, on such date, automatically Convert into, or remain as, as the case may
be, ABR Loans.
20
Section 2.06. Fees.
(a) The Borrower agrees to pay to each Lender, through the Administrative
Agent, on each March 31, June 30, September 30 and December 31, on the date on
which the Commitment of such Lender shall be terminated as provided herein and
on the Termination Date, a facility fee (a "Facility Fee") at a rate per annum
equal to the Applicable Rate from time to time in effect on (i) the amount of
the Commitment of such Lender, whether used or unused, during the preceding
quarter (or shorter period commencing on the date hereof or ending on the
Revolving Period Maturity Date or any other date on which the Commitment of such
Lender shall be terminated) and (ii) in the event that the Commitments have
terminated and/or the Borrower has made the Term Election, the aggregate amount
of the Standby Loans owed by the Borrower to such Lender during the preceding
quarter (or shorter period ending on the later of the Term Maturity Date and the
date on which such Standby Loans are paid in full). All Facility Fees shall be
computed on the basis of the actual number of days elapsed in a year of 365 or
366 days, as the case may be. The Facility Fee due to each Lender shall commence
to accrue on the date hereof and shall cease to accrue on the later of the
Termination Date and the date of payment in full of the Loans, accrued interest
thereon and all other amounts payable hereunder.
(b) The Borrower agrees to pay the Administrative Agent, for its own
account, the fees (the "Administrative Fees") at the times and in the amounts
agreed upon between them.
(c) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders. Once paid, none of the Fees shall be refundable under any
circumstances.
Section 2.07. Repayment of Loans.
(a) The outstanding principal balance of each Loan shall be payable, in the
case of each Competitive Loan, on the earlier to occur of the last day of the
Interest Period applicable to such Loan and the Termination Date, and, in the
case of each Standby Loan, on the Termination Date, unless otherwise agreed to
by all of the Lenders. Each Competitive Loan and each Standby Loan shall bear
interest from the date thereof on the outstanding principal balance thereof as
set forth in Section 2.08. Each Lender shall, and is hereby authorized by the
Borrower to record in such Lender's internal records an appropriate notation
evidencing the date and amount of each Competitive Loan or Standby Loan, as
applicable, of such Lender, each payment or prepayment of principal of any
Competitive Loan or Standby Loan, as applicable, and such other relevant
information as such Lender records in its internal records with respect to loans
of a type similar to such Loans; provided, however, that the failure of any
Lender to make such a notation or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Competitive Loans or Standby
Loans, as applicable, made by such Lender in accordance with the terms hereof.
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(b) The Borrower may elect, by providing written notice of such election to
the Administrative Agent (who shall promptly advise the Lenders of such notice)
at least five but no more than 30 days prior to the Revolving Period Maturity
Date, to have all or a portion of the Standby Loans outstanding on the Revolving
Period Maturity Date mature not later than the first anniversary of the
Revolving Period Maturity Date (such election being the "Term Election"). Such
notice shall be irrevocable and binding on the Borrower and shall specify
(i) the date (the "Term Maturity Date") on which the Borrower desires such
Standby Loans to mature and (ii) the Standby Loans and the amount thereof that
shall mature on the Term Maturity Date. The Term Election shall be effective on
the Revolving Period Maturity Date if and only if on such date no Default or
Event of Default shall have occurred and be continuing or would occur as a
result of the Term Election. Upon the effectiveness of the Term Election, the
Borrower shall no longer have the right to borrow any unfunded portion of the
Commitments or reborrow all or any part of the Loans that have been repaid or
prepaid. The Term Election may be made only once.
(c) Any Lender may request that any Loans made by it be evidenced by one or
more promissory notes. Promptly upon receipt of such request, the Borrower shall
prepare, execute and deliver to such Lender one or more promissory notes payable
to the order of such Lender (or, if requested by such Lender, to such Lender and
its assignees) substantially in the form of Exhibit E-1 or E-2, as appropriate.
Thereafter, the Loans evidenced by such promissory notes and interest thereon
shall at all times (including after assignment pursuant to Section 9.04) be
represented by one or more promissory notes in such form payable to the order of
the payee named therein.
Section 2.08. Interest on Loans.
(a) Subject to the provisions of Section 2.09, the Loans comprising each
Eurodollar Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to
(i) in the case of each Eurodollar Standby Loan, the LIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Rate, and (ii) in the
case of each Eurodollar Competitive Loan, the LIBO Rate for the Interest Period
in effect for such Borrowing plus the Margin offered by the Lender making such
Loan and accepted by the Borrower pursuant to Section 2.03. Interest on each
Eurodollar Borrowing shall be payable on each applicable Interest Payment Date.
The LIBO Rate for each Interest Period shall be determined by the Administrative
Agent, and such determination shall be conclusive absent manifest error. The
Administrative Agent shall promptly (but in any event no later than 10:30 A.M.,
New York City time, two Business Days prior to the commencement of such Interest
Period) (A) advise the Borrower and each Lender, as appropriate, of such
determination and (B) upon the request of the Borrower, provide the Borrower
with the calculations and relevant factors supporting such determination.
22
(b) Subject to the provisions of Section 2.09, the Loans comprising each
ABR Borrowing shall bear interest (computed on the basis of the actual number of
days elapsed over a year of 365 days when determined with reference to the Prime
Rate and over a year of 360 days in all other cases) at a rate per annum equal
to the Alternate Base Rate plus the Applicable Rate. Interest on each ABR
Borrowing shall be payable on each applicable Interest Payment Date. The
Alternate Base Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error. The Administrative
Agent shall promptly (but in any event no later than 11:30 A.M., New York City
time, on the day of each ABR Borrowing) (A) advise the Borrower and each Lender
of such determination and (B) upon the request of the Borrower, provide the
Borrower with the calculations and relevant factors supporting such
determination.
(c) Subject to the provisions of Section 2.09, each Fixed Rate Loan shall
bear interest at a rate per annum (computed on the basis of the actual number of
days elapsed over a year of 360 days) equal to the fixed rate of interest
offered by the Lender making such Loan and accepted by the Borrower pursuant to
Section 2.03. Interest on each Fixed Rate Loan shall be payable on the Interest
Payment Dates applicable to such Loan except as otherwise provided in this
Agreement.
Section 2.09. Default Interest.
If the Borrower shall default in the payment of the principal of or
interest on any Loan or any other amount becoming due hereunder, whether by
scheduled maturity, notice of prepayment, acceleration, or otherwise, the
Borrower shall on demand from time to time from the Administrative Agent pay
interest, to the extent permitted by law, on such defaulted amount up to (but
not including) the date of actual payment (after as well as before judgment) at
a rate per annum (computed on the basis of the actual number of days elapsed
over a year of 360 days) equal to the Alternate Base Rate plus 2%.
Section 2.10. Alternate Rate of Interest.
In the event, and on each occasion, that on the day two Business Days prior
to the commencement of any Interest Period for a Eurodollar Borrowing the
Administrative Agent shall have determined that dollar deposits in the principal
amounts of the Eurodollar Loans comprising such Borrowing are not generally
available in the London interbank market, or that the rates at which such dollar
deposits are being offered will not adequately and fairly reflect the cost to
any Lender of making or maintaining its Eurodollar Loan during such Interest
Period, or that reasonable means do not exist for ascertaining the LIBO Rate,
the Administrative Agent shall, as soon as practicable thereafter, give written
notice of such determination to the Borrower and the Lenders. In the event of
any such determination, until the Administrative Agent shall have advised the
Borrower and the Lenders that the circumstances giving rise to such notice no
longer exist, (i) any such request by the Borrower for a Eurodollar Competitive
Borrowing pursuant to Section 2.03 shall be of no force and effect and shall be
denied by the Administrative Agent, (ii) any such request by the Borrower for a
Eurodollar Standby Borrowing pursuant to Section 2.04 shall be deemed to be a
request for an ABR Borrowing (unless the Borrower shall have withdrawn its
request for such Eurodollar Standby Borrowing not later than 10:00 A.M., New
York City time, on the day of the proposed Borrowing) and (iii) any request by
the Borrower for a Conversion to Eurodollar Standby Loans pursuant to
Section 2.05 shall be deemed to be a request for a Conversion to ABR Loans
(unless the Borrower shall have withdrawn its request for such Conversion not
later than 10:00 A.M., New York City time, on the day of the proposed
Conversion). Each determination by the Administrative Agent hereunder shall be
conclusive absent manifest error.
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Section 2.11. Changes in Commitments.
(a) Upon at least three Business Days' prior irrevocable written notice to
the Administrative Agent, the Borrower may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Total
Commitment; provided, however, that (i) each partial reduction of the Total
Commitment shall be in an integral multiple of $1,000,000 and in a minimum
principal amount of $10,000,000 and (ii) no such termination or reduction shall
be made which would reduce the Total Commitment to an amount less than the
aggregate outstanding principal amount of the Competitive Loans.
(b) The Total Commitment shall be permanently reduced in an amount equal to
the amount of any prepayment required to be made pursuant to Section 2.12(c),
regardless of whether any Loans are outstanding or actually prepaid, such
reduction to be effective on the scheduled date for such prepayment.
(c) Each reduction in the Total Commitment hereunder shall be made ratably
among the Lenders in accordance with their respective Commitments. The Borrower
shall pay to the Administrative Agent for the account of the Lenders, on the
date of each termination or reduction, the Facility Fees on the amount of the
Commitments so terminated or reduced accrued through the date of such
termination or reduction. Subject to Section 2.06(a)(ii), no additional Facility
Fees on the amount of the Commitments so terminated or reduced will accrue.
(d) Unless earlier terminated pursuant to the terms of this Agreement, the
Commitment of each Lender shall automatically and permanently terminate on the
Revolving Period Maturity Date.
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(e) Provided that no Default or Event of Default shall have occurred and be
continuing, the Borrower shall have the right, without the consent of the
Lenders but subject to the terms of an amendment hereto entered into by the
Borrower and the Administrative Agent, to effectuate from time to time an
increase in the Total Commitment by (x) the accession to this Agreement of one
or more financial institutions as a Lender or as Lenders or (y) allowing one or
more Lenders to increase its Commitment hereunder (any such event described in
clause (x) or (y) being a "Commitment Increase"); provided that (i) the
aggregate amount of Commitment Increases effectuated pursuant to this paragraph
shall not exceed $800,000,000, (ii) no Lender's Commitment shall be increased
without the consent of such Lender, (iii) on the effective date of any such
Commitment Increase, there are no outstanding Eurodollar Standby Loans, and (iv)
no Commitment Increase may occur pursuant to this paragraph on any date after
January 31, 2001. Each party hereto hereby consents to the amendment of this
Agreement to reflect any such Commitment Increase. The Borrower shall give the
Administrative Agent three Business Days' notice of the Borrower's intention to
increase the Total Commitment pursuant to this paragraph. Such notice shall
specify each new financial institution to accede to this Agreement as a Lender
or the name of the Lender that has agreed to increase its Commitment hereunder,
as the case may be, and the amount of the proposed additional Commitment or the
amount of the proposed increase in an existing Commitment, as the case may be.
The Borrower shall also provide to the Administrative Agent satisfactory
evidence that all necessary Governmental Approvals and corporate authorizations
have been obtained by the Borrower in connection with proposed Commitment
Increase, together with such other information as is reasonably requested by the
Administrative Agent. Each financial institution agreeing to accede to this
Agreement as a Lender, and each Lender agreeing to increase its Commitment (each
such financial institution or Lender being an "Acceding Lender"), shall execute
and deliver to the Administrative Agent and the Borrower documentation in form
and substance satisfactory to the Administrative Agent and the Borrower pursuant
to which it becomes a party hereto or increases its Commitment, as the case may
be, shall deliver to the Administrative Agent an Administrative Questionnaire,
and shall purchase from the existing Lenders its proportionate share (based on
the amount of its Commitment and the amount of the Total Commitment after giving
effect to the Commitment Increase) of any Standby Loans outstanding on the date
such Commitment Increase becomes effective. Upon (x) the execution and delivery
of such documentation and an amendment to this Agreement that reflects any such
increase in the Total Commitment and such additional or changed Commitments and
(y) the provision to the Administrative Agent by the Acceding Lender of funds in
an amount necessary to purchase from the existing Lenders its proportionate
share (based on the amount of its Commitment and the amount of the Total
Commitment after giving effect to the Commitment Increase) of any Standby Loans
outstanding on the date such Commitment Increase becomes effective, (i) the
Commitment Increase shall become effective, (ii) the financial institution
agreeing to accede to this Agreement as a Lender shall constitute a Lender under
this Agreement with a Commitment as specified therein, or, in the case of an
existing Lender agreeing to increase its Commitment, such Lender's Commitment
shall increase as specified therein, and (iii) the Acceding Lender shall acquire
its proportionate share (determined as aforesaid) of any outstanding Standby
Loans and the rights relating thereto as provided by the Agreement.
(f) Any changes in the Commitments pursuant to this Section 2.11 shall be
appropriately recorded by the Administrative Agent in the Register in accordance
with Section 9.04(d). In addition, all notices with respect to any such change
shall be maintained by the Administrative Agent with the Register.
Section 2.12. Prepayment.
(a) The Borrower shall have the right at any time and from time to time to
prepay any Standby Borrowing or Eurodollar Competitive Borrowing, in whole or in
part, upon giving written notice (or telephone notice promptly confirmed by
written notice) to the Administrative Agent: (i) before 11:00 A.M., New York
City time, three Business Days prior to prepayment, in the case of Eurodollar
Loans, and (ii) before 11:00 A.M., New York City time, on the day of prepayment,
in the case of ABR Loans; provided, however, that each partial prepayment shall
be in an amount which is an integral multiple of $1,000,000 and not less than
$5,000,000. The Borrower shall not have the right to prepay any Fixed Rate
Competitive Borrowing.
25
(b) On the date of any termination or reduction of the Commitments pursuant
to Section 2.11 (other than subsection (b) thereof) or Section 2.13(f), the
Borrower shall pay or prepay so much of the Standby Borrowings as shall be
necessary in order that the aggregate principal amount of the Competitive Loans
and Standby Loans outstanding will not exceed the Total Commitment after giving
effect to such termination or reduction. In the event that the Borrower makes
the Term Election, the Borrower shall pay or prepay on the Revolving Period
Maturity Date so much of the Standby Borrowings as shall be necessary in order
that the aggregate principal amount of the Standby Loans outstanding will not
exceed the amount of the Standby Loans subject to the Term Election.
(c) The Borrower shall, from time to time, prepay Standby Borrowings in an
amount equal to the Net Cash Proceeds received by the Borrower or any Subsidiary
thereof from any Sale Transaction, such prepayment to be made on the tenth
Business Day following the day on which the Borrower or such Subsidiary receives
such Net Cash Proceeds; provided, that (1) the aggregate amount of such
prepayments made pursuant to this subsection (c) shall not exceed $3,700,000,000
plus the aggregate amount of Commitment Increases made pursuant to Section
2.11(e) minus the aggregate amount of reductions in the Total Commitment made
pursuant to Section 2.11(a); (2) no such prepayment shall be required to the
extent that any commercial paper issued by the Borrower prior to its receipt of
such Net Cash Proceeds and supported by the Commitments required to be reduced
pursuant to Section 2.11(b) shall be outstanding; provided, that prepayment of
such amount shall be required as and when such commercial paper matures; and
(3) any prepayment of a Eurodollar Loan made pursuant to this subsection (c)
shall not be required to be made until the end of the Interest Period applicable
to such Eurodollar Loan.
(d) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing (or portion
thereof) by the amount stated therein on the date stated therein. All
prepayments under this Section 2.12 shall be subject to Section 2.15 but
otherwise without premium or penalty. All prepayments under this Section 2.12
shall be accompanied by accrued interest on the principal amount being prepaid
to the date of payment.
Section 2.13. Reserve Requirements; Change in Circumstances.
(a) It is understood that the cost to each Lender of making or maintaining
any of the Eurodollar Loans may fluctuate as a result of the applicability of
reserve requirements imposed by the Board at the ratios provided for in
Regulation D on the date hereof. The Borrower agrees to pay to each of the
Lenders from time to time such amounts as shall be necessary to compensate such
Lender for the portion of the cost of making or maintaining Eurodollar Loans
(other than Eurodollar Competitive Loans) resulting from any such reserve
requirements provided for in Regulation D as in effect on the date hereof, it
being understood that the rates of interest applicable to Eurodollar Loans have
been determined on the assumption that no such reserve requirements exist or
will exist and that such rates do not reflect costs imposed on the Lenders in
connection with such reserve requirements.
26
(b) Notwithstanding any other provision herein, if after the date of this
Agreement any change in applicable law or regulation (including, without
limitation, Regulation D) or in the interpretation or administration thereof by
any Governmental Authority charged with the interpretation or administration
thereof (whether or not having the force of law) shall change the basis of
taxation of payments to any Lender of the principal of or interest on any
Eurodollar Loan or Fixed Rate Loan made by such Lender or any Fees or other
amounts payable hereunder (other than changes in respect of taxes imposed on the
overall net income of such Lender and franchise taxes imposed on it by the
jurisdiction in which such Lender has its principal office or by any political
subdivision or taxing authority therein), or shall impose, modify, or deem
applicable any reserve, special deposit, or similar requirement against assets
of, deposits with or for the account of or credit extended by such Lender, or
shall impose on such Lender or the London interbank market any other condition
affecting this Agreement or any Eurodollar Loan or Fixed Rate Loan made by such
Lender, and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan or
to reduce the amount of any sum received or receivable by such Lender hereunder
(whether of principal, interest, or otherwise) by an amount deemed by such
Lender to be material, then, to the extent not otherwise being reimbursed under
Section 2.19 hereof, the Borrower will pay to such Lender upon demand such
additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered. Notwithstanding the foregoing, no Lender
shall be entitled to request compensation under this paragraph with respect to
any Competitive Loan if it shall have had actual knowledge of the change giving
rise to such request at the time of submission of the Competitive Bid pursuant
to which such Competitive Loan shall have been made.
(c) If any Lender shall have determined that the adoption after the date
hereof of any law, rule, regulation, or guideline regarding capital adequacy, or
any change in any existing law, rule, regulation, or guideline regarding capital
adequacy or in the interpretation or administration of any of the foregoing by
any governmental authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or any Lender's holding company with any request
or directive regarding capital adequacy (whether or not having the force of law)
of any such authority, central bank, or comparable agency, has or would have the
effect of reducing the rate of return on such Lender's capital or on the capital
of such Lender's holding company, if any, as a consequence of this Agreement or
the Loans made by such Lender pursuant hereto to a level below that which such
Lender or such Lender's holding company could have achieved but for such
adoption, change, or compliance (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy) by an amount deemed by such Lender to be material, then from
time to time the Borrower shall pay to such Lender such additional amount or
amounts as will compensate such Lender or such Lender's holding company for any
such reduction suffered.
(d) A certificate of a Lender setting forth such amount or amounts as shall
be necessary to compensate such Lender as specified in paragraph (a), (b), or
(c) above, as the case may be, and all of the relevant factors and the
calculations supporting such amount or amounts, shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
each Lender the amount shown as due on any such certificate delivered by it
within 10 days after the receipt of the same.
27
(e) Notwithstanding the provisions of subsections (a), (b) or (c), above,
to the contrary, no Lender shall be entitled to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital to the extent that such compensation relates to any period of
time prior to the date upon which such Lender first notified the Borrower of the
occurrence of the event entitling such Lender to such compensation (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 required by any
governmental authority, central bank or comparable agency).
(f) If any Lender shall have delivered a notice or certificate pursuant to
paragraph (d) above, the Borrower shall have the right, at its own expense, upon
notice to such Lender and the Administrative Agent, to require such Lender to
(i) terminate its Commitment or (ii) transfer and assign without recourse (in
accordance with and subject to the restrictions contained in Section 9.04) all
or a portion of its interest, rights and obligations under this Agreement to
another financial institution which shall assume such obligations; provided that
(A) no such termination or assignment shall conflict with any law, rule, or
regulation or order of any Governmental Authority and (B) the Borrower or the
assignee, as the case may be, shall pay to the affected Lender in immediately
available funds on the date of such termination or assignment the principal of
and interest accrued to the date of payment on the Loans made by it hereunder
and all other amounts accrued for its account or owed to it hereunder (other
than any amounts owed to such Lender pursuant to Section 2.15(c) in connection
with such principal payment).
Section 2.14. Change in Legality.
(a) Notwithstanding any other provision herein, if any change in any law or
regulation or in the interpretation thereof by any governmental authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Administrative Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made by such
Lender hereunder, whereupon such Lender shall not submit a Competitive
Bid in response to a request for Eurodollar Competitive Loans and any
request by the Borrower for a Eurodollar Standby Borrowing shall, as
to such Lender only, be deemed a request for an ABR Loan (or for a
Conversion thereto pursuant to Section 2.05) unless such declaration
shall be subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it be
Converted to ABR Loans, in which event all such Eurodollar Loans shall
be automatically Converted to ABR Loans as of the effective date of
such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
Converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the Conversion of,
such Eurodollar Loans.
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(b) For purposes of this Section 2.14, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan, if lawful, on the
last day of the Interest Period currently applicable to such Eurodollar
Loan; in all other cases such notice shall be effective on the date of
receipt by the Borrower.
Section 2.15. Indemnity.
The Borrower shall indemnify each Lender against any loss or expense
which such Lender may sustain or incur as a consequence of (a) any failure
by the Borrower to fulfill on the date of any Borrowing hereunder the
applicable conditions set forth in Article IV, (b) any failure by the
Borrower to borrow or to Convert any Loan hereunder after irrevocable
notice of such Borrowing or Conversion has been given pursuant to
Section 2.03, 2.04 or 2.05, (c) any payment, prepayment or Conversion of a
Eurodollar Loan required by any other provision of this Agreement or
otherwise made or deemed made on a date other than the last day of the
Interest Period applicable thereto, (d) any default in payment or
prepayment of the principal amount of any Loan or any part thereof or
interest accrued thereon, as and when due and payable (at the due date
thereof, whether by scheduled maturity, acceleration, irrevocable notice of
prepayment or otherwise), or (e) the occurrence of any Event of Default,
including, in each such case, any loss or reasonable expense sustained or
incurred or to be sustained or incurred in liquidating or employing
deposits from third parties acquired to effect or maintain such Loan or any
part thereof as a Eurodollar Loan. Such loss or reasonable expense shall
include an amount equal to the excess, if any, as reasonably demonstrated
by such Lender, of (i) its cost of obtaining the funds for the Loan being
paid, prepaid, Converted, or not borrowed (assumed to be the LIBO Rate or,
in the case of a Fixed Rate Loan, the fixed rate of interest applicable
thereto) for the period from the date of such payment, prepayment, or
failure to borrow to the last day of the Interest Period for such Loan (or,
in the case of a failure to borrow, the Interest Period for such Loan which
would have commenced on the date of such failure) over (ii) the amount of
interest (as reasonably demonstrated by such Lender) that would be realized
by such Lender in reemploying the funds so paid, prepaid, or not borrowed
for such period or Interest Period, as the case may be. A certificate of
any Lender setting forth the factors and calculations supporting any amount
or amounts which such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower no later than 30 days following
the incurrence of any loss or expense for which such Lender is seeking
indemnification under this Section 2.15 and shall be conclusive absent
manifest error.
Section 2.16. Pro Rata Treatment.
Except as required or otherwise permitted under Sections 2.13(f) and
2.14, each Standby Borrowing, each payment or prepayment of principal of
any Standby Borrowing, each payment of interest on the Standby Loans, each
payment of the Facility Fees, each reduction of the Commitments and each
Conversion of any Borrowing with a Standby Borrowing of any Type, shall be
allocated pro rata among the Lenders in accordance with their respective
Commitments (or, if such Commitments shall have expired or been terminated,
in accordance with the respective principal amounts of their outstanding
Standby Loans). Each payment of principal of any Competitive Borrowing
shall be allocated pro rata among the Lenders participating in such
Borrowing in accordance with the respective principal amounts of their
outstanding Competitive Loans comprising such Borrowing. Each payment of
interest on any Competitive Borrowing shall be allocated pro rata among the
Lenders participating in such Borrowing in accordance with the respective
amounts of accrued and unpaid interest on their outstanding Competitive
Loans comprising such Borrowing. For purposes of determining the available
Commitments of the Lenders at any time, each outstanding Competitive
Borrowing shall be deemed to have utilized the Commitments of the Lenders
(including those Lenders which shall not have made Loans as part of such
Competitive Borrowing) pro rata in accordance with such respective
Commitments. Each Lender agrees that, in computing such Lender's portion of
any Borrowing to be made hereunder, the Administrative Agent may, in its
discretion, round each Lender's percentage of such Borrowing to the next
higher or lower whole dollar amount.
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Section 2.17. Sharing of Setoffs.
Each Lender agrees that if it shall, through the exercise of a right
of banker's lien, setoff, or counterclaim against the Borrower, or pursuant
to a secured claim under Section 506 of Title 11 of the United States Code
or other security or interest arising from, or in lieu of, such secured
claim, received by such Lender under any applicable bankruptcy, insolvency,
or other similar law or otherwise, or by any other means, obtain payment
(voluntary or involuntary) in respect of any Standby Loan or Standby Loans
as a result of which the unpaid principal portion of the Standby Loans of
such Lender shall be proportionately less than the unpaid principal portion
of the Standby Loans of any other Lender, it shall be deemed simultaneously
to have purchased from such other Lender at face value, and shall promptly
pay to such other Lender the purchase price for, a participation in the
Standby Loans of such other Lender, so that the aggregate unpaid principal
amount of the Standby Loans and participations in the Standby Loans held by
each Lender shall be in the same proportion to the aggregate unpaid
principal amount of all Standby Loans then outstanding as the principal
amount of its Standby Loans prior to such exercise of banker's lien,
setoff, or counterclaim or other event was to the principal amount of all
Standby Loans outstanding prior to such exercise of banker's lien, setoff,
or counterclaim or other event; provided, however, that if any such
purchase or purchases or adjustments shall be made pursuant to this Section
2.17 and the payment giving rise thereto shall thereafter be recovered,
such purchase or purchases or adjustments shall be rescinded to the extent
of such recovery and the purchase price or prices or adjustment restored
without interest. The Borrower expressly consents to the foregoing
arrangements and agrees that, to the maximum extent permitted by law, any
Lender holding a participation in a Standby Loan deemed to have been so
purchased may exercise any and all rights of banker's lien, setoff, or
counterclaim with respect to any and all moneys owing by the Borrower to
such Lender by reason thereof as fully as if such Lender had made a Standby
Loan directly to the Borrower in the amount of such participation.
Section 2.18. Payments.
(a) The Borrower shall make each payment (including principal of or
interest on any Borrowing or any Fees or other amounts) hereunder not later
than 12:00 noon, New York City time, on the date when due in dollars to the
Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, in immediately available funds. All payments by the Borrower shall
be made without deduction for any counterclaim, defense, recoupment or
setoff.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment
may be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of interest or Fees, if
applicable.
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Section 2.19. Taxes.
(a) Any and all payments by the Borrower hereunder shall be made, in
accordance with Section 2.18, free and clear of and without deduction for
any and all present or future taxes, levies, imposts, deductions, charges,
or withholdings, and all liabilities with respect thereto, excluding taxes
imposed on the Administrative Agent's or any Lender's (or any Transferee's)
net income and franchise taxes imposed on the Administrative Agent or any
Lender (or Transferee) by the United States or any jurisdiction under the
laws of which it is organized or any political subdivision thereof (all
such nonexcluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes"). If the Borrower
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder to the Lenders (or any Transferee) or the Administrative
Agent, (i) the sum payable shall be increased by the amount necessary so
that after making all required deductions (including deductions applicable
to additional sums payable under this Section 2.19) such Lender (or
Transferee) or the Administrative Agent (as the case may be) shall receive
an amount equal to the sum it would have received had no such deductions
been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxing
authority or other Governmental Authority in accordance with applicable
law. Each Lender party hereto on the date hereof represents and warrants
that no Taxes will be incurred on the date hereof in connection with the
execution and delivery of this Agreement.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges,
or similar levies which arise from any payment made hereunder or from the
execution, delivery, or registration of, or otherwise with respect to, this
Agreement (hereinafter referred to as "Other Taxes"). Each Lender party
hereto on the date hereof represents and warrants that no Other Taxes will
be incurred on the date hereof in connection with the execution and
delivery of this Agreement.
(c) The Borrower will indemnify each Lender (or Transferee) and the
Administrative Agent for the full amount of Taxes and Other Taxes
(including any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.19) paid by such Lender (or Transferee) or the
Administrative Agent, as the case may be, and any liability (including
penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted by the relevant taxing authority or other Governmental Authority.
Payment of such indemnification shall be made within 30 days after the date
any Lender (or Transferee) or the Administrative Agent, as the case may be,
makes written demand therefor. If a Lender (or Transferee) or the
Administrative Agent shall become aware that it is entitled to receive a
refund in respect of Taxes of Other Taxes, it shall promptly notify the
Borrower of the availability of such refund and shall, within 30 days after
receipt of a request by the Borrower, apply for such refund at the
Borrower's expense. If any Lender (or Transferee) or the Administrative
Agent receives a refund in respect of any Taxes or Other Taxes for which
such Lender (or Transferee) or the Administrative Agent has received
payment from the Borrower hereunder, it shall promptly notify the Borrower
of such refund and shall, within 15 days after receipt of such refund,
repay such refund to the Borrower, net of all out-of-pocket expenses of
such Lender (or Transferee) or the Administrative Agent and only with
interest received, if any, from the relevant taxing authority or
Governmental Authority; provided that the Borrower, upon the request of
such Lender (or Transferee) or the Administrative Agent, agrees to return
such refund (plus penalties, interest, or other charges) to such Lender (or
Transferee) or the Administrative Agent in the event such Lender (or
Transferee) or the Administrative Agent is required to repay such refund.
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(d) Within 30 days after the date of any payment of Taxes or Other
Taxes withheld by the Borrower in respect of any payment to any Lender (or
Transferee) or the Administrative Agent, the Borrower will furnish to the
Administrative Agent, at its address referred to in Section 9.01, the
original or a certified copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.19 shall
survive the payment in full of the principal of and interest on all Loans
made hereunder.
(f) Each Lender represents and warrants that either (i) it is
organized under the laws of a jurisdiction within the United States or
(ii) it has delivered to the Borrower and the Administrative Agent duly
completed copies of such form or forms prescribed by the Internal Revenue
Service indicating that such Lender is entitled to receive payments without
deduction or withholding of any United States federal income taxes, as
permitted by the Code. Each Transferee agrees that, on or prior to the date
upon which it shall become a party hereto or obtain a participation herein,
and upon the reasonable request from time to time of the Borrower or the
Administrative Agent, it will deliver to the Borrower and the
Administrative Agent either (A) a statement that it is organized under the
laws of a jurisdiction within the United States or (B) duly completed
copies of such form or forms as may from time to time be prescribed by the
United States Internal Revenue Service, indicating that such Transferee is
entitled to receive payments without deduction or withholding of any United
States federal income taxes, as permitted by the Code. Each Lender that has
delivered, and each Transferee that hereafter delivers, to the Borrower and
the Administrative Agent the form or forms referred to in the two preceding
sentences further undertakes to deliver to the Borrower and the
Administrative Agent, so far as it may legally do so, further copies of
such form or forms, or successor applicable form or forms, as the case may
be, as and when any previous form filed by it hereunder shall expire or
shall become incomplete or inaccurate in any respect. Each Lender and
Transferee represents and warrants that each such form supplied by it to
the Administrative Agent and the Borrower pursuant to this subsection (f),
and not superseded by another form supplied by it, is or will be, as the
case may be, complete and accurate.
(g) The Borrower shall not be required to pay any additional amounts
to any Lender (or Transferee) in respect of United States withholding tax
pursuant to paragraph (a) above if the obligation to pay such additional
amounts would not have arisen but for a failure by such Lender (or
Transferee) to comply with the provisions of paragraph (f) above, unless
such failure results from (i) a change in applicable law, regulation, or
official interpretation thereof, or (ii) an amendment, modification, or
revocation of any applicable tax treaty or a change in official position
regarding the application or interpretation thereof, in each case after the
date hereof (and, in the case of a Transferee, after the date of assignment
or transfer); provided, however, that the Borrower shall be required to pay
those amounts to any Lender (or Transferee) which it was required to pay
hereunder prior to the failure of such Lender (or Transferee) to comply
with the provisions of paragraph (f).
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(h) Any Lender (or Transferee) claiming any additional amounts payable
pursuant to this Section 2.19 shall use reasonable efforts (consistent with
legal and regulatory restrictions) to file any certificate or document
requested by the Borrower or to change the jurisdiction of its applicable
lending office if the making of such a filing or change would avoid the
need for or reduce the amount of any such additional amounts which may
thereafter accrue and would not, in the sole determination of such Lender,
be otherwise disadvantageous to such Lender (or Transferee).
Article III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each of the Lenders that:
Section 3.01. Organization; Powers; Governmental Approvals.
(a) The Borrower and each Principal Subsidiary (i) is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has all requisite power and
authority to own its property and assets and to carry on its business as
now conducted and (iii) is qualified to do business in every jurisdiction
where such qualification is required, except where the failure so to
qualify would not have a Material Adverse Effect. The Borrower's execution,
delivery and performance of this Agreement are within its corporate powers,
have been duly authorized by all necessary action and do not violate or
create a default under law, its constituent documents, or any contractual
provision binding upon it. This Agreement constitutes the legal, valid and
binding obligation of the Borrower enforceable against it in accordance
with its terms (except as such enforceability may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium and other laws affecting
the rights of creditors generally and general principles of equity).
(b) Except for (i) any Governmental Approvals required in connection
with any Borrowings (such approvals being "Borrowing Approvals") and (ii)
any Governmental Approvals the failure to obtain which could not reasonably
be expected to result in a Material Adverse Effect or affect the validity
or enforceability of this Agreement, all Governmental Approvals required in
connection with the execution and delivery by the Borrower of this
Agreement and the performance by the Borrower of its obligations hereunder
have been, and, prior to the time of any Borrowing, all Borrowing Approvals
will be, duly obtained, are (or, in the case of Borrowing Approvals, will
be) in full force and effect without having been amended or modified in any
manner that may impair the ability of the Borrower to perform its
obligations under this Agreement, and are not (or, in the case of Borrowing
Approvals, will not be) the subject of any pending appeal, stay or other
challenge. No Interest Period requested with respect to any Borrowing
extends beyond the latest date permitted for Borrowings by any Governmental
Approval then in effect.
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Section 3.02. Financial Statements.
The Borrower has furnished to the Lenders, for itself and its
Subsidiaries, its most recent filings with the Securities and Exchange
Commission on Forms 10-K and 10-Q. Such Forms 10-K and 10-Q do not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make any statement therein, in light of the circumstances
under which it was made, not misleading. Each of the financial statements
in such Forms 10-K and 10-Q has been, and each of the financial statements
to be furnished pursuant to Section 5.02 will be, prepared in accordance
with GAAP applied consistently with prior periods, except as therein noted,
and fairly presents or will fairly present in all material respects the
consolidated financial position of the Borrower and its Subsidiaries as of
the date thereof and the results of the operations of the Borrower and its
Subsidiaries for the period then ended.
Section 3.03. No Material Adverse Change.
Since the date of the Borrower's most recent financial statements
contained in its Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, furnished to the Lenders pursuant to Section 3.02, there
has been no material adverse change in, and there has occurred no event or
condition which is likely to result in a material adverse change in, the
condition, financial or otherwise, results of operations, business, assets
or operations of the Borrower and the Subsidiaries taken as a whole (it
being understood that the divestiture of Utilities Assets shall not
constitute such a material adverse change).
Section 3.04. Title to Properties; Possession Under Leases.
(a) To the best of the Borrower's knowledge, each of the Borrower and
the Principal Subsidiaries has good and marketable title to, or valid
leasehold interests in, or other rights to use or occupy, all its material
properties and assets, except for minor defects in title that do not
interfere with its ability to conduct its business as currently conducted
or to utilize such properties and assets for their intended purposes. All
such material properties and assets are free and clear of Liens, other than
Liens expressly permitted by Section 6.01.
(b) Each of the Borrower and the Principal Subsidiaries has complied
with all obligations under all material leases to which it is a party and
all such leases are in full force and effect, except where such failure to
comply or maintain such leases in full force and effect would not have a
Material Adverse Effect. Each of the Borrower and the Subsidiaries enjoys
peaceful and undisturbed possession under all such material leases except
where such failure would not have a Material Adverse Effect.
Section 3.05. Ownership of Subsidiaries.
The Borrower owns, free and clear of any Lien (other than Liens
expressly permitted by Section 6.01), all of the issued and outstanding
shares of common stock of each of the Principal Subsidiaries.
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Section 3.06. Litigation; Compliance with Laws.
(a) There is no action, suit, or proceeding, or any governmental
investigation or any arbitration, in each case pending or, to the knowledge
of the Borrower, threatened against the Borrower or any of the Subsidiaries
or any material property of any thereof before any court or arbitrator or
any governmental or administrative body, agency, or official which
(i) challenges the validity of this Agreement or (ii) except as disclosed
in the Borrower's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999 or the Borrower's Quarterly Reports on Form 10-Q for the
periods ending March 31, 2000 and June 30, 2000, may reasonably be expected
to have a Material Adverse Effect.
(b) Neither the Borrower nor any of the Subsidiaries is in violation
of any law, rule, or regulation, or in default with respect to any
judgment, writ, injunction or decree of any Governmental Authority, where
such violation or default could reasonably be anticipated to result in a
Material Adverse Effect.
(c) Except as set forth in or contemplated by the financial statements
or other reports referred to in Section 3.02 hereof and which have been
delivered to the Lenders on or prior to the date hereof, (i) the Borrower
and each of its Subsidiaries have complied with all Environmental Laws,
except to the extent that failure to so comply is not reasonably likely to
have a Material Adverse Effect, (ii) neither the Borrower nor any of its
Subsidiaries has failed to obtain, maintain or comply with any permit,
license or other approval under any Environmental Law, except where such
failure is not reasonably likely to have a Material Adverse Effect,
(iii)neither the Borrower nor any of its Subsidiaries has received notice
of any failure to comply with any Environmental Law or become subject to
any liability under any Environmental Law, except where such failure or
liability is not reasonably likely to have a Material Adverse Effect,
(iv) no facilities of the Borrower or any of its Subsidiaries are used to
manage any Specified Substance in violation of any law, except to the
extent that such violations, individually or in the aggregate, are not
reasonably likely to have a Material Adverse Effect, and (v) the Borrower
is aware of no events, conditions or circumstances involving any Release of
a Specified Substance that is reasonably likely to have a Material Adverse
Effect.
Section 3.07. Agreements.
(a) Neither the Borrower nor any of the Subsidiaries is a party to any
agreement or instrument or subject to any corporate restriction that has
resulted, or could reasonably be anticipated to result, in a Material
Adverse Effect.
(b) Neither the Borrower nor any of the Subsidiaries is in default in
any manner under any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties
or assets are or may be bound, where such default could reasonably be
anticipated to result in a Material Adverse Effect.
35
Section 3.08. Federal Reserve Regulations.
No part of the proceeds of the Loans will be used, whether directly or
indirectly, and whether immediately, incidentally, or ultimately, for any
purpose which entails a violation of, or which is inconsistent with, the
provisions of the Margin Regulations.
Section 3.09. Investment Company Act; Public Utility Holding Company
Act.
Neither the Borrower nor any of the Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment
Company Act of 1940 or (b) a "holding company" as defined in, or subject to
regulation under, the Public Utility Holding Company Act of 1935.
Section 3.10. Use of Proceeds.
The Borrower will use the proceeds of the Loan only for the purposes
specified in Section 5.05.
Section 3.11. Tax Returns.
Each of the Borrower and the Subsidiaries has filed or caused to be
filed all Federal, state and local tax returns required to have been filed
by it and has paid or caused to be paid all taxes shown to be due and
payable on such returns or on any assessments received by it, except taxes
that are being contested in good faith by appropriate proceedings and for
which the Borrower shall have set aside on its books adequate reserves.
Section 3.12. No Material Misstatements.
No statement, information, report, financial statement, exhibit or
schedule furnished by or on behalf of the Borrower to the Administrative
Agent or any Lender in connection with the syndication or negotiation of
this Agreement or included herein or delivered pursuant hereto contained,
contains, or will contain any material misstatement of fact or
intentionally omitted, omits, or will omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were, are, or will be made, not misleading.
Section 3.13. Employee Benefit Plans.
(a) Each Plan is in compliance with ERISA, except for such
noncompliance that has not resulted, and could not reasonably be
anticipated to result, in a Material Adverse Effect.
(b) No Plan has an accumulated or waived funding deficiency within the
meaning of Section 412 or Section 418B of the Code, except for any such
deficiency that has not resulted, and could not reasonably be anticipated
to result, in a Material Adverse Effect.
(c) No proceedings have been instituted to terminate any Plan, except
for such proceedings where the termination of a Plan has not resulted, and
could not reasonably be anticipated to result, in a Material Adverse
Effect.
36
(d) Neither the Borrower nor any Subsidiary or ERISA Affiliate has
incurred any liability to or on account of a Plan under ERISA (other than
obligations to make contributions in accordance with such Plan), and no
condition exists which presents a material risk to the Borrower or any
Subsidiary of incurring such a liability, except for such liabilities that
have not resulted, and could not reasonably be anticipated to result, in a
Material Adverse Effect.
Section 3.14. Insurance.
Each of the Borrower and the Principal Subsidiaries maintains
insurance with financially sound and reputable insurers, or self-insurance,
with respect to its properties and business against loss or damage of the
kind customarily insured against by reputable companies in the same or
similar business and of such types and in such amounts (with such
deductible amounts) as is customary for such companies under similar
circumstances.
Section 3.15. Acquisitions.
(a) The consummation by the Borrower of each Acquisition is within its
corporate powers, has been duly authorized by all necessary action and does
not violate or create a default under law, its constituent documents or any
contractual provision binding upon it or any other Person or their
respective properties.
(b) The consummation by the Borrower of each Acquisition or portion
thereof does not require any Governmental Approval, or any authorization,
consent, order, approval, license, franchise, lease, ruling, tariff, rate,
permit, certificate, exemption of, or filing or registration with, any
other Person, that is necessary for the consummation of such Acquisition or
such portion thereof and that has not been obtained or will not have been
obtained and be in full force and effect at the time such Acquisition or
such portion thereof is completed. The Borrower holds, or will hold upon
the completion of each Acquisition or portion thereof, all permits,
licenses, authorizations, certificates, exemptions and approvals of
Governmental Authorities or other Persons, including those required under
Environmental Laws (collectively, "Permits"), necessary for the use of the
property acquired as a result of the completion of such Acquisition or such
portion thereof, and all such Permits are, or will be upon the completion
of each Acquisition or portion thereof, in full force and effect.
(c) Upon the consummation of each Acquisition or portion thereof, the
Borrower shall have good, valid and marketable title to the properties so
acquired, subject to no Liens except for transfer restrictions imposed by
law and Permitted Liens. As used in this Section, the term "Permitted
Liens" shall mean Liens permitted to exist pursuant to the terms of the
definitive contracts governing the relevant Acquisition or portion thereof;
provided, that the existence of such Liens does not materially detract from
the value of the acquired properties.
(d) The financial projections and pro forma financial information that
assume the consummation of the Acquisitions and that are contained in the
Confidential Information Memorandum, dated September 2000, regarding the
credit facility to be provided to the Borrower hereunder, as distributed to
the Administrative Agent and the Lenders, have been prepared in good faith
and based on reasonable assumptions (it being understood that such
projections and financial information are subject to significant
uncertainties and contingencies, many of which are beyond the Borrower's
control, and that no assurance can be given that such projections and
financial information will be realized).
37
(e) At the time of the consummation of any Acquisition or portion
thereof, (i) there will be no material action, suit, proceeding,
governmental investigation or arbitration pending against the Borrower or
any seller of the property that is the subject of such Acquisition or such
portion thereof before any court or arbitrator or any governmental or
administrative body, agency, or official that seeks to question, delay or
prevent the consummation of such Acquisition or such portion thereof, and
(ii) neither the Borrower nor any seller of the property that is the
subject of such Acquisition or such portion thereof will be subject to any
material order of any Governmental Authority that seeks to question, delay
or prevent the consummation of such Acquisition or such portion thereof.
Article IV
CONDITIONS OF LENDING
Section 4.01. Each Borrowing.
The obligation of each Lender to make a Loan on the occasion of any
Borrowing, including any Conversion pursuant to Section 2.05, is subject to
the satisfaction of the following conditions:
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section2.03, 2.04 or 2.05, as applicable;
(b) The representations and warranties set forth in ArticleIII hereof
(except, in the case of a Conversion, the representations set forth in
Sections 3.03 and 3.06(a)) shall be true and correct in all material
respects on and as of the date of such Borrowing with the same effect as
though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date;
(c) The Borrower shall be in compliance with all of the terms and
provisions set forth herein on its part to be observed or performed, and at
the time of, and immediately after such Borrowing, no Event of Default or
Default shall have occurred and be continuing; and
(d) If the proceeds of such Borrowing are to be used to finance any
Acquisition or portion thereof, no default or failure in the satisfaction
of a condition to such Acquisition or such portion thereof shall have
occurred and be continuing under the definitive contracts governing such
Acquisition or such portion thereof, if the effect of such default or
failure would be to materially increase the aggregate purchase price of the
assets subject of such Acquisition or such portion thereof or materially
decrease the aggregate value of such assets, without the consent of the
Administrative Agent.
Each Borrowing shall be deemed to constitute a representation and
warranty by the Borrower on the date of such Borrowing as to the matters
specified in paragraphs (b), (c) and (if applicable) (d) of this
Section 4.01.
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Section 4.02. Effective Date.
The obligations of the Lenders to make Loans hereunder shall not
become effective until the date on which each of the following conditions
is satisfied (or waived in accordance with Section 9.08):
(a) The Borrower shall have entered into definitive purchase and sale
contracts with respect to the Acquisitions, and the Borrower shall not have
agreed to any modification of such contracts since the date of this
Agreement without the consent of the Administrative Agent if the effect of
such modification would be to materially increase the aggregate purchase
price of the assets subject of the Acquisitions or materially decrease the
aggregate value of such assets.
(b) The Administrative Agent shall have received a favorable written
opinion of the general counsel of the Borrower, dated the Effective Date
and addressed to the Lenders, to the effect set forth in Exhibit D hereto,
and the Borrower hereby instructs such counsel to deliver such opinion to
the Administrative Agent;
(c) All legal matters incident to this Agreement and the borrowings
hereunder shall be satisfactory to the Administrative Agent and the
Lenders;
(d) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments thereto,
of the Borrower, certified as of a recent date by the Secretary of State of
the state of its organization, and a certificate as to the good standing of
the Borrower as of a recent date, from such Secretary of State; (ii) a
certificate of the Secretary or Assistant Secretary of the Borrower dated
the Effective Date and certifying (A) that attached thereto is a true and
complete copy of the by-laws of the Borrower as in effect on the Effective
Date and at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the Board of Directors of the
Borrower authorizing the execution, delivery and performance of this
Agreement and the borrowings hereunder, and that such resolutions have not
been modified, rescinded, or amended and are in full force and effect,
(C) that the certificate or articles of incorporation of the Borrower have
not been amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above, and
(D) as to the incumbency and specimen signature of each officer executing
this Agreement or any other document delivered in connection herewith on
behalf of the Borrower; (iii) a certificate of another officer as to the
incumbency and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to (ii) above; (iv) an irrevocable
notice from the Borrower requesting termination of the "Total Commitment"
under the Existing Facility effective automatically on the Effective Date
and (v) such other documents as the Administrative Agent or the Lenders may
reasonably request;
(e) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by a Financial Officer of the Borrower,
confirming compliance with the conditions precedent set forth in
paragraphs (b) and (c) of Section 4.01 and paragraph (a) of this Section;
39
(f) The Administrative Agent shall have received all Fees and other
amounts due and payable on or prior to the Effective Date;
(g) All "Commitments" (as defined in the Existing Facility) under the
Existing Facility shall have been terminated in accordance with the terms
thereof and all "Loans" (as defined in the Existing Facility) outstanding
thereunder shall have been repaid or prepaid together with accrued interest
thereon and all other amounts payable to the "Lenders" (as defined in the
Existing Facility) under the Existing Facility; and
(h) The Administrative Agent shall have received satisfactory evidence
that the commercial paper of the Borrower is rated at least A2 by S&P and
P2 by Xxxxx'x.
Article V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with the Administrative Agent and
each Lender that, so long as this Agreement shall remain in effect or the
principal of or interest on any Loan (or any portion thereof), or any other
expenses or amounts payable hereunder, shall be unpaid, the Borrower will:
Section 5.01. Existence; Businesses and Properties.
(a) Preserve and maintain, cause each of the Principal Subsidiaries to
preserve and maintain, and cause each other Subsidiary to preserve and
maintain (where the failure by any such other Subsidiary to so preserve and
maintain would likely result in a Material Adverse Effect), its corporate
existence, rights and franchises, provided, however, that the corporate
existence of any Principal Subsidiary may be terminated if such termination
is not disadvantageous to the Administrative Agent or any Lender;
(b) continue to own all of the outstanding shares of common stock of
each Principal Subsidiary;
(c) comply, and cause each of the Subsidiaries to comply, in all
material respects, with all applicable laws, rules, regulations and orders,
including, without limitation, all Environmental Laws;
(d) pay, and cause each of the Subsidiaries to pay, before any such
amounts become delinquent, (i) all taxes, assessments and governmental
charges imposed upon it or upon its property, and (ii) all claims
(including without limitation, claims for labor, materials, supplies, or
services) which might, if unpaid, become a Lien upon its property, unless,
in each case, the validity or amount thereof is being disputed in good
faith, and the Borrower has maintained adequate reserves with respect
thereto;
(e) keep, and cause each of the Subsidiaries to keep, proper books of
record and account, containing complete and accurate entries of all
financial and business transactions of the Borrower and such Subsidiary;
40
(f) continue to carry on, and cause each Principal Subsidiary to
continue to carry on, substantially the same type of business as the
Borrower or such Principal Subsidiary conducted as of the date hereof and
business reasonably related thereto, except for changes in such business
that result from the sale of Utilities Assets and the consummation of the
Acquisitions; and
(g) maintain or cause to be maintained insurance with financially
sound and reputable insurers, or self-insurance, with respect to its
properties and business and the properties and business of the Subsidiaries
against loss or damage of the kinds customarily insured against by
reputable companies in the same or similar businesses, such insurance to be
of such types and in such amounts (with such deductible amounts) as is
customary for such companies under similar circumstances;
provided, however, that the foregoing shall not limit the right of the
Borrower or any of its Subsidiaries to engage in any transaction not
otherwise prohibited by Section 6.02, 6.03 or 6.04.
Section 5.02. Financial Statements, Reports, etc.
In the case of the Borrower, furnish to the Administrative Agent and
each Lender:
(a) as soon as available and in any event within 110 days after the
end of each fiscal year, consolidated balance sheets and the related
statements of income and cash flows of the Borrower and its Subsidiaries
(the Borrower and its Subsidiaries being collectively referred to as the
"Companies") as of the close of such fiscal year (which requirement shall
be deemed satisfied by the delivery of the Borrower's Annual Report on
Form 10-K (or any successor form) for such year), all audited by KPMG Peat
Marwick or other independent public accountants of recognized national
standing and accompanied by an opinion of such accountants to the effect
that such consolidated financial statements fairly present in all material
respects the financial condition and results of operations of the Companies
on a consolidated basis in accordance with GAAP consistently applied;
(b) within 65 days after the end of each of the first three fiscal
quarters of each fiscal year, consolidated balance sheets and related
statements of income and cash flows of the Companies as of the close of
such fiscal quarter and the then elapsed portion of the fiscal year (which
requirement shall be deemed satisfied by the delivery of the Borrower's
Quarterly Report on Form 10-Q (or any successor form) for such quarter),
each certified by a Financial Officer as fairly presenting the financial
condition and results of operations of the Companies on a consolidated
basis in accordance with GAAP consistently applied, subject to normal
year-end audit adjustments;
(c) promptly upon the mailing or filing thereof, copies of all
financial statements, reports and proxy statements mailed to the Borrower's
public shareholders, and copies of all registration statements (other than
those on Form S-8) and Form 8-K's (to the extent that such Form 8-K's
disclose actual or potential adverse developments with respect to the
Borrower or any of its Subsidiaries that constitute, or could reasonably be
anticipated to constitute, a Material Adverse Effect) filed with the
Securities and Exchange Commission (or any successor thereto) or any
national securities exchange;
41
(d) prompt notice of any reduction in the credit rating given to the
Borrower by S&P or Xxxxx'x;
(e) promptly after (i) the occurrence thereof, notice of any ERISA
Termination Event or "prohibited transaction", as such term is defined in
Section 4975 of the Code, with respect to any Plan that results, or could
reasonably be anticipated to result, in a Material Adverse Effect, which
notice shall specify the nature thereof and the Borrower's proposed
response thereto, and (ii) actual knowledge thereof, copies of any notice
of PBGC's intention to terminate or to have a trustee appointed to
administer any Plan; and
(f) promptly, from time to time, such other information, regarding its
operations, business affairs and financial condition, or compliance with
the terms of this Agreement, as the Administrative Agent or any Lender may
reasonably request.
Section 5.03. Litigation and Other Notices.
Furnish to the Administrative Agent and each Lender prompt written
notice of the following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) proposed to be taken with
respect thereto;
(b) the filing or commencement of, or any written notice of intention
of any Person to file or commence, any action, suit or proceeding, whether
at law or in equity or by or before any Governmental Authority, against the
Borrower or any of the Subsidiaries which is reasonably likely to be
adversely determined and which, if adversely determined, could reasonably
be anticipated to result in a Material Adverse Effect;
(c) any development with respect to the Borrower or any Subsidiary
that has resulted in, or could reasonably be anticipated to result in, a
Material Adverse Effect; and
(d) its receipt of any Net Cash Proceeds from any Sale Transaction.
Section 5.04. Maintaining Records.
Maintain all financial records in accordance with GAAP and, upon
reasonable notice, permit any Lender to visit and inspect the financial
records of the Borrower at reasonable times and as often as requested and
to make extracts from and copies of such financial records, and permit any
representatives designated by any Lender to discuss the affairs, finances
and condition of the Borrower with the appropriate officers thereof and,
with the Borrower's consent (which shall not be unreasonably withheld), the
independent accountants therefor; provided, however, that if the Borrower
shall so require, a single representative shall be appointed by Lenders
holding at least 50% of the aggregate outstanding principal balance of the
Loans to exercise the rights granted under this Section 5.04.
42
Section 5.05. Use of Proceeds.
Use the proceeds of the Loans only for the purposes set forth in the
preamble of this Agreement; provided, however, that no such proceeds shall
be used directly or indirectly in connection with any Hostile Acquisition.
Article VI
NEGATIVE COVENANTS
The Borrower covenants and agrees with each Lender and the
Administrative Agent that, so long as this Agreement shall remain in effect
or the principal of or interest on any Loan (or any portion thereof), or
any other expenses or amounts payable hereunder, shall be unpaid, it will
not:
Section 6.01. Liens.
Create, incur, assume, or suffer to exist, or permit any of the
Principal Subsidiaries to create, incur, assume, or suffer to exist, any
Lien on any of its property now owned or hereafter acquired to secure any
Indebtedness of the Borrower or any such Principal Subsidiary, other than
(a) Liens incurred or deposits made in the ordinary course of business to
secure surety and appeal bonds, leases, return-of-money bonds and other
similar obligations (exclusive of obligations of the payment of borrowed
money); (b) Liens created under or in connection with the First Mortgage
Bond Indentures or any other indentures governing the issuance of mortgage
bonds by the Borrower; (c) pledges or deposits to secure the utility
obligations of the Borrower incurred in the ordinary course of business;
(d) Liens upon or in property now owned or hereafter acquired to secure
Indebtedness incurred solely for the purpose of financing the acquisition,
construction or improvement of any property, provided that such
Indebtedness shall not exceed the fair market value of the property being
acquired, constructed or improved; (e) Liens on the assets of any Principal
Subsidiary to secure the repayment of project financing for such Principal
Subsidiary; (f) Liens on the assets of any Person merged or consolidated
with or into (in accordance with Section 6.04) the Borrower or any
Principal Subsidiary that were in effect at the time of such merger or
consolidation; and (g) Liens securing Indebtedness of the Borrower or of
any Principal Subsidiary to the Rural Electrification Administration, the
Rural Utilities Service, the Rural Telephone Bank or the Rural Telephone
Finance Corporation (or any successor to any such agency); provided,
however, that the Borrower or any Principal Subsidiary may create, incur,
assume or suffer to exist other Liens (in addition to Liens excepted by the
foregoing clauses (a) through (g)) on its assets so long as the assets
subject to such Liens do not represent in the aggregate more than 20% of
the Borrower's Consolidated Tangible Assets.
Section 6.02. Ownership of the Principal Subsidiaries.
Sell, assign, pledge, or otherwise transfer or dispose of any shares
of common stock, voting stock, or stock convertible into voting or common
stock of any Principal Subsidiary, except to another Subsidiary and except
to the extent the assets of such Principal Subsidiary consist entirely of
Utilities Assets at the time such transaction is consummated.
43
Section 6.03. Asset Sales.
Permit any Principal Subsidiary to sell, assign, or otherwise dispose
of assets (whether in one transaction or a series of transactions), if
after giving effect to such transaction, such Principal Subsidiary will
have disposed of, in the aggregate, assets representing more than 25% of
such Principal Subsidiary's aggregate Consolidated Tangible Assets as of
the date upon which such Principal Subsidiary first became a Principal
Subsidiary; provided that (i) any Principal Subsidiary may transfer assets
representing up to 100% of such Principal Subsidiary's Consolidated
Tangible Assets to any other Subsidiary or to the Borrower, and (ii) any
Subsidiary may dispose of its Utilities Assets.
Section 6.04. Mergers.
Merge or consolidate with, or sell, assign, lease, or otherwise
dispose of (whether in one transaction or a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired),
except for Utilities Assets, to any Person, or permit any Principal
Subsidiary to do so, except that any Subsidiary may merge into or, subject
to Section 6.03, transfer assets to the Borrower or any other Subsidiary
and the Borrower may merge with any Person; provided that, immediately
thereafter and after giving effect thereto, no event shall occur or be
continuing which constitutes an Event of Default or a Default and, in the
case of any such merger to which the Borrower is a party, either the
Borrower is the surviving corporation or the surviving entity (if not the
Borrower) has a consolidated net worth (as determined in accordance with
GAAP) immediately subsequent to such merger at least equal to the
Consolidated Net Worth of the Borrower immediately prior to such merger and
expressly assumes the obligations of the Borrower hereunder; provided,
however, that, notwithstanding the foregoing, the Borrower and any of the
Principal Subsidiaries may sell assets in the ordinary course of its
business and may sell or otherwise dispose of worn out or obsolete
equipment on a basis consistent with good business practices.
Section 6.05. Restrictions on Dividends.
Enter into or permit any Principal Subsidiary to enter into, any
contract or agreement (other than with a governmental regulatory authority
having jurisdiction over the Borrower or such Principal Subsidiary)
restricting the ability of such Principal Subsidiary to pay dividends or
make distributions to the Borrower in any manner that would impair the
ability of the Borrower to meet its present and future obligations
hereunder. The Secretary of the Borrower or another officer of the Borrower
satisfactory to the Administrative Agent shall, prior to entry into any
contract or agreement that could restrict the ability of any Principal
Subsidiary to pay dividends or make distributions to the Borrower, deliver
to the Lenders a certificate certifying (a) to the absence of any Event of
Default or Default after giving effect to the entry by such Principal
Subsidiary into such contract or agreement, and (b) that such contract or
agreement will not impair the ability of the Borrower to meet its present
and future obligations hereunder.
Section 6.06. Transactions with Affiliates.
Sell or transfer any property or assets to, or purchase or acquire any
property or assets from, or otherwise engage in any other transactions
with, any of its Affiliates, except that as long as no Default or Event of
Default shall have occurred and be continuing, the Borrower or any
Subsidiary may engage in any of the foregoing transactions (i) in the
ordinary course of business at prices and on terms and conditions not less
favorable to the Borrower or such Subsidiary than could be obtained on an
arm's-length basis from unrelated third parties, (ii) as otherwise may be
required by any Federal or state Governmental Authority, or (iii) so long
as such transactions are not materially disadvantageous to the Borrower.
44
Section 6.07. Minimum Consolidated Net Worth.
Permit its Consolidated Net Worth at any time to be less than
$1,500,000,000.
Article VII
EVENTS OF DEFAULT
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in
connection with this Agreement or the Borrowings hereunder, or any
representation, warranty, statement, or information contained in any
written report, certificate, financial statement, or other instrument
furnished in connection with or pursuant to this Agreement, shall prove to
have been false or misleading in any material respect when so made, deemed
made, or furnished;
(b) default shall be made in the payment of any principal of any Loan
(or any portion thereof) when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed or for prepayment
thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan
(or any portion thereof) or any Fee or any other amount (other than an
amount referred to in (b) above) due hereunder, when and as the same shall
become due and payable, and such default shall continue unremedied for a
period of five Business Days;
(d) default shall be made in the due observance or performance of any
covenant, condition, or agreement contained in Section 5.01(f) or
Section 5.05 or in Article VI;
(e) default shall be made in the due observance or performance of any
covenant, condition, or agreement contained herein (other than those
specified in (b), (c), or (d) above) and such default shall continue
unremedied for a period of 30 days after the earlier to occur of (i) the
Borrower obtaining knowledge thereof and (ii) the date that written notice
thereof shall have been given to the Borrower by the Administrative Agent
or any Lender;
(f) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking
(i) relief in respect of the Borrower or any Principal Subsidiary, or of a
substantial part of the property or assets of the Borrower or a Principal
Subsidiary, under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal or state bankruptcy, insolvency,
receivership, or similar law, (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator, or similar official for the Borrower
or any Principal Subsidiary or for a substantial part of the property or
assets of the Borrower or a Principal Subsidiary, or (iii) the winding-up
or liquidation of the Borrower or any Principal Subsidiary; and such
proceeding or petition shall continue undismissed for 60 days or an order
or decree approving or ordering any of the foregoing shall be entered;
45
(g) the Borrower or any Principal Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11
of the United States Code, as now constituted or hereafter amended, or any
other Federal or state bankruptcy, insolvency, receivership, or similar
law, (ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition described
in (f) above, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator, or similar official for the
Borrower or any Principal Subsidiary or for a substantial part of the
property or assets of the Borrower or any Principal Subsidiary, (iv) file
an answer admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the benefit of
creditors, (vi) become unable, admit in writing its inability, or fail
generally to pay its debts as they become due, or (vii) take any action for
the purpose of effecting any of the foregoing;
(h) the Borrower or any Principal Subsidiary, as the case may be,
fails to pay when due, or within any grace period applicable thereto by the
terms thereof, any other Indebtedness of the Borrower or any Principal
Subsidiary aggregating $50,000,000 or more;
(i) the Borrower or any Principal Subsidiary shall fail to observe or
perform any covenant or agreement contained in any single agreement or
instrument relating to any Indebtedness in excess of (i) $75,000,000 in the
aggregate, with respect to any Indebtedness issued on a tax-exempt basis,
and (ii) $50,000,000 in the aggregate, with respect to all other
Indebtedness, in each case within any applicable grace period, or any other
event shall occur if the effect of such failure or other event is to
accelerate, or to permit the holder of such Indebtedness or any other
Person to accelerate, the maturity of such Indebtedness; or any such
Indebtedness shall be required to be prepaid (other than by a regularly
scheduled required prepayment or the exercise by the Borrower or such
Principal Subsidiary of its right to make a voluntary prepayment) in whole
or in part prior to its stated maturity;
(j) a judgment or order for the payment of money in excess of
$50,000,000 and having a Material Adverse Effect shall be rendered against
the Borrower or any of the Subsidiaries and such judgment or order shall
continue unsatisfied (in the case of a money judgment) and in effect for a
period of 30 days during which execution shall not be effectively stayed or
deferred (whether by action of a court, by agreement, or otherwise);
(k) a Plan shall fail to maintain the minimum funding standard
required by Section 412(a) of the Code for any plan year or a waiver of
such standard is sought or granted under Section 412(d), or a Plan is or
shall have been terminated or the subject of termination proceedings under
ERISA, or the Borrower or an ERISA Affiliate has incurred a liability to or
on account of a Plan under Section 4062, 4063, 4064, 4201 or 4204 of ERISA,
and there shall result from any such event or events a Material Adverse
Effect; and
(l) there shall have occurred a Change in Control;
46
then, and in every such event (other than an event with respect to the
Borrower described in paragraph (f) or (g) above), and at any time
thereafter during the continuance of such event, the Administrative Agent,
at the request of the Required Lenders, shall, by notice to the Borrower,
take either or both of the following actions, at the same or different
times: (i) terminate forthwith the Commitments and (ii) declare the Loans
then outstanding to be forthwith due and payable in whole or in part,
whereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and any unpaid accrued Fees and all
other liabilities of the Borrower accrued hereunder, shall become forthwith
due and payable, without presentment, demand, protest, or any other notice
of any kind, all of which are hereby expressly waived by the Borrower,
anything contained herein to the contrary notwithstanding; and in any event
with respect to the Borrower described in paragraph (f) or (g) above, the
Commitments shall automatically terminate and the principal of the Loans
then outstanding, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of the Borrower accrued hereunder,
shall automatically become due and payable, without presentment, demand,
protest, or any other notice of any kind, all of which are hereby expressly
waived by the Borrower, anything contained herein to the contrary
notwithstanding.
Article VIII
THE ADMINISTRATIVE AGENT
In order to expedite the transactions contemplated by this Agreement,
The Chase Manhattan Bank is hereby appointed to act as Administrative Agent
on behalf of the Lenders. Each of the Lenders, and each Transferee by its
agreement to be bound hereby, irrevocably authorizes the Administrative
Agent to take such actions on behalf of such Lender or Transferee and to
exercise such powers as are specifically delegated to the Administrative
Agent by the terms and provisions hereof, together with such actions and
powers as are reasonably incidental thereto. The Administrative Agent is
hereby expressly authorized by the Lenders, without hereby limiting any
implied authority, (a) to receive on behalf of the Lenders all payments of
principal of and interest on the Loans and all other amounts due to the
Lenders hereunder, and promptly to distribute to each Lender its proper
share of each payment so received; (b) to promptly give notice on behalf of
each of the Lenders to the Borrower of any Event of Default specified in
this Agreement of which the Administrative Agent has actual knowledge
acquired in connection with its agency hereunder; and (c) to distribute to
each Lender copies of all notices, financial statements and other materials
delivered by the Borrower pursuant to this Agreement as received by the
Administrative Agent.
Neither the Administrative Agent nor any of its directors, officers,
employees, or agents shall be liable as such for any action taken or
omitted by any of them, except for its or his own gross negligence or
willful misconduct, or be responsible for any statement, warranty, or
representation herein or the contents of any document delivered in
connection herewith, or be required to ascertain or to make any inquiry
concerning the performance or observance by the Borrower of any of the
terms, conditions, covenants, or agreements contained herein. The
Administrative Agent shall not be responsible to the Lenders or any
Transferee for the due execution, genuineness, validity, enforceability, or
effectiveness of this Agreement or any other instruments or agreements. The
Administrative Agent may deem and treat each Lender party hereto as a
"Lender" hereunder and for all purposes hereof until it shall have received
notice, given as provided herein, of the assignment of all of such Lender's
rights and obligations hereunder. The Administrative Agent shall in all
cases be fully protected in acting, or refraining from acting, in
accordance with written instructions signed by the Required Lenders (or
such other number of Lenders as is expressly required hereby with respect
to such action or inaction) and, except as otherwise specifically provided
herein, such instructions and any action or inaction pursuant thereto shall
be binding on all the Lenders and each Transferee. The Administrative Agent
shall, in the absence of knowledge to the contrary, be entitled to rely on
any instrument or document believed by it in good faith to be genuine and
correct and to have been signed or sent by the proper Person or Persons.
Neither the Administrative Agent nor any of its directors, officers,
employees, or agents shall have any responsibility to the Borrower on
account of the failure of or delay in performance or breach by any Lender
of any of its obligations hereunder or to any Lender on account of the
failure of or delay in performance or breach by any other Lender or the
Borrower of any of their respective obligations hereunder or in connection
herewith. The Administrative Agent may execute any and all duties hereunder
by or through agents or employees and shall be entitled to rely upon the
advice of legal counsel selected by it with respect to all matters arising
hereunder and shall not be liable for any action taken or suffered in good
faith by it in accordance with the advice of such counsel.
47
The Lenders hereby acknowledge that the Administrative Agent shall be
under no duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement unless it shall be requested
in writing to do so by the Required Lenders.
Subject to the appointment and acceptance of a successor
administrative agent as provided below, the Administrative Agent may resign
at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Borrower shall have the right to appoint a successor,
provided that any successor selected by the Borrower must be approved by
the Required Lenders. If no successor shall have been so appointed by the
Borrower and shall have accepted such appointment within 20 Business Days
after the retiring Administrative Agent gives notice of its resignation,
then the Required Lenders shall have the right to appoint a successor. If
no successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 Business Days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
administrative agent which shall be a bank with an office in New York, New
York and having a combined capital and surplus of at least $1,000,000,000
or an Affiliate of any such bank. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor bank, such successor shall
succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. After
the Administrative Agent's resignation hereunder, the provisions of this
Article and Section 9.05 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was
acting as Administrative Agent.
With respect to the Loans made by it hereunder, the Administrative
Agent in its individual capacity and not as Administrative Agent shall have
the same rights and powers as any other Lender and may exercise the same as
though it were not the Administrative Agent, and the Administrative Agent
and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent.
48
Each Lender agrees (i) to reimburse the Administrative Agent, on
demand, in the amount of its pro rata share (based on its Commitment
hereunder or, if the Commitments shall have terminated, based on its
outstanding Loans hereunder) of any expenses incurred for the benefit of
the Lenders by the Administrative Agent, including reasonable counsel fees
and compensation of agents and employees paid for services rendered on
behalf of the Lenders, which shall not have been reimbursed by the
Borrower, and (ii) to indemnify and hold harmless the Administrative Agent
and any of its directors, officers, employees, or agents, on demand, in the
amount of such pro rata share, from and against any and all liabilities,
taxes, obligations, losses, damages, penalties, actions, judgments, suits,
cost, expenses, or disbursements of any kind or nature whatsoever which may
be imposed on, incurred by, or asserted against it in its capacity as the
Administrative Agent or any of them in any way relating to or arising out
of this Agreement or any action taken or omitted by it or any of them under
this Agreement, to the extent the same shall not have been indemnified by
the Borrower; provided that no Lender shall be liable to the Administrative
Agent or any of them for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses, or
disbursements resulting from the gross negligence or willful misconduct of
the Administrative Agent or any of its directors, officers, employees, or
agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to
make its own decisions in taking or not taking action under or based upon
this Agreement, any related agreement or any document furnished hereunder
or thereunder.
None of the Lenders identified on the facing page or signature pages
of this Agreement as a "co-syndication agent" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other
than those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders so identified as a "co-syndication agent"
shall have or be deemed to have any fiduciary relationship with any Lender.
Each Lender acknowledges that it has not relied, and will not rely, on any
of the Lenders so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
Article IX
MISCELLANEOUS
Section 9.01. Notices.
Notices and other communications provided for herein shall be in
writing and shall be delivered by the method, if any, specified in the
relevant provisions of this Agreement and otherwise by hand or overnight
courier service, mailed or sent by telecopy, as follows:
49
(a) if to the Borrower, to it at 0 Xxxx Xxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, Attention of Treasurer (Telecopy No. 203-614-4625);
(b) if to the Administrative Agent, to it at One Chase Xxxxxxxxx
Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxx Xxxxxx
(Telecopy No. 212-552-5658), with a copy to Xxxx X. Xxxxxxxxxx, The Chase
Manhattan Bank, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Telecopy No.
212-270-4164); and
(c) if to a Lender, to it at its address (or telecopy number) set
forth in Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy, or on the date five Business Days after dispatch by certified or
registered mail, if mailed, in each case delivered, sent, or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01; provided, that notices from the Borrower to the Administrative
Agent relating to Borrowings or Conversions shall be effective only on actual
receipt.
Section 9.02. Survival of Agreement.
All covenants, agreements, representations and warranties made by the
Borrower herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the Lenders and shall survive the
making by the Lenders of the Loans, regardless of any investigation made by
the Lenders or on their behalf, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Loan or any Fee
or any other amount payable under this Agreement is outstanding and unpaid
or so long as the Commitments have not been terminated.
Section 9.03. Binding Effect.
This Agreement shall become effective when it shall have been executed
by the Borrower and the Administrative Agent and when the Administrative
Agent shall have received copies hereof which, when taken together, bear
the signatures of each Lender, and thereafter shall be binding upon and
inure to the benefit of the Borrower, the Administrative Agent and each
Lender and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights hereunder or any
interest herein without the prior consent of all the Lenders.
Section 9.04. Successors and Assigns.
(a) Whenever in this Agreement any of the parties hereto is referred
to, such reference shall be deemed to include the successors and assigns,
of such party; and all covenants, promises and agreements by or on behalf
of the Borrower, the Administrative Agent or the Lenders that are contained
in this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
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(b) Each Lender may assign to one or more assignees all or a portion
of its interests, rights and obligations under this Agreement, including
all or a portion of its Commitment and the Loans at the time owing to it;
provided, however, that (i) except in the case of an assignment to a Lender
or an Affiliate of such Lender, or an assignment to a Federal Reserve Bank,
the Borrower and the Administrative Agent must give their prior written
consent to such assignment, which consent shall not be unreasonably
withheld, provided, further, however, that the consent of the Borrower to
any such assignment shall not be required at any time an Event of Default
shall have occurred and be continuing, (ii) each such assignment shall be
of a constant, and not a varying, percentage of all the assigning Lender's
rights or obligations under this Agreement, (iii) the amount of the
Commitment or Loans of the assigning Lender subject to any such assignment
(determined as of the date the Assignment and Acceptance with respect to
such assignment is delivered to the Administrative Agent) shall not be less
than $5,000,000 and the amount of the Commitment or Loans of such Lender
remaining after such assignment shall not be less than $5,000,000 or shall
be zero, (iv) the parties to each such assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500 and (v) the assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire. Subject to payment in full by the assignee to
the assignor and upon acceptance and recording pursuant to paragraph (e) of
this Section 9.04, from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be at least five
Business Days after the execution thereof, (A) the assignee thereunder
shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Acceptance, have (in addition to any such rights and
obligations theretofore held by it) the rights and obligations of a Lender
under this Agreement, and (B) the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto (but shall continue to be entitled to the
benefits of Sections 2.13, 2.15, 2.19 and 9.05, as well as to any Fees
accrued for its account hereunder and not yet paid)). Notwithstanding the
foregoing, any Lender assigning its rights and obligations under this
Agreement may retain any Competitive Loans made by it outstanding at such
time, and in such case shall retain its rights hereunder in respect of any
Loans so retained until such Loans have been repaid in full in accordance
with this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as
follows: (i) such assigning Lender warrants that it is the legal and
beneficial owner of the interest being assigned thereby free and clear of
any adverse claim and that its Commitment, and the outstanding balances of
its Standby Loans and Competitive Loans (to the extent assigned), in each
case without giving effect to assignments thereof which have not become
effective, are as set forth in such Assignment and Acceptance, (ii) except
as set forth in (i) above, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties, or representations made in or in connection with this
Agreement, or the execution, legality, validity, enforceability,
genuineness, sufficiency, or value of this Agreement or any other
instrument or document furnished pursuant hereto or the financial condition
of the Borrower or any Subsidiary or the performance or observance by the
Borrower or any Subsidiary of any of its obligations under this Agreement
or any other instrument or document furnished pursuant hereto; (iii) such
assignee represents and warrants that it is legally authorized to enter
into such Assignment and Acceptance; (iv) such assignee confirms that it
has received a copy of this Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 5.02 and such
other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and
Acceptance; (v) such assignee will independently and without reliance upon
the Administrative Agent, such assigning Lender, 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 decisions in taking or not taking
action under this Agreement; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as administrative agent on its
behalf and to exercise such powers under this Agreement as are delegated to
the Administrative Agent by the terms hereof, together with such powers as
are reasonably incidental thereto; and (vii) such assignee agrees that it
will perform in accordance with their terms all the obligations which by
the terms of this Agreement are required to be performed by it as a Lender.
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(d) The Administrative Agent shall maintain at one of its offices in
The City of New York a copy of each Assignment and Acceptance delivered to
it and a register for the recordation of the names and addresses of the
Lenders, and the Commitment of, and principal amount of the Loans owing to,
each Lender pursuant to the terms hereof from time to time (the
"Register"). The Administrative Agent shall also record in the Register the
then scheduled Termination Date and shall update the Register from time to
time upon any change in a Lender's Commitment and Loans pursuant to the
terms of this Agreement. The entries in the Register shall be conclusive in
the absence of manifest error, and the Borrower, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection
by the Borrower and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, together with an
Administrative Questionnaire completed in respect of the assignee (unless
the assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) above and, if required, the
written consent of the Borrower and the Administrative Agent to such
assignment, the Administrative Agent shall (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register,
(iii) give prompt notice thereof to the Lenders and (iv) send a copy of
such Assignment and Acceptance to the Borrower.
(f) Each Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing
to it); provided, however, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) the participating banks or other entities shall be
entitled to the benefit of the cost protection provisions contained in
Sections 2.13, 2.15 and 2.19 to the same extent as if they were Lenders and
(iv) the Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement, and such Lender
shall retain the sole right to enforce the obligations of the Borrower
relating to the Loans and to approve any amendment, modification or waiver
of any provision of this Agreement (other than amendments, modifications,
or waivers decreasing any fees payable hereunder or the amount of principal
of or the rate at which interest is payable on the Loans, extending any
scheduled principal payment date or date fixed for the payment of interest
on the Loans or Fees, or changing or extending the Commitments).
52
(g) Any Lender may, in connection with any assignment or proposed
assignment pursuant to this Section 9.04, disclose to the assignee or
proposed assignee any information relating to the Borrower furnished to
such Lender by or on behalf of the Borrower; provided that, prior to any
such disclosure of information designated by the Borrower as confidential,
each such assignee or proposed assignee shall execute an agreement whereby
such assignee shall agree (subject to customary exceptions) to preserve the
confidentiality of such confidential information. It is understood that
confidential information relating to the Borrower would not ordinarily be
provided in connection with assignments of Competitive Loans. No Lender
may, in connection with any participation or proposed participation
pursuant to this Section 9.04, disclose to any participant or proposed
participant any confidential information relating to the Borrower without
the prior written consent of the Borrower.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement and its promissory notes (if any) to a Federal Reserve
Bank; provided that no such assignment shall release a Lender from any of
its obligations hereunder.
(i) The Borrower shall not assign or delegate any of its rights or
duties hereunder.
Section 9.05. Expenses; Indemnity.
(a) The Borrower agrees to pay (i) all reasonable legal fees and
disbursements incurred by the Administrative Agent in connection with the
preparation of this Agreement and (ii) all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) incurred by the
Administrative Agent and any Lender in connection with any amendments,
modifications or waivers of the provisions hereof or thereof or incurred by
the Administrative Agent or any Lender in connection with the enforcement
or protection of their rights in connection with this Agreement.
(b) The Borrower agrees to indemnify the Administrative Agent, each
Lender and each of their respective directors, officers, employees,
Affiliates and agents (each such Person being called an "Indemnitee")
against, and to hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses, including reasonable
counsel fees and expenses, incurred by or asserted against any Indemnitee
arising out of, (i) the use of the proceeds of the Loans or (ii) any claim,
litigation, investigation, or proceeding relating to this Agreement, the
use of such proceeds or the transactions contemplated hereby, 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 negligence or willful misconduct of such Indemnitee. Each
Lender shall notify the Borrower promptly after it determines that it will
make a claim for indemnification under this Section 9.05(b). The Borrower
shall be entitled to participate in the defense of the litigation,
investigation, or proceeding giving rise to such claim with counsel
satisfactory to the Lender, in the exercise of its reasonable judgment;
provided, however, that any such participation in such defense shall be
conducted by the Borrower and at the Borrower's expense and in a manner
considered by such Lender to be satisfactory and effective to protect
against such claim without causing damage to the conduct of, or affecting
such Lender's control of, such Lender's defense. The Borrower shall inform
such Lender of its intention to participate in the defense of such claim
within 15 days after receipt of notice thereof from such Lender.
53
(c) The provisions of this Section 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any
term or provision of this Agreement, or any investigation made by or on
behalf of the Administrative Agent or any Lender. All amounts due under
this Section 9.05 shall be payable on written demand therefor.
Section 9.06. Right of Setoff.
If an Event of Default shall have occurred and be continuing, each
Lender 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 of and all the
obligations of the Borrower now or hereafter existing under this Agreement
held by such Lender, irrespective of whether or not such Lender shall have
made any demand under this Agreement and although such obligations may be
unmatured. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff) which such
Lender may have.
Section 9.07. Applicable Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.
Section 9.08. Waivers; Amendment.
(a) No failure or delay of the Administrative Agent or any Lender in
exercising any power or right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent and the
Lenders hereunder are cumulative and are not exclusive of any rights or
remedies which they would otherwise have. No waiver of any provision of
this Agreement or consent to any departure by the Borrower therefrom shall
in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given. No
notice or demand on the Borrower in any case shall entitle the Borrower to
any other or further notice or demand in similar or other circumstances.
54
(b) Except as provided in Section 2.11(e), neither this Agreement nor
any provision hereof may be waived, amended, or modified except pursuant to
an agreement or agreements in writing entered into by the Borrower and the
Required Lenders; provided, however, that no such agreement shall
(i) decrease the principal amount of, or extend the maturity of or any
scheduled principal payment date or date for the payment of any interest
on, any Loan, or waive or excuse any such payment or any part thereof, or
decrease the rate of interest on any Loan, without the prior written
consent of each Lender, (ii) except as provided in Section 2.11(e), change
or extend the Commitment of any Lender or decrease or extend any scheduled
payment date for the Facility Fees of any Lender without the prior written
consent of such Lender, or (iii) amend or modify the provisions of
Section 2.16, the provisions of this Section or the definition of "Required
Lenders", without the prior written consent of each Lender; provided
further that no such agreement shall amend, modify, or otherwise affect the
rights or duties of the Administrative Agent hereunder without the prior
written consent of the Administrative Agent. Each Lender shall be bound by
any waiver, amendment, or modification authorized by this Section or by
Section 2.11(e), and any consent by any Lender pursuant to this Section or
by Section 2.11(e) shall bind any Transferee of its rights and obligations
hereunder.
Section 9.09. Interest Rate Limitation.
Notwithstanding anything herein to the contrary, if at any time the
applicable interest rate, together with all fees and charges which are
treated as interest under applicable law (collectively, the "Charges"), as
provided for herein or in any other document executed in connection
herewith, or otherwise contracted for, charged, received, taken, or
reserved by any Lender, shall exceed the maximum lawful rate (the "Maximum
Rate") which may be contracted for, charged, taken, received, or reserved
by such Lender in accordance with applicable law, the rate of interest
payable to such Lender, together with all Charges payable to such Lender,
shall be limited to the Maximum Rate.
Section 9.10. Entire Agreement.
This Agreement constitutes the entire contract between the parties
relative to the subject matter hereof. Any previous agreement among the
parties with respect to the subject matter hereof is superseded by this
Agreement. Nothing in this Agreement, expressed or implied, is intended to
confer upon any party other than the parties hereto and thereto any rights,
remedies, obligations, or liabilities under or by reason of this Agreement.
Section 9.11. Waiver of Jury Trial.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER, OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER AGREEMENT OR INSTRUMENT EXECUTED AND
DELIVERED IN CONNECTION HEREWITH. EACH PARTY HERETO (a) CERTIFIES THAT NO
REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (b) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND, IF APPLICABLE, ANY OTHER AGREEMENT OR INSTRUMENT EXECUTED
AND DELIVERED IN CONNECTION HEREWITH, BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
55
Section 9.12. Severability.
In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal, or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby. The
parties shall endeavor in good-faith negotiations to replace the invalid,
illegal, or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal,
or unenforceable provisions.
Section 9.13. Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall constitute an original but all of which when taken together
shall constitute but one contract, and shall become effective as provided
in Section 9.03.
Section 9.14. Headings.
Article and Section headings and the Table of Contents used herein are
for convenience of reference only, are not part of this Agreement and are
not to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
Section 9.15. Jurisdiction; Consent to Service of Process.
(a) The Borrower hereby irrevocably and unconditionally submits to the
nonexclusive jurisdiction of any New York State court or Federal court of
the United States of America sitting in New York City, and any appellate
court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any other agreement or instrument executed
and delivered in connection herewith, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the
extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement
shall affect any right that any Lender may otherwise have to bring any
action or proceeding relating to this Agreement against the Borrower or its
properties in the courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action, or
proceeding arising out of or relating to this Agreement or any other
agreement or instrument executed and delivered in connection herewith in
any New York State court or Federal court of the United States of America
sitting in New York City. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any
such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
[Signature pages follow]
56
IN WITNESS WHEREOF, the Borrower, the Administrative Agent and the
Lenders have caused this Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
CITIZENS COMMUNICATIONS COMPANY
By:
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
Name:
Title:
Lenders:
THE CHASE MANHATTAN BANK
By:
Name:
Title:
