TERM LOAN CREDIT AGREEMENT
Exhibit 10.42
EXECUTION VERSION
among
IDAHO POWER COMPANY,
as Borrower,
THE LENDERS NAMED HEREIN
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
X.X. XXXXXX SECURITIES INC.
as
Lead Arranger and Sole Book Runner
Dated as of
April 1, 2008
Table of Contents
Page
ARTICLE 1
DEFINITIONS
1.1 Definitions......................................................................................................................1
1.2 Other Interpretive
Provisions..........................................................................................12
ARTICLE 2
THE CREDITS
2.1 Commitments.................................................................................................................13
2.2 Required Payments; Termination.....................................................................................13
2.3 Types of Advances; Minimum Amount of Each
Advance................................................ 13
2.4 Fees...............................................................................................................................13
2.5 Reduction or Termination of Aggregate
Commitment.......................................................14
2.6 Optional Principal
Payments............................................................................................14
2.7 Requesting
Loans...........................................................................................................
14
2.8 Conversion and Continuation of
Outstanding Advances................................................... 14
2.9 Changes in Interest Rate,
etc...........................................................................................15
2.10 Rates Applicable After
Default........................................................................................15
2.11 Method of
Payment........................................................................................................16
2.12 Noteless Agreement; Evidence of
Indebtedness.............................................................. 16
2.13 Telephonic
Notices........................................................................................................
17
2.14 Interest Payment Dates; Interest and Fee
Basis...............................................................17
2.15 Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions.......18
2.16 Lending
Installations.......................................................................................................18
2.17 Non-Receipt of Funds by the Administrative
Agent.........................................................18
2.18 Reserved........................................................................................................................18
2.19 Replacement of
Lender...................................................................................................18
ARTICLE 3
YIELD PROTECTION; TAXES
3.1
Yield
Protection.............................................................................................................19
3.2 Changes in Capital Adequacy
Regulations.......................................................................20
3.3 Availability of Types of
Advances...................................................................................20
3.4 Funding Indemnification..................................................................................................20
3.5 Taxes.............................................................................................................................20
3.6 Alternate Lending Installation; Lender Statements; Survival of
Indemnity..........................23
|
i |
Table of Contents
Page
ARTICLE 4
CONDITIONS PRECEDENT
4.1 Closing Date..................................................................................................................24
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
5.1 Existence and
Standing...................................................................................................25
5.2 Authorization and
Validity...............................................................................................25
5.3 No Conflict; Government
Consent..................................................................................25
5.4 Financial
Statements.......................................................................................................26
5.5 Material Adverse
Change...............................................................................................26
5.6 Taxes.............................................................................................................................26
5.7 Litigation and Contingent
Obligations.............................................................................. 26
5.8 Subsidiaries....................................................................................................................27
5.9 ERISA...........................................................................................................................27
5.10 Accuracy of
Information.................................................................................................27
5.11 Regulation
U..................................................................................................................27
5.12 Material
Agreements......................................................................................................27
5.13 Compliance With
Laws..................................................................................................28
5.14 Ownership of
Properties.................................................................................................28
5.15 Plan Assets; Prohibited
Transactions...............................................................................28
5.16 Environmental
Matters....................................................................................................28
5.17 Investment Company Act............................................................................................... 28
5.18 OFAC; PATRIOT
Act.................................................................................................. 28
ARTICLE 6
COVENANTS
6.1 Financial Reporting.........................................................................................................29
6.2 Use of
Proceeds.............................................................................................................30
6.3 Notice of Default,
etc......................................................................................................30
6.4 Conduct of
Business.......................................................................................................31
6.5 Taxes.............................................................................................................................31
6.6 Insurance....................................................................................................................... 31
6.7 Compliance with
Laws....................................................................................................31
6.8 Maintenance of Properties..............................................................................................31
6.9 Inspection......................................................................................................................
31
6.10 Merger and Sale of
Assets..............................................................................................31
6.11 Liens..............................................................................................................................32
6.12 Leverage
Ratio...............................................................................................................33
6.13 Investments and
Acquisitions..........................................................................................33
|
ii |
Table of Contents
Page
6.14 Subsidiary Dividend
Restrictions.....................................................................................34
6.15 Affiliates.........................................................................................................................34
6.16 OFAC, PATRIOT Act
Compliance...............................................................................34
ARTICLE 7
DEFAULTS
ARTICLE 8
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration...................................................................................................................37
8.2 Amendments..................................................................................................................37
8.3 Preservation of
Rights.....................................................................................................38
ARTICLE 9
GENERAL PROVISIONS
9.1 Survival of
Representations.............................................................................................38
9.2 Governmental
Regulation................................................................................................
38
9.3 Headings........................................................................................................................38
9.4 Entire
Agreement............................................................................................................38
9.5 Several Obligations; Benefits of this
Agreement...............................................................38
9.6 Expenses; Indemnification...............................................................................................39
9.7 Numbers of
Documents..................................................................................................39
9.8 Accounting.....................................................................................................................39
9.9 Severability of
Provisions................................................................................................40
9.10 Nonliability of
Lenders...................................................................................................
40
9.11 Confidentiality.................................................................................................................40
9.12 Nonreliance....................................................................................................................41
9.13 Disclosure......................................................................................................................41
9.14 PATRIOT Act
Notice....................................................................................................41
9.15 Counterparts..................................................................................................................41
ARTICLE 10
THE ADMINISTRATIVE AGENT
10.1 Appointment; Nature of
Relationship...............................................................................41
10.2
Powers..........................................................................................................................
42
10.3 General
Immunity............................................................................................................42
10.4 No Responsibility for Loans, Recitals,
etc........................................................................42
10.5 Action on Instructions of
Lenders....................................................................................42
|
iii |
Table of Contents
Page
10.6 Employment of
Administrative Agents and
Counsel.......................................................43
10.7 Reliance on Documents; Counsel....................................................................................43
10.8 Administrative Agent's Reimbursement and
Indemnification..............................................43
10.9 Notice of Default............................................................................................................44
10.10 Rights as a
Lender..........................................................................................................44
10.11 Lender Credit
Decision...................................................................................................44
10.12 Successor Administrative
Agent......................................................................................44
10.13 Administrative Agent and Arranger
Fees.........................................................................45
10.14 Delegation to
Affiliates....................................................................................................45
10.15 Other
Agents..................................................................................................................45
ARTICLE 11
SETOFF; RATABLE PAYMENTS
11.1 Setoff.............................................................................................................................45
11.2 Ratable
Payments...........................................................................................................46
ARTICLE 12
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and
Assigns..................................................................................................46
12.2 Participations..................................................................................................................47
12.3
Assignments...................................................................................................................47
12.4 Dissemination of Information...........................................................................................49
12.5 Tax
Treatment................................................................................................................49
ARTICLE 13
NOTICES
13.1 Notices..........................................................................................................................49
13.2 Change of
Address........................................................................................................
50
ARTICLE 14
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
14.1 CHOICE OF
LAW.......................................................................................................50
14.2 CONSENT TO
JURISDICTION.................................................................................50
14.3 WAIVER OF JURY
TRIAL..........................................................................................51
|
iv |
Table of Contents
Page
Schedule
I Commitments
Schedule 5.8 List of Subsidiaries
Schedule 5.12 Agreements which restrict Subsidiary Dividends or which
could reasonably be expected to have a
Material
Adverse Effect
Schedule 5.14 Indebtedness and Liens
Schedule 13.1 Notice Addresses
EXHIBIT
A Forms of Opinions
EXHIBIT B Form of Compliance Certificate
EXHIBIT C Form of Assignment Agreement
EXHIBIT D Form of Written Money Transfer Instruction
EXHIBIT E Form of Note
|
v |
This Term Loan
Credit Agreement, dated as of April 1, 2008 is made among Idaho Power Company,
an Idaho corporation, the Lenders, and JPMorgan Chase Bank, N.A., as
Administrative Agent for the Lenders.
In consideration of the mutual provisions, covenants and agreements herein
contained, the parties hereto hereby agree as follows:
ARTICLE
1
DEFINITIONS
1.1.
Definitions. As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the Closing Date, by which the Borrower
or any of its Subsidiaries (i) acquires any
going business or all or substantially all of the assets of any firm,
corporation or limited liability company, or division thereof, whether through
purchase of assets, merger or otherwise or (ii) directly or indirectly acquires
(in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency) or a majority (by percentage or voting power) of the outstanding
ownership interests of a partnership or limited liability company.
"Administrative Agent" means JPMorgan in its capacity as
administrative agent (i.e., contractual representative) of the Lenders pursuant
to Article 10, and not in its individual capacity as a Lender, and any
successor Administrative Agent appointed pursuant to Article 10.
"Administrative Questionnaire" means an administrative
questionnaire, substantially in the form supplied by the Administrative Agent,
completed by a Lender and furnished to the Administrative Agent in connection
with this Agreement.
"Advance" means the borrowing hereunder, (i)
made by the Lenders on the Closing Date, or (ii) converted or continued by the
Lenders on the same date of conversion or continuation and, in either case,
consisting of Loans of the same Type and, in the case of Eurodollar Advances,
for the same Interest Period.
"Affected Lender" is defined in Section 2.19.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. A Person shall be deemed to control another Person if the
controlling Person owns 10% or more of any class of voting securities (or other
ownership interests) of the controlled Person or possesses, directly or
indirectly, the power to direct or cause the direction of the management or
policies of the controlled Person, whether through ownership of stock, by
contract or otherwise.
"Aggregate Commitment" means the aggregate
of the Commitments of all the Lenders, as reduced from time to time pursuant to
the terms hereof.
"Aggregate Outstanding Credit Exposure" means, at any time,
the aggregate of the Outstanding Credit Exposure of all the Lenders.
"Agreement" means this Term Loan Credit Agreement, as amended,
modified, restated or supplemented from time to time in accordance with its
terms.
"Agreement Accounting Principles" means generally accepted
accounting principles as in effect from time to time applied in a manner
consistent with that used in preparing financial statements referred to in Section
5.4.
"Alternate Base Rate" means, for any day, a rate of interest
per annum equal to the higher of (i) the Prime Rate
for such day and (ii) the sum of the Federal Funds Effective Rate for such day
plus 1/2% per annum. Any change in the Alternate Base Rate due to a
change in the Prime Rate or the Federal Funds Effective Rate shall be effective
from and including the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"Applicable Margin" means, with respect to Loans bearing
interest at the Eurodollar Base Rate, 0.75% per annum.
"Approved Fund" means any Person (other than a natural person)
that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
"Arranger" means X.X. Xxxxxx Securities Inc., and its successors, in
its capacity as Lead Arranger and Sole Book Runner.
"Authorized Officer" means any of the Chief Executive Officer,
President, Chief Financial Officer, Vice President or Treasurer of the
Borrower, acting singly.
"Borrower" means Idaho Power Company, an Idaho corporation, and its successors and assigns.
"Borrowing Notice" is defined in Section 2.7.
"Business Day" means (i) with
respect to any borrowing, payment or rate selection of Eurodollar Advances, a
day (other than a Saturday or Sunday) on which banks generally are open in New
York, New York and London, England for the conduct of substantially all of
their commercial lending activities, interbank wire transfers can be made on
the Fedwire system and dealings in United States
dollars are carried on in the London interbank market and (ii) for all other
purposes, a day (other than a Saturday or Sunday) on which banks generally are
open in New York, New York for the conduct of substantially all of their
commercial lending activities and interbank wire transfers can be made on the Fedwire system.
|
2 |
"Capitalized Lease" of a Person means any lease of Property
by such Person as lessee, which would be capitalized on a balance sheet of such
Person prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount
of the obligations of such Person under Capitalized Leases which would be shown
as a liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalent Investments" means (i)
short-term obligations of, or fully guaranteed by, the United States of
America, (ii) commercial paper rated A-1 or better by S&P or P-1 or better
by Moody's, (iii) demand deposit accounts maintained in the ordinary course of
business, and (iv) certificates of deposit issued by and time deposits with
commercial banks (whether domestic or foreign) having capital and surplus in
excess of $100,000,000; provided in each case that the same provides for
payment of both principal and interest (and not principal alone or interest
alone) and is not subject to any contingency regarding the payment of principal
or interest.
"Change" is defined in Section 3.2.
"Change in Control" means the acquisition by any Person, or
two or more Persons acting in concert, of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of 20% or more of the outstanding shares of
voting stock of the Parent.
"Change in Law" means any change in law or in the
interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or governmental authority, in each case that
becomes effective after the date hereof.
"Closing Date" means the first date all the conditions
precedent in Section 4.1 are satisfied or waived in accordance with
the terms of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, for each Lender, the obligation of such
Lender to make Loans to the Borrower on the Closing Date in an aggregate amount
not exceeding the amount set forth opposite its name on Schedule I,
or, if such Lender has entered into one or more assignments that has become
effective pursuant to Section 12.3(a), the amount set forth for
such Lender at such time in the Register maintained by the Administrative
Agent, in either case, as such amount may be reduced from time to time pursuant
to the terms hereof.
"Condemnation" is defined in Section 7(i).
"Consolidated Indebtedness" means at any time the Indebtedness
of the Borrower and its Subsidiaries calculated on a consolidated basis as of
such time; provided, however that the aggregate outstanding
Indebtedness evidenced by Hybrid Securities shall be excluded to the extent
that the total book value of such Hybrid Securities does not exceed 15% of
Consolidated Total Capitalization as of such time.
|
3 |
"Consolidated Net Worth" means at any time the consolidated
stockholders' equity of the Borrower and its Subsidiaries calculated on a
consolidated basis as of such time.
"Consolidated Total Capitalization" means at any time, without
duplication, the sum of (i) Consolidated
Indebtedness, (ii) Consolidated Net Worth and (iii) the aggregate outstanding
amount of Hybrid Securities, each calculated as of such time.
"Contingent Obligation" of a Person means any agreement,
undertaking or arrangement by which such Person assumes, guarantees, endorses,
contingently agrees to purchase or provide funds for the payment of, or
otherwise becomes or is contingently liable upon, the obligation or liability
of any other Person, or agrees to maintain the net worth or working capital or
other financial condition of any other Person, or otherwise assures any
creditor of such other Person against loss, including any comfort letter, operating
agreement, take or pay contract or the obligations of any such Person as
general partner of a partnership with respect to the liabilities of the
partnership.
"Conversion/Continuation Notice" is defined in Section 2.8.
"Controlled Group" means all members
of a controlled group of corporations or other business entities and all trades
or businesses (whether or not incorporated) under common control which,
together with the Borrower or any of its Subsidiaries, are treated as a single
employer under Section 414 of the Code.
"Default" means an event described in Article 7.
"Environmental Laws" means any and all applicable federal,
state, local and foreign statutes, laws, judicial decisions, regulations,
ordinances, rules, judgments, orders, decrees, plans, injunctions, permits,
concessions, grants, franchises, licenses, agreements and other governmental
restrictions relating to (i) the protection of the
environment, (ii) the effect of the environment on human health, (iii)
emissions, discharges or releases of pollutants, contaminants, hazardous
substances or wastes into surface water, ground water or land, or (iv) the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974.
"Eurodollar Advance" means a Loan, or portion thereof, which,
except as otherwise provided in Section 2.10, bears interest at the
applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to any Eurodollar
Advance for any Interest Period, the rate appearing on Reuters BBA Libor Rates
Page 3750 (or on any successor or substitute page of such service, or any
successor to or substitute for such service, providing rate quotations
comparable to those currently provided on such page of such service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event
that such rate is not available at such time for any reason, then the
"Eurodollar Base Rate" with respect to such Eurodollar Advance for
such Interest Period shall be the rate at which dollar deposits of $5,000,000
and for a maturity comparable to such Interest Period are offered by the
principal London office of the 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.
|
4 |
"Eurodollar Rate" means, with respect to any
Eurodollar Advance for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the sum of (i) (a) the Eurodollar Base Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate and (ii) the Applicable Margin.
"Excluded Taxes" means, in the case of each Lender or
applicable Lending Installation and the Administrative Agent, taxes imposed on
its overall net income, receipts, profits, capital, net worth, franchise taxes,
branch profits or similar taxes, imposed on it, by (i)
the jurisdiction under the laws of which such Lender or the Administrative
Agent is incorporated or organized, (ii) the jurisdiction in which the
Administrative Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located, or (iii) the jurisdiction
in which the Lender, Lending Installation or the Administrative Agent carries
on a trade or business.
"Facility Termination Date" means March 31, 2009.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Fee Letter" means the letter agreement dated April 1, 2008
among the Borrower, the Administrative Agent and the Arranger.
"First Mortgage" means that certain Mortgage and Deed of
Trust, dated as of October 1, 1937, as supplemented, under which the Borrower
is Mortgagor and Deutsche Bank Trust Company Americas (formerly known as
Bankers Trust Company) and R.G. Page (Xxxxxxx Xxxx successor individual
trustee) are Trustees, as it may from time to time be further amended,
supplemented or otherwise modified.
"Floating Rate Advance" means a Loan, or portion thereof,
which, except as otherwise provided in Section 2.10, bears interest
at the Alternate Base Rate.
"Hybrid Securities" shall mean any hybrid securities,
including any trust preferred securities, deferrable interest subordinated debt
securities, mandatory convertible debt securities or other hybrid securities
issued by the Borrower or any Subsidiary or financing vehicle of the Borrower
that (i) have an original maturity of at least twenty
(20) years, (ii) require, absent an event of default with respect to such
securities, no repayments or prepayments and no mandatory redemptions or
repurchases, in each case, prior to the date which is ninety-one (91) days
after the occurrence of the Facility Termination Date and (iii) permit the
Borrower or any such Subsidiary or any such financing vehicle of the Borrower,
respectively, at its option, to defer certain scheduled interest payments.
|
5 |
"Indebtedness" of a Person means such
Person's (i) obligations for borrowed money,
(ii) obligations representing the deferred purchase price of Property or
services (other than accounts payable arising in the ordinary course of such
Person's business payable on terms customary in the trade), (iii) obligations,
whether or not assumed, secured by Liens or payable out of the proceeds or
production from Property now or hereafter owned or acquired by such Person,
(iv) obligations which are evidenced by notes, acceptances, or other
instruments, (v) obligations of such Person to purchase securities or
other Property arising out of or in connection with the sale of the same or
substantially similar securities or Property, (vi) Capitalized Lease
Obligations, (vii) Contingent Obligations, (viii) obligations in respect of
Letters of Credit, (ix) Rate Management Obligations, (x) preferred stock
which is required by the terms thereof to be redeemed, or for which mandatory
sinking fund payments are due, by a fixed date, (xi) Off-Balance Sheet
Liabilities, (xii) any other obligation for borrowed money or other financial
accommodation which in accordance with Agreement Accounting Principles would be
shown as a liability on the consolidated balance sheet of such Person and
(xiii) amounts outstanding under a Permitted Receivables
Securitization. For purposes of determining Indebtedness, the
"principal amount" of the obligations of the Borrower or any of its
Subsidiaries in respect of any Rate Management Obligation at any time shall be
the maximum aggregate amount (giving effect to any netting agreements) that the
Borrower or such Subsidiary would be required to pay if such Rate Management
Obligation were terminated at such time of determination.
"Indemnitee" is defined in Section
9.6(b).
"Interest Period" means, with respect to a Eurodollar Advance,
a period of one, two, three or six months commencing on a Business Day selected
by the Borrower pursuant to this Agreement. Each Interest Period shall
end on the day which corresponds numerically to such date one, two, three or
six months thereafter, provided that if any Interest Period commences on
the last Business Day of a calendar month, or if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such
Interest Period shall end on the last Business Day of such next, second, third
or sixth succeeding month. If an Interest Period would otherwise end on a
day which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided that if said next succeeding Business
Day falls in a new calendar month, such Interest Period shall end on the
immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such Person;
any deposit accounts and certificate of deposit owned by such Person; and
structured notes, derivative financial instruments and other similar
instruments or contracts owned by such Person.
|
6 |
"JPMorgan" means JPMorgan Chase Bank, N.A.
and its successors.
"Lenders" means the lending institutions listed on the
signature pages of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the
Administrative Agent, the office, branch, subsidiary or Affiliate of such
Lender or the Administrative Agent specified in its Administrative
Questionnaire or otherwise selected by such Lender or the Administrative Agent
pursuant to Section 2.16.
"Letter of Credit" of a Person means a letter of credit or
similar instrument which is issued upon the application of such Person or upon
which such Person is an account party or for which such Person is in any way
liable.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including the interest of a vendor or lessor
under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loans" is defined in Section 2.1.
"Loan Documents" means this Agreement, the Fee Letter and any
Notes issued pursuant to Section 2.12.
"London Business Day" means a day (other than Saturday or
Sunday) on which banks generally are open in London, England for the conduct of
substantially all of their commercial lending activities and dealings are
carried on in the London interbank market.
"Material Adverse Effect" means a material adverse effect on (i) the business, Property, condition (financial or
otherwise), results of operations, or prospects of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform its
obligations under the Loan Documents, or (iii) the validity or enforceability
of any of the Loan Documents or the rights or remedies of the Administrative
Agent or the Lenders thereunder.
"Material Indebtedness" means Indebtedness (other than
Obligations) of the Borrower or any of its Subsidiaries, in an aggregate
principal amount exceeding $25,000,000 (or its equivalent in any other
currency).
"Material Subsidiary" of the Borrower means any Subsidiary (a)
whose gross revenues for the fiscal year in respect of which such statements
and related balance sheet were prepared (or the last full fiscal year in the
case of quarterly financial statements) exceeded 10% of the consolidated gross
revenue of the Borrower and all its Subsidiaries for such fiscal year or (b)
whose gross assets as at the end of such fiscal year were in excess of 10% of
the consolidated gross assets of the Borrower and all its Subsidiaries for such
fiscal year.
"Moody's" means Xxxxx'x Investors Service, Inc.
|
7 |
"Multiemployer Plan" means a Plan
maintained pursuant to a collective bargaining agreement or any other
arrangement to which the Borrower or any member of the Controlled Group is a
party to which more than one employer is obligated to make contributions.
"Non-U.S. Lender" is defined in Section 3.5(d).
"Note" means a promissory note issued at the request of a Lender
pursuant to Section 2.12(d), in substantially the form of Exhibit E
hereto, evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Loans made by such Lender.
"Obligations" means all unpaid principal of and accrued and
unpaid interest on the Loans, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower to the
Lenders or to any Lender, the Administrative Agent or any indemnified party
arising under the Loan Documents.
"OFAC" means the U.S. Department of the Treasury's Office of
Foreign Assets Control, and any successor thereto.
"Off-Balance Sheet Liability" of a Person means, without
duplication, (i) any repurchase obligation or
liability of such Person with respect to accounts or notes receivable sold by
such Person, (ii) any liability under any Sale and Leaseback Transaction which
is not a Capitalized Lease, (iii) any liability under any so-called
"synthetic lease" transaction entered into by such Person, or (iv)
any obligation arising with respect to any other transaction which is the
functional equivalent of or takes the place of borrowing but which does not
constitute a liability on the balance sheets of such Person, but excluding from
this clause (iv) all Operating Leases.
"Operating Lease" of a Person means any lease of Property
(other than a Capitalized Lease) by such Person as lessee, which has an
original term (including any required renewals and any renewals effective at
the option of the lessor) of one year or more.
"Other Taxes" is defined in Section 3.5(b).
"Outstanding Credit Exposure" means, as to any Lender at any
time, the aggregate principal amount of all Loans made by such Lender
outstanding at such time.
"Parent" means IDACORP, Inc., an Idaho corporation,
and its successors and assigns.
"Participants" is defined in Section 12.2(a).
"PATRIOT Act" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA
PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001)),
as amended from time to time, and any successor statute, and all rules and
regulations from time to time promulgated thereunder.
"Payment Date" means the last day of each March, June,
September and December.
"PBGC" means the Pension Benefit Guaranty Corporation,
or any successor thereto.
|
8 |
"Permitted Receivables Securitization"
means a limited recourse or non-recourse sale, assignment or contribution of
accounts receivable and related records, collateral and rights of the Borrower
and/or one or more of its Subsidiaries to one or more special purpose entities,
in connection with the issuance of obligations by any such special purpose
entity secured by such assets, the proceeds of the issuance of which
obligations shall be made available, directly or indirectly, to the Borrower
and/or the applicable Subsidiaries.
"Person" means any natural person, corporation, firm, joint
venture, partnership, limited liability company, association, enterprise, trust
or other entity or organization, or any government or political subdivision or
any agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered
by Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Code as to which the Borrower or any member of the Controlled Group
may have any liability.
"Prime Rate" means the per annum interest rate publicly announced
from time to time by JPMorgan, to be its prime rate in effect at its principal
office in New York City (which may not necessarily be its lowest or best
lending rate), as adjusted to conform to changes as of the opening of business
on the date any such change is publicly announced.
"Property" of a Person means any and all property, whether
real, personal, tangible, intangible, or mixed, of such Person, or other assets
owned, leased or operated by such Person.
"Pro Rata Share" means, with respect to a Lender, a portion
equal to a fraction the numerator of which is such Lender's Commitment and the
denominator of which is the Aggregate Commitment (or, if the Commitments have
been terminated, a portion equal to a fraction (i)
the numerator of which is equal to the principal amount of such Lender's Loans
and (ii) the denominator of which is equal to the aggregate principal amount of
all Loans.
"Purchasers" is defined in Section 12.3(a).
"Rate Management Obligations" of a Person means any and all
obligations of such Person, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions
therefor), under (i) any
and all Rate Management Transactions, and (ii) any and all cancellations, buy
backs, reversals, terminations or assignments of any Rate Management
Transactions.
"Rate Management Transaction" means any transaction (including
an agreement with respect thereto) now existing or hereafter entered into by
the Borrower or the Parent which is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
forward transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including any
option with respect to any of these transactions) or any combination thereof,
whether linked to one or more interest rates, foreign currencies, commodity
prices, equity prices or other financial measures.
|
9 |
"Register" is defined in Section 12.3(c).
"Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor
thereto or other regulation or official interpretation of said Board of
Governors relating to reserve requirements applicable to member banks of the
Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors relating
to the extension of credit by banks for the purpose of purchasing or carrying
margin stocks applicable to member banks of the Federal Reserve System.
"Reportable Event" means a reportable event as defined in
Section 4043 of ERISA and the regulations issued under such section, with
respect to a Plan, excluding, however, such events as to which the PBGC has by
regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within thirty (30) days of the occurrence of such event, provided
that a failure to meet the minimum funding standard of Section 412 of the
Code and of Section 302 of ERISA shall be a Reportable Event regardless of the
issuance of any such waiver of the notice requirement in accordance with either
Section 4043(a) of ERISA or Section 412(d) of the Code.
"Reports" is defined in Section 9.6.
"Required Lenders" means Lenders in the aggregate having at
least a majority of the Aggregate Commitment or, if the Aggregate Commitment
has been terminated, Lenders in the aggregate holding at least a majority of
the Aggregate Outstanding Credit Exposure.
"Risk-Based Capital Guidelines" is defined in Section 3.2.
"S&P" means Standard and Poor's Ratings Services, a
division of The McGraw Hill Companies, Inc.
"Sale and Leaseback Transaction" means any sale or other
transfer of Property by any Person with the intent to lease such Property as
lessee.
"Sanctioned Country" means a country subject to a sanctions
program identified on the list maintained by OFAC and available at
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxxxxxxxx/, or as otherwise
published from time to time.
"Sanctioned Person" means (i) a
Person named on the list of Specially Designated Nationals or Blocked Persons
maintained by OFAC available at xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxx/x00xxx.xxx,
or as otherwise published from time to time, or (ii) (A) an agency of
the government of a Sanctioned Country, (B) an organization controlled by
a Sanctioned Country, or (C) a Person resident in a Sanctioned Country, to
the extent subject to a sanctions program administered by OFAC.
|
10 |
"Single Employer Plan" means a Plan
maintained by the Borrower or any member of the Controlled Group for employees
of the Borrower or any member of the Controlled Group.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including
any marginal, special, emergency or supplemental reserves) expressed as a
decimal established by the Board of Governors of the Federal Reserve System to
which the Administrative Agent is subject for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Advances shall be deemed to
constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation.
The Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subsidiary" of a Person means (i)
any corporation more than 50% of the outstanding securities having ordinary
voting power of which shall at the time be owned or controlled, directly or
indirectly, by such Person or by one or more of its Subsidiaries or by such
Person and one or more of its Subsidiaries, or (ii) any partnership, limited
liability company, association, joint venture or similar business organization
more than 50% of the ownership interests having ordinary voting power of which
shall at the time be so owned or controlled. Unless otherwise expressly
provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of
the Borrower and its Subsidiaries, Property which (i)
represents more than 10% of the consolidated assets of the Borrower and its
Subsidiaries as would be shown in the consolidated financial statements of the
Borrower and its Subsidiaries as of the beginning of the twelve-month period
ending with the month in which such determination is made, or (ii) is
responsible for more than 10% of the consolidated net sales or of the
consolidated net income of the Borrower and its Subsidiaries as reflected in
the financial statements referred to in clause (i)
above.
"Taxes" means any and all present or future taxes, duties,
levies, imposts, deductions, charges or withholdings, and any and all
liabilities with respect to the foregoing, but excluding Excluded Taxes and
Other Taxes.
"Transferee" is defined in Section 12.4.
"Type" is defined in Section 2.3.
"Unfunded Liabilities" means the amount (if any) by which the
present value of all vested and unvested accrued benefits under all Single
Employer Plans exceeds the fair market value of all such Plan assets allocable
to such benefits, all determined as of the then most recent valuation date for
such Plans using PBGC actuarial assumptions for single employer plan
terminations.
"Unmatured Default" means an
event which but for the lapse of time or the giving of notice, or both, would
constitute a Default.
|
11 |
"Wholly-Owned Subsidiary" of a Person means
(i) any Subsidiary all of the outstanding voting
securities of which shall at the time be owned or controlled, directly or
indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such
Person, or by such Person and one or more Wholly-Owned Subsidiaries of such
Person, or (ii) any partnership, limited liability company, association, joint
venture or similar business organization 100% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
1.2.
Other Interpretive Provisions.
(a)
The meanings of defined terms are equally applicable to the singular and plural
forms of such terms.
(b)
Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(c)
The terms "including," "includes" and "include"
shall be deemed to be followed by the phrase "without limitation."
(d)
In the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including";
the words "to" and "until" each mean "to but
excluding", and the word "through" means "to and
including."
(e)
Unless otherwise expressly specified, all references herein to a particular
time shall mean New York, New York time.
(f)
Unless otherwise expressly provided herein, (i)
references to agreements (including this Agreement), other contractual
instruments and organizational documents shall be deemed to include all
subsequent amendments and other modifications thereto, but only to the extent
such amendments and other modifications are not prohibited by the terms of this
Agreement, and (ii) references to any statute or regulation are to be construed
as including all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such statute or regulation.
ARTICLE 2
THE CREDITS
2.1.
Commitments. Each Lender severally agrees, on the terms and conditions
set forth in this Agreement, to make
term loans to the Borrower (each such term loan, a "Loan" and
collectively, the "Loans") in a single draw on the Closing Date, in
Dollars, and in an amount equal to such Lender's Commitment. Each
Loan under this Section 2.1 shall consist of Loans made by each Lender ratably
in proportion to such Lender's respective Pro Rata Share of the Aggregate
Commitment. No Loan shall be reborrowed once
repaid.
2.2.
Required Payments; Termination.
|
12 |
(a)
Except to the extent due or paid sooner pursuant to the provisions of this
Agreement, the Borrower shall repay to the Lenders the aggregate outstanding
principal amount of each Loan on the Facility Termination Date.
(b)
Notwithstanding anything to the contrary herein, except to the extent due or
paid sooner pursuant to the provisions of this Agreement, the Aggregate Outstanding
Credit Exposure and all unpaid Obligations shall be paid in full by the
Borrower on the Facility Termination Date.
2.3.
Types of Advances; Minimum Amount of Each Advance. The Loans
may be comprised of Floating Rate Advances or Eurodollar Advances (each, a
"Type" of Advance), or a combination thereof, selected by the
Borrower in accordance with Sections 2.7 and 2.8. Each
Eurodollar Advance shall be in the amount of $5,000,000 or a higher integral
multiple of $100,000, and each Floating Rate Advance shall be in the amount of
$5,000,000 or a higher integral multiple of $100,000.
2.4.
Fees
(a)
The Borrower agrees to pay to the Administrative Agent for the account of each
Lender an upfront fee in an amount agreed to in the Fee Letter, payable on the
date of execution of this Agreement.
(b)
The Borrower shall pay to the Arranger and the Administrative Agent for their
own respective accounts fees in the amounts and at the times specified in the
Fee Letter.
The fees described in this Section 2.4 shall be fully earned when paid
and shall not be refundable for any reason whatsoever.
2.5.
Reduction or Termination of Aggregate Commitment. The
Commitments shall terminate upon the earlier of (a) the funding of the Loans to
the Borrower in the manner specified in Section 2.1 and (ii) 5:00 p.m.
on the Closing Date.
2.6.
Optional Principal Payments. The Borrower may from time to
time pay, without penalty or premium, all outstanding Floating Rate Advances
or, in an aggregate amount of $5,000,000 or a higher integral multiple of
$100,000, any portion of the outstanding Floating Rate Advances upon one (1)
Business Day's prior notice to the Administrative Agent. The Borrower may
from time to time pay, subject to the payment of any funding indemnification
amounts required by Section 3.4 but without penalty or premium, all
outstanding Eurodollar Advances or, in an aggregate amount of $5,000,000 or a
higher integral multiple of $100,000, any portion of the outstanding Eurodollar
Advances upon three (3) Business Days' prior notice to the Administrative
Agent.
2.7.
Requesting Loans. In order to obtain the Loans hereunder
(excluding, for the avoidance of doubt, conversions of outstanding Loans which
shall be made pursuant to Section 2.8), the Borrower shall give the
Administrative Agent irrevocable notice (the "Borrowing Notice")
not later than 11:00 a.m. at least one (1) Business Day before the Closing Date
to the extent such Loans will constitute a Floating Rate Advance, and one (1)
Business Day before the Closing Date to the extent such Loans will constitute a
Eurodollar Advance (provided, that any request for a Eurodollar Advance
shall be accompanied by a
|
13 |
written agreement to indemnify the Lenders for loss or
costs of the type described in Section 3.4 notwithstanding that this
Agreement may not yet be effective), specifying:
(i)
the date of such Advance, which shall be the Closing Date and a Business Day,
(ii)
the aggregate amount of such Advance,
(iii)
the Type of Advance selected, and
(iv)
in the case of a Eurodollar Advance, the Interest Period applicable thereto.
Not later than 1:00 p.m. on the Closing Date, each Lender shall make available
its Pro Rata Share of the Loans in funds immediately available to the
Administrative Agent at its address specified pursuant to Article 13.
The Administrative Agent will make the funds so received from the Lenders
available to the Borrower at the Administrative Agent's aforesaid address.
2.8. Conversion
and Continuation of Outstanding Advances. Floating Rate Advances
shall continue as Floating Rate Advances unless and until such Floating Rate
Advances are converted into Eurodollar Advances pursuant to this Section 2.8
or are repaid in accordance with Section 2.6. Each
Eurodollar Advance shall continue as a Eurodollar Advance until the end of the
then applicable Interest Period therefor, at which
time such Eurodollar Advance shall be automatically converted into a Floating
Rate Advance unless (x) such Eurodollar Advance is or was repaid in accordance
with Section 2.6 or (y) the Borrower shall have given the Administrative
Agent a Conversion/Continuation Notice (as defined below) requesting that, at
the end of such Interest Period, such Eurodollar Advance continue as a
Eurodollar Advance for the same or another Interest Period. Subject to Section
2.3, the Borrower may elect from time to time to convert all or any part of
a Floating Rate Advance into a Eurodollar Advance. The Borrower shall
give the Administrative Agent irrevocable notice (a "Conversion/Continuation
Notice") of each conversion of a Floating Rate Advance into a
Eurodollar Advance or continuation of a Eurodollar Advance not later than 11:00
a.m. at least three (3) Business Days prior to the date of the requested
conversion or continuation, specifying:
(i)
the requested date, which shall be a Business Day, of such conversion or
continuation,
(ii)
the aggregate amount and Type of the Advance which is to be converted or
continued, and
(iii)
the amount of such Advance, which is to be converted into or continued as a
Eurodollar Advance and the duration of the Interest Period applicable thereto.
2.9.
Changes in Interest Rate, etc.
(a)
Each Floating Rate Advance shall bear interest on the outstanding principal
amount thereof, for each day from the date such Floating Rate Advance is made
or is automatically converted from a Eurodollar Advance into a Floating Rate
Advance pursuant to Section 2.8, to the date it is paid or is
converted into a Eurodollar Advance pursuant to Section 2.8, at a
rate per annum equal to the Floating Rate for such day. Changes in the
rate of interest on that portion of any Loan maintained as a Floating Rate
Advance will take effect simultaneously with each change in the Alternate Base
Rate.
|
14 |
(b)
Each Eurodollar Advance shall bear interest on the outstanding principal amount
thereof from the first day of the Interest Period applicable thereto to (but
not including) the last day of such Interest Period at the interest rate
determined by the Administrative Agent as applicable to such Eurodollar Advance
based upon the Borrower's selections under Sections 2.7 and 2.8
and otherwise in accordance with the terms hereof. No Interest Period may
end after the Facility Termination Date.
2.10. Rates Applicable After
Default. Notwithstanding anything to the contrary contained in
Sections 2.7, 2.8 or 2.9, during the continuance of a
Default the Required Lenders may, at their option, by notice to the Borrower,
declare that no Advance may be made as, converted into or continued as a
Eurodollar Advance. During the continuance of a Default the Required
Lenders may, at their option, by notice to the Borrower, declare that (i) each Eurodollar Advance shall bear interest for the
remainder of the applicable Interest Period at the rate otherwise applicable to
such Interest Period plus 2% per annum and (ii) each Floating Rate Advance
shall bear interest at a rate per annum equal to the Alternate Base Rate
in effect from time to time plus 2% per annum; provided that during the
continuance of a Default under Sections 7(g) or 7(h), the
interest rates set forth in clauses (i) and (ii)
above shall be applicable to all Advances without any election or action on the
part of the Administrative Agent or any Lender.
2.11. Method
of Payment. All payments of the Obligations hereunder shall be
made, without setoff, deduction, or counterclaim, in immediately available
funds to the Administrative Agent at the Administrative Agent's address
specified pursuant to Article 13, or at any other Lending
Installation of the Administrative Agent specified in writing by the
Administrative Agent to the Borrower, by 12:00 noon (local time) on the date
when due and shall be applied ratably by the Administrative Agent among the
Lenders. Each payment delivered to the Administrative Agent for the
account of any Lender shall be delivered promptly by the Administrative Agent
to such Lender in the same type of funds that the Administrative Agent received
at its address specified pursuant to Article 13 or at any Lending
Installation specified in a notice received by the Administrative Agent from
such Lender. The Administrative Agent is hereby authorized to charge any
account of the Borrower maintained with JPMorgan for each payment of principal,
interest and fees as it becomes due hereunder.
2.12. Noteless Agreement; Evidence of Indebtedness.
(a)
Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(b)
The Administrative Agent shall also maintain the Register pursuant to Section
12.3(c) and subaccounts for each Lender in which (taken together) it will
record (a) the amount of each Loan made hereunder, the Type thereof and the
Interest Period (if any) with respect thereto, (b) the amount of any principal
or interest due and payable or to become due and payable from the Borrower to
each Lender hereunder, and (c) the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
15
(c)
The entries maintained in the accounts, Register and subaccounts maintained
pursuant to Sections 2.12(a) and (b) above shall be prima facie
evidence of the existence and amounts of the Obligations therein recorded; provided
that the failure of the Administrative Agent or any Lender to maintain such
accounts, such Register or such subaccount, as applicable, or any error therein
shall not in any manner affect the obligation of the Borrower to repay the
Obligations in accordance with their terms.
(d)
The Loans made by each Lender shall, if requested by the applicable Lender
(which request shall be made to the Administrative Agent), be evidenced by a
Note, appropriately completed and executed by the Borrower and payable to the
order of such Lender. Each Note shall be entitled to all of the benefits
of this Agreement and the other Loan Documents and shall be subject to the
provisions hereof and thereof.
2.13. Telephonic
Notices. The Borrower hereby authorizes the Lenders and the
Administrative Agent to extend, convert or continue Advances, effect selections
of Types of Advances and to transfer funds based on telephonic notices made by
any person or persons the Administrative Agent or any Lender in good faith
believes to be acting on behalf of the Borrower, it being understood that the
foregoing authorization is specifically intended to allow the Borrowing Notice
and Conversion/Continuation Notices to be given telephonically. The
Borrower agrees to deliver promptly to the Administrative Agent a written
confirmation, if such confirmation is requested by the Administrative Agent or
any Lender, of each telephonic notice signed by an Authorized Officer. If
the written confirmation differs in any material respect from the action taken
by the Administrative Agent and the Lenders, the records of the Administrative
Agent and the Lenders shall govern absent manifest error.
2.14.
Interest Payment Dates; Interest and Fee Basis.
(a)
Interest accrued on each Floating Rate Advance shall be payable on each Payment
Date, commencing with the first such date to occur after the date hereof, on
any date on which such Floating Rate Advance is prepaid, whether due to
acceleration or otherwise, and at the Facility Termination Date. Interest
accrued on that portion of the outstanding principal amount of any Floating
Rate Advance converted into a Eurodollar Advance on a day other than a Payment
Date shall be payable on the date of conversion.
(b)
Interest accrued on each Eurodollar Advance shall be payable on the last day of
its applicable Interest Period, on any date on which the Eurodollar Advance is
prepaid, whether by acceleration or otherwise, and at the Facility Termination
Date. Interest accrued on each Eurodollar Advance having an Interest
Period longer than three months shall also be payable on the last day of each
three-month interval during such Interest Period.
|
16 |
(c)
Interest on Floating Rate Advances bearing interest at the Prime Rate shall be
calculated for actual days elapsed on the basis of a 365, or when appropriate,
366 day year. All other interest and all fees shall be calculated for
actual days elapsed on the basis of a 360-day year. Interest shall be
payable for the day an Advance is made but not for the day of any payment on
the amount paid if payment is received prior to 12:00 noon (local time) at the
place of payment. If any payment of principal of or interest on an
Advance shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day (except for interest payments
in respect of Eurodollar Advances whose Interest Period ends on a day which is
not a Business Day, and the next succeeding Business Day falls in a new
calendar month, in which case interest accrued on such Eurodollar Advance shall
be payable on the immediately preceding Business Day) and, in the case of a
principal payment, such extension of time shall be included in computing
interest in connection with such payment.
2.15. Notification
of Advances, Interest Rates, Prepayments and Commitment Reductions.
Promptly after receipt thereof, the Administrative Agent will notify each
Lender of the contents of the Borrowing Notice and each Conversion/Continuation
Notice and repayment notice received by it hereunder. The Administrative
Agent will notify each Lender of the interest rate applicable to each
Eurodollar Advance promptly upon determination of such interest rate and will
give each Lender prompt notice of each change in the Alternate Base Rate.
2.16. Lending
Installations. Each Lender may book its Loans at any Lending
Installation selected by such Lender and may change its Lending Installation
from time to time. All terms of this Agreement shall apply to any such
Lending Installation and the Loans and any Notes issued hereunder shall be
deemed held by each Lender for the benefit of any such Lending
Installation. Each Lender may, by written notice to the Administrative
Agent and the Borrower in accordance with Article 13, designate
replacement or additional Lending Installations through which Loans will be
made by it and for whose account Loan payments are to be made.
2.17. Non-Receipt
of Funds by the Administrative Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Administrative Agent prior to the date
on which it is scheduled to make payment to the Administrative Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii)
in the case of the Borrower, a payment of principal, interest or fees to the
Administrative Agent for the account of the Lenders, that it does not intend to
make such payment, the Administrative Agent may assume that such payment has
been made. The Administrative Agent may, but shall not be obligated to,
make the amount of such payment available to the intended recipient in reliance
upon such assumption. If such Lender or the Borrower, as the case may be,
has not in fact made such payment to the Administrative Agent, the recipient of
such payment shall, on demand by the Administrative Agent, repay to the
Administrative Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Administrative Agent until the date the
Administrative Agent recovers such amount at a rate per annum equal to (x) in
the case of payment by a Lender, the Federal Funds Effective Rate for such day
for the first three (3) days and, thereafter, the interest rate applicable to
the relevant Loan or (y) in the case of payment by the Borrower, the interest
rate applicable to the relevant Loan.
2.18.
[Reserved.]
|
17 |
2.19. Replacement of Lender. If the Borrower is required pursuant to Sections 3.1, 3.2 or 3.5 to make any additional payment to any Lender or if any Lender's obligation to make or continue, or to convert Floating Rate Advances into, Eurodollar Advances shall be suspended pursuant to Section 3.3 (any Lender so affected an "Affected Lender"), the Borrower may elect, if such amounts continue to be charged or such suspension is still effective, to replace such Affected Lender as a Lender party to this Agreement, provided that no Default or Unmatured Default shall have occurred and be continuing at the time of such replacement, and provided further that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower and the Administrative Agent shall agree, as of such date, to purchase for cash the Advances and other Obligations (excluding the amounts payable by the Borrower pursuant to clause (ii) of this proviso) due to the Affected Lender pursuant to an assignment substantially in the form of Exhibit C and to become a Lender for all purposes under this Agreement and to assume all obligations of the Affected Lender to be terminated as of such date and to comply with the requirements of Section 12.3 applicable to assignments, and (ii) the Borrower shall pay to such Affected Lender in same day funds on the day of such replacement (A) all interest, fees and other amounts then accrued but unpaid to such Affected Lender by the Borrower hereunder to and including the date of termination, including payments due to such Affected Lender under Sections 3.1, 3.2 or 3.5, and (B) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 3.4 had the Loans of such Affected Lender been prepaid on such date rather than sold to the replacement Lender.
ARTICLE 3
YIELD PROTECTION; TAXES
3.1.
Yield Protection. If, on or after the Closing Date, the
adoption of any law or any governmental or quasi governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Lender or applicable
Lending Installation with any request or directive (whether or not having the
force of law) of any such authority, central bank or comparable agency:
(i)
subjects any Lender or any applicable Lending Installation to any Taxes, or changes
the basis of taxation of payments (other than with respect to Excluded Taxes or
to any increased costs from taxes which will be governed exclusively by Section
3.5) to any Lender in respect of its Eurodollar Advances, or
(ii)
imposes or increases or deems applicable any reserve, assessment, insurance
charge, special deposit or similar requirement against assets of, deposits with
or for the account of, or credit extended by, any Lender or any applicable
Lending Installation (other than reserves and assessments taken into account in
determining the interest rate applicable to Eurodollar Advances), or
(iii)
imposes any other condition the result of which is to increase the cost to any
Lender (or any applicable Lending Installation) of making, funding or
maintaining its Eurodollar Advances, or reduces any amount receivable by any
Lender (or any applicable Lending Installation) in connection with its
Eurodollar Advances, or requires any Lender (or any applicable Lending Installation)
to make any payment calculated by reference to the amount of Eurodollar
Advances held or interest received by it, by an amount deemed material by such
Lender,
18
and the result of any of the
foregoing is to increase the cost to such Lender or applicable Lending
Installation of making or maintaining its Eurodollar Advances, or to reduce the
return received by such Lender or applicable Lending Installation in connection
with such Eurodollar Advances, then, within fifteen (15) days of demand by such
Lender, the Borrower shall pay such Lender such additional amount or amounts as
will compensate such Lender for such increased cost or reduction in amount
received.
3.2.
Changes in Capital Adequacy Regulations. If a Lender
determines the amount of capital required or expected to be maintained by such
Lender, any Lending Installation of such Lender, or any corporation controlling
such Lender is increased as a result of a Change, then, within fifteen (15)
days of demand by such Lender, the Borrower shall pay such Lender the amount
necessary to compensate for any shortfall in the rate of return on the portion
of such increased capital which such Lender determines is attributable to this
Agreement, its Outstanding Credit Exposure or its Commitment to make Loans
hereunder (after taking into account such Lender's policies as to capital
adequacy). "Change" means (i)
any change after the Closing Date in the Risk-Based Capital Guidelines, or (ii)
any adoption of or change in any other law, governmental or quasi governmental
rule, regulation, policy, guideline, interpretation, or directive (whether or
not having the force of law) after the Closing Date which affects the amount of
capital required or expected to be maintained by any Lender or any Lending Installation
or any corporation controlling any Lender. "Risk-Based Capital
Guidelines" means (i) the risk based capital
guidelines in effect in the United States on the Closing Date, including
transition rules, and (ii) the corresponding capital regulations promulgated by
regulatory authorities outside the United States implementing the July 1988
report of the Basle Committee on Banking Regulation and Supervisory Practices
Entitled "International Convergence of Capital Measurements and Capital
Standards," including transition rules, and any amendments to such
regulations adopted prior to the Closing Date.
3.3.
Availability of Types of Advances. If any Lender determines
that maintenance of its Eurodollar Advances at a suitable Lending Installation
would violate any applicable law, rule, regulation, or directive, whether or
not having the force of law, or if the Required Lenders determine that (i) deposits of a type and maturity appropriate to match
fund Eurodollar Advances are not available or (ii) the interest rate applicable
to Eurodollar Advances does not accurately reflect the cost of making or
maintaining Eurodollar Advances, then the Administrative Agent shall suspend
the availability of Eurodollar Advances and require any affected Eurodollar
Advances to be repaid or converted to Floating Rate Advances, subject to the
payment of any funding indemnification amounts required by Section 3.4.
3.4.
Funding Indemnification. If any payment of a Eurodollar
Advance occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment or otherwise, or a
Eurodollar Advance is not made on the date specified by the Borrower for any
reason other than default by the Lenders, the Borrower will indemnify each
Lender for any loss or cost incurred by it resulting therefrom,
including any loss or cost in liquidating or employing deposits acquired to
fund or maintain such Eurodollar Advance.
|
19 |
3.5.
Taxes.
(a)
All payments by the Borrower to or for the account of any Lender or the
Administrative Agent hereunder or under any Note shall be made free and clear
of and without deduction for any and all Taxes. If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Administrative Agent, (a) the sum payable shall
be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section 3.5)
such Lender or the Administrative Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made, (b)
the Borrower shall make such deductions, (c) the Borrower shall pay the full amount
deducted to the relevant authority in accordance with applicable law and (d)
the Borrower shall furnish to the Administrative Agent the original copy of a
receipt evidencing payment thereof within thirty (30) days after such payment
is made.
(b)
In addition, the Borrower hereby agrees to pay any present or future stamp or
documentary taxes and any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under any Note or from
the execution, delivery or enforcement of, or otherwise with respect to, this
Agreement or any Note ("Other Taxes").
(c)
The Borrower hereby agrees to indemnify the Administrative Agent and each
Lender for the full amount of Taxes or Other Taxes (including any Taxes or
Other Taxes imposed on amounts payable under this Section 3.5) paid
by the Administrative Agent or such Lender and any liability (including
penalties, interest and expenses, provided that the Administrative Agent
and the Lenders shall use best efforts to avoid incurrence of the same) arising
therefrom or with respect thereto. Payments due
under this indemnification shall be made within thirty (30) days of the date
the Administrative Agent or such Lender makes demand therefor
pursuant to Section 3.6.
(d)
Each Lender (or Transferee) that is organized under the laws of a jurisdiction
other than the United States, any State thereof or the District of Columbia (a
"Non−U.S. Lender") that is
entitled to an exemption from or reduction of withholding tax under the law of
the jurisdiction in which the Borrower is resident for tax purposes, or any
treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with
a copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower or the Administrative
Agent, such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without withholding or
at a reduced rate of withholding. In addition, any Lender, if requested by the
Borrower or the Administrative Agent, shall deliver such other documentation
prescribed by applicable law or reasonably requested by the Borrower or the
Administrative Agent as will enable the Borrower or the Administrative Agent to
determine whether or not such Lender is subject to backup withholding or
information reporting requirements.
|
20 |
Without limiting the generality
of the foregoing, in the event that the Borrower is resident for tax purposes
in the United States of America, any Non-U.S. Lender shall deliver to the
Borrower and the Administrative Agent (in such number of copies as shall be
requested by the recipient) on or prior to the date on which such Non−U.S. Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the request of the Borrower or the
Administrative Agent, but only if such Non−U.S.
Lender is legally entitled to do so), whichever of the following is applicable:
(i)
duly completed copies of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States of America
is a party,
(ii)
duly completed copies of Internal Revenue Service Form W-8ECI,
(iii)
duly completed copies of Internal Revenue Service Form W-8IMY,
(iv)
with respect to clauses (i) - (iii), any subsequent
versions thereof or successors thereto, in each case claiming complete
exemption from, or reduced rate of, U.S. Federal withholding tax and payments
of interest hereunder,
(v)
in the case of a Non−U.S. Lender claiming the
benefits of the exemption for portfolio interest under section 871(h) or 881(c)
of the Code, (x) a certificate to the effect that such Non−U.S.
Lender is not (A) a "bank" for purposes of section 881(c) of the
Code, (B) a "10-percent shareholder" (within the meaning of section
871(h)(3)(B) of the Code) of the Borrower (or any Affiliate thereof) and (C) a
"controlled foreign corporation" related to the Borrower or any
Affiliate thereof (within the meaning of section 864(d)(4) of the Code), and
such Non-U.S. Lender agrees that it shall promptly notify the Borrower in the
event any of the above representations are no longer accurate and (y) duly
completed copies of Internal Revenue Service Form W-8BEN, or
(vi)
any other form prescribed by applicable law as a basis for claiming exemption
from or a reduction in United States Federal withholding tax duly completed
together with such supplementary documentation as may be prescribed by
applicable law to permit the Borrower to determine the withholding or deduction
required to be made.
(e)
For any period during which a Non-U.S. Lender has failed to provide the
Borrower with an appropriate form pursuant to Section 3.5(d) (unless
such failure is due to a change in treaty, law or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was required to be
provided) or Section 3.5(f), such Lender shall not be entitled to
indemnification under this Section 3.5 with respect to Taxes; provided
that, should a Non-U.S. Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because of its failure
to deliver a form required under Section 3.5(d), the Borrower shall take
such commercially-reasonable steps (at the cost of the Non-U.S. Lender) as such
Non-U.S. Lender shall reasonably request to assist such Non-U.S. Lender to
recover such Taxes.
21
(f)
Any Lender that is entitled to an exemption from or reduction of withholding
tax with respect to payments under this Agreement or any Note pursuant to the
law of any relevant jurisdiction or any treaty shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed
by applicable law as will permit such payments to be made without withholding
or at a reduced rate.
(g)
If the U.S. Internal Revenue Service or any other governmental authority of the
United States or any other country or any political subdivision thereof asserts
a claim that the Administrative Agent did not properly withhold tax from
amounts paid to or for the account of any Lender (because the appropriate form
was not delivered or properly completed, because such Lender failed to notify
the Administrative Agent of a change in circumstances which rendered its
exemption from withholding ineffective, or for any other reason), such Lender
shall indemnify the Administrative Agent fully for all amounts paid, directly
or indirectly, by the Administrative Agent as tax, withholding therefor, or otherwise, including penalties and
interest, and including taxes imposed by any jurisdiction on amounts payable to
the Administrative Agent under this subsection, together with all costs and
expenses related thereto (including attorneys fees and time charges of
attorneys for the Administrative Agent, which attorneys may be employees of the
Administrative Agent) and the Borrower shall have no liability pursuant to this
Agreement to the Administrative Agent with respect to such amounts. The
obligations of the Lenders under this Section 3.5(g) shall survive
the payment of the Obligations and termination of this Agreement.
(h)
Any Lender or Administrative Agent claiming any indemnity payment or additional
payment amounts payable pursuant to this Section 3.5 shall use
reasonable efforts (consistent with legal and regulatory restrictions and at
the cost of the Borrower) to file any certificate or document reasonably
requested in writing by the Borrower or to change the jurisdiction of its
applicable lending office if the making of such a filing or change (1) would
avoid the need for or reduce the amount of any such indemnity payment or
additional amount that may thereafter accrue, (2) would not require such Lender
or the Agent to disclose any information such Lender or the Administrative
Agent deems confidential and (3) would not subject such Lender or the
Administrative Agent to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender or the Administrative Agent.
(i)
Each Lender will promptly notify the Borrower and the Administrative Agent of
any event of which it has knowledge, occurring after the date of this
Agreement, which will entitle such Lender to compensation pursuant to this
Section 3.5; provided that (i) if any
Lender fails to give such notice within 180 days after it obtains actual
knowledge of such event (or, in the exercise of ordinary due diligence, should
have obtained actual knowledge thereof), such Lender shall only be entitled to
payments under this Section 3.5 for costs incurred from and after
the date 180 days prior to the date that such Lender does give such notice.
3.6. Alternate
Lending Installation; Lender Statements; Survival of Indemnity. To
the extent reasonably possible, each Lender shall designate an alternate
Lending Installation with respect to its Eurodollar Advances to reduce any
liability of the Borrower to such Lender under Sections 3.1, 3.2
and 3.5 or to avoid the unavailability of Eurodollar Advances under Section
3.3, so long as such designation is not, in the judgment of such Lender,
disadvantageous to such Lender. Each Lender shall deliver a written
statement of such Lender to the Borrower (with a copy to the Administrative
Agent) as to the amount due, if any, under Sections 3.1, 3.2, 3.4
or 3.5.
22
Such written statement shall set forth in reasonable detail the calculations
upon which such Lender determined such amount and shall be final, conclusive
and binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a
Eurodollar Advance shall be calculated as though each Lender funded its Eurodollar
Advance through the purchase of a deposit of the type and maturity
corresponding to the deposit used as a reference in determining the Eurodollar
Rate applicable to such Loan, whether in fact that is the case or not. Unless otherwise provided herein, the amount specified in the
written statement of any Lender shall be payable on demand after receipt by the
Borrower of such written statement. The obligations of the
Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive
payment of the Obligations and termination of this Agreement.
ARTICLE 4
CONDITIONS PRECEDENT
4.1.
Loans; Closing Date. The Lenders shall not be required to make
the Loans hereunder as described in Section 2.1, and the Closing Date
shall not occur, unless:
(a)
The Borrower has furnished to the Administrative Agent sufficient copies for
the Lenders of:
(i)
Copies of the articles or certificate of incorporation of the Borrower,
together with all amendments, and a certificate of good standing, each
certified by the appropriate governmental officer in its jurisdiction of
incorporation.
(ii)
Copies, certified by the Secretary or Assistant Secretary of the Borrower, of
its bylaws and of its Board of Directors' resolutions and of resolutions or
actions of any other body authorizing the execution of the Loan Documents.
(iii)
An incumbency certificate, executed by the Secretary or Assistant Secretary of
the Borrower, which shall identify by name and title and bear the signatures of
the Authorized Officers and any other officers of the Borrower authorized to
sign the Loan Documents, upon which certificate the Administrative Agent and
the Lenders shall be entitled to rely until informed of any change in writing by
the Borrower.
(iv)
A certificate, signed by an Authorized Officer, certifying the
satisfaction of the condition in Section 4.1(c) below.
(v)
One or more written legal opinions of the Borrower's counsel, addressed to the
Administrative Agent and the Lenders, dated as of the Closing Date, in form and
substance reasonably acceptable to the Administrative Agent and attached hereto
as Exhibit A.
(vi)
Signature pages or counterparts to this Agreement and the Fee Letter.
(vii)
Any Notes requested by a Lender pursuant to Section 2.12 payable to
the order of each such requesting Lender.
|
23 |
(viii)
Written money transfer instructions, in substantially the form of Exhibit D,
addressed to the Administrative Agent and signed by an Authorized Officer,
together with such other related money transfer authorizations as the
Administrative Agent may have reasonably requested.
(ix)
Such other documents as any Lender or its counsel may have reasonably
requested.
(b)
The Lenders and the Administrative Agent shall have received all fees required
to be paid, and all expenses for which invoices have been presented, on or
before the Closing Date.
(c)
No Default or Unmatured Default exists on or as of
the Closing Date.
(d)
The representations and warranties contained in Article 5 shall be true
and correct on and as of the Closing Date except to the extent any such
representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty shall have been true and correct on
and as of such earlier date.
(e)
All legal matters incident to the making of such Loans shall be satisfactory to
the Lenders and their counsel.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1.
Existence and
Standing. Each of the Borrower and its Subsidiaries is
a corporation, partnership (in the case of Subsidiaries only) or limited
liability company duly and properly incorporated or organized, as the case may
be, validly existing and (to the extent such concept applies to such entity) in
good standing under the laws of its jurisdiction of incorporation or organization
and has all requisite authority to conduct its business in each jurisdiction in
which its business is conducted, except to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect.
5.2.
Authorization and Validity. The Borrower has the power and
authority and legal right to execute and deliver the Loan Documents and to
perform its obligations thereunder. The execution and delivery by the
Borrower of the Loan Documents and the performance of its obligations
thereunder have been duly authorized by proper corporate proceedings, and the
Loan Documents constitute legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally.
|
24 |
5.3.
No Conflict; Government Consent. Neither the execution and delivery
by the Borrower of the Loan Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate,
except to the extent that such violation, alone or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, (i)
any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Borrower or any of its Subsidiaries or (ii) the Borrower's or
any Subsidiary's articles or certificate of incorporation, partnership
agreement, certificate of partnership, articles or certificate of organization,
bylaws, or operating or other management agreement, as the case may be, or
(iii) the provisions of any indenture, instrument or agreement to which the Borrower
or any of its Subsidiaries is a party or is subject, or by which it, or its
Property, is bound, or conflict with or constitute a default thereunder, or
result in, or require, the creation or imposition of any Lien in, of or on the
Property of the Borrower or a Subsidiary pursuant to the terms of any such
indenture, instrument or agreement. No order, consent, adjudication,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, or other action in respect of any
governmental or public body or authority, or any subdivision thereof, which has
not been obtained by the Borrower or any of its Subsidiaries, is required to be
obtained by the Borrower or any of its Subsidiaries in connection with the execution
and delivery of the Loan Documents, the borrowings under this Agreement, the
payment and performance by the Borrower of the Obligations or the legality,
validity, binding effect or enforceability of any of the Loan Documents.
5.4.
Financial Statements. The December 31, 2007 consolidated
financial statements of the Borrower and its Subsidiaries heretofore delivered
to the Lenders were prepared in accordance with the Agreement Accounting
Principles in effect on the date such statements were prepared and fairly
present the consolidated financial condition and operations of the Borrower and
its Subsidiaries at such date and the consolidated results of their operations
for the period then ended.
5.5.
Material Adverse Change. Since December 31, 2007, there has
been no change in the business, Property, condition (financial or otherwise) or
results of operations of the Borrower and its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect.
5.6.
Taxes. The Borrower and its Subsidiaries have filed all
material United States federal tax returns and all other tax returns which are
required to be filed and have paid all taxes due pursuant to said returns or
pursuant to any assessment received by the Borrower or any of its Subsidiaries,
except such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided in accordance with Agreement Accounting
Principles. No tax liens have been filed and no claims are being asserted
with respect to any such taxes claimed to be due and payable that would, if
adversely determined, have a Material Adverse Effect. The charges,
accruals and reserves for taxes on the books of the Borrower and its
Subsidiaries (to the extent in excess of $5,000,000) are adequate under
Agreement Accounting Principles. Notwithstanding any provision in this
Agreement to the contrary, the only representations and warranties made by the
Borrower with respect to matters relating to taxes shall be the representations
and warranties set forth in this Section 5.6, and this Agreement shall
not be interpreted in any manner that is contrary hereto.
25
5.7.
Litigation and Contingent Obligations. Except as set forth in the
most recent consolidated financial statements provided to the Administrative
Agent pursuant to Section 5.4 or Section 6.1, respectively,
there is no litigation, arbitration, governmental investigation, proceeding or
inquiry pending or, to the knowledge of any of their officers, threatened
against or affecting the Borrower or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect or which seeks to
prevent, enjoin or delay the making of the Loans. Other than any
liability incident to any litigation, arbitration or proceeding, which, if
decided adversely, would not reasonably be expected to have a Material Adverse
Effect, the Borrower has no material contingent liabilities or obligations not
provided for or disclosed in the most recent consolidated financial statements
provided to the Administrative Agent pursuant to Section 5.4 or Section
6.1, respectively.
5.8.
Subsidiaries. Schedule 5.8 contains an accurate
list of all Subsidiaries of the Borrower as of the Closing Date, setting forth
their respective jurisdictions of organization and the percentage of their
respective capital stock or other ownership interests owned by the Borrower or
other Subsidiaries. All of the issued and outstanding shares of capital
stock or other ownership interests of such Subsidiaries have been (to the
extent such concepts are relevant with respect to such ownership interests)
duly authorized and issued and are fully paid and nonassessable.
5.9.
ERISA. The Unfunded Liabilities of all Single Employer Plans
do not in the aggregate exceed $75,000,000. Neither the Borrower nor any
other member of the Controlled Group has incurred, or is reasonably expected to
incur, any withdrawal liability to Multiemployer Plans in excess of $25,000,000
in the aggregate. Each Plan complies in all material respects with all
applicable requirements of law and regulations, no Reportable Event has
occurred with respect to any Plan, neither the Borrower nor any other member of
the Controlled Group has withdrawn from any Plan or initiated steps to do so,
and no steps have been taken to reorganize or terminate any Plan.
5.10. Accuracy
of Information. No information, exhibit or report furnished by
the Borrower or any of its Subsidiaries to the Administrative Agent, the
Arranger or to any Lender in connection with the negotiation of, or compliance
with, the Loan Documents contained any material misstatement of fact or omitted
to state a material fact or any fact necessary to make the statements contained
therein not misleading.
5.11. Regulation
U. Margin stock (as defined in Regulation U) constitutes less
than 25% of the value of those assets of the Borrower and its Subsidiaries
which are subject to any limitation on sale, pledge, or other restriction hereunder.
5.12. Material Agreements.
Except as set forth in Schedule 5.12, neither the Borrower nor any
Subsidiary is a party to any agreement or instrument or subject to any charter
or other corporate restriction (a) which either prohibits or restricts the
ability of any Subsidiary of Borrower to declare or pay dividends to the
Borrower, or (b) which could reasonably be expected to have a Material Adverse
Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement to which it
is a party, which default could reasonably be expected to have a Material
Adverse Effect or (ii) any agreement or instrument evidencing or governing Material
Indebtedness, which default could reasonably be expected to have a Material
Adverse Effect.
26
5.13. Compliance
With Laws. The Borrower and
its Subsidiaries have complied with all applicable statutes, rules,
regulations, orders and restrictions of any domestic or foreign government or
any instrumentality or agency thereof having jurisdiction over the conduct of
their respective businesses or the ownership of their respective Property
except for any failure to comply with any of the foregoing which could not
reasonably be expected to have a Material Adverse Effect.
5.14. Ownership
of Properties. Except as set forth on Schedule 5.14, as of
the Closing Date, the Borrower and its Subsidiaries will have good title, free
of all Liens other than those permitted by Section 6.11, to all of the
Property and assets reflected in the Borrower's most recent consolidated
financial statements provided to the Administrative Agent as owned by the
Borrower and its Subsidiaries.
5.15. Plan
Assets; Prohibited Transactions. The Borrower is not an entity
deemed to hold "plan assets" within the meaning of 29 C.F.R.
§ 2510.3-101 of an employee benefit plan (as defined in Section 3(3)
of ERISA) which is subject to Title I of ERISA or any plan (within the meaning
of Section 4975 of the Code), and neither the execution of this Agreement nor
the making of the Loans hereunder gives rise to a prohibited transaction within
the meaning of Section 406 of ERISA or Section 4975 of the Code.
5.16. Environmental
Matters. In the ordinary course of its business, the Borrower
considers the effect of Environmental Laws on the business of the Borrower and
its Subsidiaries, in the course of which it identifies and evaluates potential
risks and liabilities accruing to the Borrower due to Environmental Laws.
On the basis of this consideration, the Borrower has concluded that the
potential risks and liabilities accruing to the Borrower due to Environmental
Laws could not reasonably be expected to have a Material Adverse Effect.
Neither the Borrower nor any Subsidiary has received any notice to the effect
that its operations are not in material compliance with any of the requirements
of applicable Environmental Laws or are the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic or hazardous waste or substance into the environment,
which noncompliance or remedial action could reasonably be expected to have a
Material Adverse Effect.
5.17. Investment
Company Act. The Borrower is not an "investment
company" or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940.
5.18. OFAC;
PATRIOT Act.
(a)
Neither the Borrower or any of its Subsidiaries is a
Sanctioned Person or does business in a Sanctioned Country or with a Sanctioned
Person in violation of the economic sanctions of the United States administered
by OFAC.
(b)
Each of the Borrower and its Subsidiaries is in compliance in all material
respects with the PATRIOT Act. No part of the proceeds of the Loans
hereunder will be used, directly or indirectly, for any payments to any
governmental official or employee, political party, official of a political
party, candidate for political office, or anyone else acting in an official
capacity, in order to obtain, retain or direct business or obtain any improper
advantage, in violation of the United States Foreign Corrupt Practices Act of
1977, as amended.
27
ARTICLE 6
COVENANTS
During the term of this Agreement, unless the Required
Lenders shall otherwise consent in writing:
6.1.
Financial
Reporting. The Borrower will maintain, for itself and
each Subsidiary, a system of accounting established and administered in
accordance with the Agreement Accounting Principles, and furnish to the
Administrative Agent in sufficient copies for each of the Lenders:
(i)
Within one hundred twenty (120) days after the close of each of its fiscal
years (or, if earlier, within thirty (30) days after the Borrower is required
to file its Annual Report on Form 10-K with the Securities and Exchange
Commission for such fiscal year), an unqualified (except for qualifications
relating to changes in Agreement Accounting Principles or practices reflecting
changes in Agreement Accounting Principles and required or approved by the
Borrower's independent registered public accountants) audit report certified by
independent registered public accountants reasonably acceptable to the Lenders,
prepared in accordance with the Agreement Accounting Principles on a
consolidated and consolidating basis (consolidating statements need not be
certified by such accountants) for itself and its Subsidiaries, including
balance sheets as of the end of such period, related profit and loss and
reconciliation of surplus statements, and a statement of cash flows.
Delivery by the Borrower to the Administrative Agent of copies of the
Borrower's Annual Report on Form 10-K filed with the Securities and Exchange
Commission for any year shall satisfy the Borrower's obligation under this clause
(i) with respect to such year.
(ii)
Within sixty (60) days after the close of the first three quarterly periods of
each of its fiscal years (or, if earlier, within fifteen (15) days after the
Borrower is required to file its Quarterly Report on Form 10-Q for with the
Securities and Exchange Commission for such period), consolidated and
consolidating unaudited balance sheets as at the close of each the first three
quarterly periods of each of its fiscal years, for itself and its Subsidiaries
and consolidated and consolidating profit and loss and reconciliation of
surplus statements and a statement of cash flows for the period from the
beginning of such fiscal year to the end of such quarter, all certified by an
Authorized Officer. Delivery by the Borrower to the Administrative Agent
of copies of the Borrower's Quarterly Report on Form 10-Q filed with the
Securities and Exchange Commission for any quarter shall satisfy the Borrower's
obligation under this clause (ii) with respect to such quarter.
(iii)
Together with the financial statements required under Sections 6.1(i) and (ii), (A) a compliance certificate in substantially
the form of Exhibit B signed by an Authorized Officer showing the
calculations necessary to determine compliance with this Agreement and stating
that no Default or Unmatured Default exists, or if
any Default or Unmatured Default exists, stating the
nature and status thereof and (B) a calculation of the Indebtedness secured by
Liens permitted under Section 6.11(xiii) in such form as is reasonably
satisfactory to the Administrative Agent.
28
(iv)
As soon as possible and in any event within ten (10) days after the Borrower
knows that any Reportable Event has occurred with respect to any Plan, a
statement, signed by an Authorized Officer, describing said Reportable Event
and the action which the Borrower proposes to take with respect thereto.
(v)
As soon as possible and in any event within ten (10) days after receipt by the
Borrower, a copy of (a) any notice or claim to the effect that the Borrower or
any of its Subsidiaries is or may be liable to any Person as a result of the
release by the Borrower, any of its Subsidiaries, or any other Person of any
toxic or hazardous waste or substance into the environment, and (b) any notice
alleging any violation of any federal, state or local environmental, health or
safety law or regulation by the Borrower or any of its Subsidiaries, which, in
either case, could reasonably be expected to have a Material Adverse Effect.
(vi)
Promptly upon the furnishing thereof to the shareholders of the Borrower
or the Parent, copies of all financial statements and reports so furnished.
(vii)
Promptly upon the filing thereof, copies of all registration statements and
annual, quarterly, monthly or other regular reports which the Borrower or any
of its Subsidiaries files with the Securities and Exchange Commission.
(viii) Such other
information (including nonfinancial information) as the Administrative Agent or
any Lender may from time to time reasonably request.
6.2.
Use of Proceeds. The Borrower will, and will cause each
Subsidiary to, use the proceeds of the Loans solely (a) to purchase (i) the $116,300,000 Sweetwater County, Wyoming Pollution
Control Revenue Refunding Bonds (Idaho Power Company Project) Series 2006 and
(ii) the $49,800,000 Humboldt County, Nevada Pollution Control Revenue
Refunding Bonds (Idaho Power Company Project) Series 2003 (collectively, the
"Bonds"), (b) for the payment of interest, fees and expenses
incurred in connection with the Bonds and (c) for the payment of interest, fees
and expenses incurred in connection with this Agreement.
6.3. Notice
of Default, etc. The Borrower will, and will cause each Subsidiary
to, give prompt notice in writing to the Lenders of the occurrence of (i) any Default or Unmatured
Default and (ii) the commencement of or any ruling in any litigation, or any
other development, financial or otherwise, which could reasonably be expected
to have a Material Adverse Effect.
6.4.
Conduct of Business. The Borrower will, and will cause each
Material Subsidiary to, carry on and conduct its business in substantially the
same manner and in substantially the same fields of enterprise as it is
presently conducted and do all things necessary to remain duly incorporated or
organized, validly existing and (to the extent such concept applies to such
entity) in good standing as a domestic corporation, partnership or limited
liability company in its jurisdiction of incorporation or organization, as the
case may be, and maintain all requisite authority to conduct its business in
each jurisdiction in which its business is conducted, except where the failure
to do so could not reasonably be expected to have a Material Adverse Effect.
|
29 |
6.5.
Taxes. The Borrower will, and will cause each Subsidiary to,
timely file complete and correct United States federal and applicable foreign,
state and local tax returns required by law and pay when due all taxes,
assessments and governmental charges and levies upon it or its income, profits
or Property, except those which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves have been
set aside in accordance with Agreement Accounting Principles.
6.6.
Insurance. The Borrower will, and will cause each Subsidiary
to, maintain with financially sound and reputable insurance companies insurance
on all their Property in such amounts and covering such risks as is consistent
with sound business practice, and the Borrower will furnish to any Lender upon
request full information as to the insurance carried.
6.7.
Compliance with Laws. The Borrower will, and will cause each
Subsidiary to, comply in all material respects with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to which
it may be subject, including all Environmental Laws.
6.8.
Maintenance of Properties. The Borrower will, and will cause
each Subsidiary to, do all things necessary to maintain, preserve, protect and
keep its Property in good repair, working order and condition, and make all
necessary and proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted at all times.
6.9.
Inspection. The Borrower will, and will cause each Subsidiary
to, permit the Administrative Agent and the Lenders, by their respective
representatives and agents, to inspect any of the Property, books and financial
records of the Borrower and each Subsidiary, to examine and make copies of the
books of accounts and other financial records of the Borrower and each
Subsidiary, and to discuss the affairs, finances and accounts of the Borrower
and each Subsidiary with, and to be advised as to the same by, their respective
officers at such reasonable times and intervals as the Administrative Agent or
any Lender may designate.
6.10. Merger and Sale of Assets.
Without the prior written consent of the Required Lenders (such consent not to
be unreasonably withheld), the Borrower will not, nor will it permit any
Material Subsidiary to, merge or consolidate with or into any other Person, or
sell or otherwise dispose of all or substantially all of its Property to
another Person except that (i) a Material Subsidiary
may merge into the Borrower or a Wholly-Owned Subsidiary, (ii) a Material
Subsidiary may dispose of all or substantially all of its Property to the
Borrower or a Wholly-Owned Subsidiary, or (iii) the Borrower or any Subsidiary
may sell, transfer, contribute, convey or dispose of accounts, general
intangibles and/or chattel paper (each as defined in Article 9 of the Uniform
Commercial Code) and associated collateral, lockbox and other collection
accounts, records and/or proceeds in connection with a Permitted Receivables
Securitization.
6.11. Liens.
The Borrower will not, nor will it permit any Material Subsidiary to, create,
incur, or suffer to exist any Lien in, of or on the Property of the Borrower or
any Material Subsidiary, except:
(i)
Liens for taxes, assessments or governmental charges or levies on its Property
if the same shall not at the time be delinquent or thereafter can be paid
without penalty, or are being contested in good faith and by appropriate proceedings
and for which adequate reserves in accordance with Agreement Accounting
Principles shall have been set aside on its books;
|
30 |
(ii)
Liens imposed by law, such as carriers', warehousemen's and mechanics' liens
and other similar liens arising in the ordinary course of business which secure
payment of obligations not more than sixty (60) days past due or which are
being contested in good faith by appropriate proceedings and for which adequate
reserves shall have been set aside on its books;
(iii)
Liens arising out of pledges or deposits under worker's compensation laws,
unemployment insurance, old age pensions, or other social security or
retirement benefits, or similar legislation;
(iv)
Utility easements, building restrictions and such other encumbrances or charges
against real property as are of a nature generally existing with respect to
properties of a similar character and which do not in any material way affect
the marketability of the same or interfere with the use thereof in the business
of the Borrower or its Subsidiaries;
(v)
Liens existing on the date hereof and described in Schedule 5.14;
(vi)
Liens on Property of the Borrower or any of its Material Subsidiaries created
solely for the purpose of securing Indebtedness incurred to fund the purchase
price of Property, provided that no such Lien shall extend to or cover
any other Property of the Borrower or its Material Subsidiaries other than the
Property so acquired and the original principal amount of the Indebtedness so
secured by any such Lien shall not exceed the original purchase price of the
Property so acquired;
(vii)
The Lien of the First Mortgage and any Lien described in any deeds or other
instruments under which property has been conveyed to the Borrower and to which
the Lien of the First Mortgage is expressly made subject;
(viii) Any Lien
existing on any property or asset prior to the Acquisition thereof by the
Borrower or any Material Subsidiary provided that the Acquisition is permitted
under Section 6.13 and such Lien is not created in contemplation of or
in connection with such Acquisition;
(ix)
Liens arising under a Permitted Receivables Securitization;
(x)
Liens arising by operation of law with respect to any deposit, securities and
commodity account; provided that (a) the right of the Borrower or the
applicable Material Subsidiary to withdraw assets from such account shall not
be restricted other than by customary rules of general application (such as
restrictions on withdrawals during the time required for a check to clear); and
(b) such account is not intended by the Borrower or any Material Subsidiary to
provide collateral to the applicable depository institution, securities
intermediary or commodities intermediary;
|
31 |
(xi)
Liens in favor of the Administrative Agent hereunder;
(xii)
Any Lien arising out of the refinancing, extension, or renewal of any Indebtedness
secured by any Lien permitted by clause (v) of this Section 6.11;
provided that such Indebtedness is not increased and is not secured by
any additional assets; and
(xiii)
(A) Liens incurred by the Borrower or the Parent in connection
with Rate Management Transactions entered into by either the Borrower or the
Parent in the ordinary course of business and not for speculation and in
accordance with its established risk management policies, and (B) other Liens
incurred by the Borrower or the Parent in the ordinary course of
business, provided that the aggregate principal amount of the
Indebtedness secured by the Liens permitted under this clause (xiii) shall
not exceed $50,000,000 at any one time outstanding.
6.12. Leverage
Ratio. The Borrower will not permit the ratio, determined as of
the end of each of its fiscal quarters, of (i)
Consolidated Indebtedness to (ii) Consolidated Total Capitalization to be
greater than 0.65 to 1.0.
6.13. Investments
and Acquisitions. Without the prior written consent of the
Required Lenders (such consent not to be unreasonably withheld), the Borrower
will not, nor will it permit any Subsidiary to, make or suffer to exist any
Investments (including loans and advances to, and other Investments in,
Subsidiaries, or commitments therefor, or to create
any Subsidiary or to become or remain a partner in any partnership or joint
venture), or to make any Acquisition of any Person, except:
(i)
Cash Equivalent Investments and Investments permitted by the investment
policies approved from time to time by the board of directors of the Borrower
or the relevant Subsidiary, as applicable;
(ii)
Investments in, and loans and advances to, Subsidiaries existing as of the date
hereof and other Investments existing as of the date hereof;
(iii)
Investments by Subsidiaries in securities of the Borrower and Investments by
the Borrower and its Subsidiaries in any business trust controlled, directly or
indirectly, by the Borrower to the extent such business trust purchases
securities of the Borrower;
(iv)
In addition to Investments otherwise permitted hereunder, Investments and
Acquisitions related to the energy business of the Borrower and its Subsidiaries
made after the date hereof in an aggregate amount not exceeding $750,000,000 at
any one time outstanding; and
(v)
Investments by the Borrower or a Subsidiary in connection with a Permitted
Receivables Securitization.
6.14. Subsidiary
Dividend Restrictions. The Borrower will not, nor will it permit
any Material Subsidiary to, become a party to any agreement prohibiting or
restricting the ability of such Material Subsidiary to declare or pay dividends
to the Borrower, except as disclosed in Schedule 5.12, other than
prohibitions or restrictions in connection with a Permitted Receivables
Securitization.
32
6.15.
Affiliates. The Borrower will not, and will not permit any
Subsidiary to, enter into any transaction (including the purchase or sale of
any Property or service) with, or make any payment or transfer to, any
Affiliate that is not a Subsidiary except in the ordinary course of business
and pursuant to the reasonable requirements of the Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the Borrower
or such Subsidiary than the Borrower or such Subsidiary would obtain in a
comparable arms-length transaction; provided, that for the avoidance of
doubt, nothing contained in this Section 6.15 shall prohibit the
Borrower from paying dividends to the Parent.
6.16. OFAC,
PATRIOT Act Compliance. The Borrower will, and will cause each of
its Subsidiaries to, (i) refrain from doing
business in a Sanctioned Country or with a Sanctioned Person in violation of
the economic sanctions of the United States administered by OFAC, and
(ii) provide, to the extent commercially reasonable, such information and
take such actions as are reasonably requested by the Administrative Agent or
any Lender in order to assist the Administrative Agent and the Lenders in
maintaining compliance with the PATRIOT Act.
ARTICLE 7
DEFAULTS
The occurrence of any one or more of the following events
shall constitute a Default:
(a)
Any representation or warranty made by or on behalf of the Borrower or any of
its Subsidiaries to the Lenders or the Administrative Agent under or in
connection with this Agreement or any Loan Document, any Loans, or any report,
certificate, financial statement or other information delivered in connection
with this Agreement or any other Loan Document shall be false in any material
respect when so made, deemed made or delivered.
(b)
Nonpayment of principal of any Loan when due; or nonpayment of interest on any
Loan, any fee payable by the Borrower hereunder or any other obligation under
any of the Loan Documents within five (5) days after the same becomes due.
(c)
The breach by the Borrower of any of the terms or provisions of Section 6.2.
6.3(i) (and (i)
in the case of failure to deliver notice of a Default arising under Section 7(d),
five (5) days shall have elapsed after an Authorized Officer obtained knowledge
of such Default, and (ii) in the case of failure to deliver notice of a Default
arising under Section 7(e), twenty (20) days shall have elapsed
after an Authorized Officer obtained knowledge of such Default), 6.10, 6.11,
6.12 or 6.13.
(d)
The breach by the Borrower (other than a breach which constitutes a Default
under another Section of this Article 7) of any of the terms or
provisions of Section 6.9 or 6.14 which is not remedied
within five (5) days after written notice from the Administrative Agent or any
Lender.
33
(e)
The breach by the Borrower (other than a breach which constitutes a Default
under another Section of this Article 7) of any of the terms or provisions of
this Agreement which is not remedied within twenty (20) days after written
notice from the Administrative Agent or any Lender.
(f)
Failure of the Borrower or any of its Subsidiaries to pay when due any Material
Indebtedness; or the default by the Borrower or any of its Subsidiaries in the
performance of any term, provision or condition contained in any agreement
under which any such Material Indebtedness was created or is governed, or any
other event shall occur or condition exist, the effect of which default or
event is to cause, or to permit the holder or holders of such Material
Indebtedness to cause, such Material Indebtedness to become due prior to its
stated maturity; or any Material Indebtedness of the Borrower or any of its
Subsidiaries shall be declared to be due and payable or required to be prepaid
or repurchased (other than by a regularly scheduled payment) prior to the
stated maturity thereof; or the Borrower or any of its Subsidiaries shall not
pay, or admit in writing its inability to pay, its debts generally as they
become due.
(g)
The Borrower or any of its Material Subsidiaries shall (i)
have an order for relief entered with respect to it under the Federal
bankruptcy laws as now or hereafter in effect, (ii) make an assignment for the
benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or similar
official for it or any Substantial Portion of its Property, (iv) institute any
proceeding seeking an order for relief under the Federal bankruptcy laws as now
or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or
seeking dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail to file
an answer or other pleading denying the material allegations of any such
proceeding filed against it, (v) take any corporate or partnership action to
authorize or effect any of the foregoing actions set forth in this Section 7(g)
or (vi) fail to contest in good faith any appointment or proceeding
described in Section 7(h).
(h)
Without the application, approval or consent of the Borrower or any of its
Subsidiaries, a receiver, trustee, examiner, liquidator or similar official
shall be appointed for the Borrower or any of its Material Subsidiaries or any
Substantial Portion of its Property, or a proceeding described in Section 7(g)
shall be instituted against the Borrower or any of its Material
Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a
period of sixty (60) consecutive days.
(i)
Any court, government or governmental agency shall condemn, seize or otherwise
appropriate, or take custody or control of (each, a "Condemnation"),
all or any portion of the Property of the Borrower and its Subsidiaries which,
when taken together with all other Property of the Borrower and its
Subsidiaries so condemned, seized, appropriated, or taken custody or control of,
during the twelve-month period ending with the month in which any such action
occurs, constitutes a Substantial Portion; provided that the term "Condemnation"
shall not include any voluntary transfer by the Borrower or any of its
Subsidiaries of its electronic transmission line facilities, or any interest
therein, to a regional independent grid operator.
34
(j)
The Borrower or any of its Subsidiaries shall fail within thirty (30) days to
pay, bond or otherwise discharge one or more (i) judgments
or orders for the payment of money in excess of $25,000,000 (or the equivalent
thereof in currencies other than U.S. Dollars) in the aggregate, or (ii)
nonmonetary judgments or orders which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, which judgment(s), in
any such case, is/are not stayed on appeal or otherwise being appropriately
contested in good faith.
(k)
The Unfunded Liabilities of all Single Employer Plans shall exceed in the
aggregate $75,000,000 or any Reportable Event shall occur in connection with
any Plan, or the Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the Borrower or any other member of the Controlled Group as withdrawal
liability (determined as of the date of such notification), exceeds
$25,000,000.
(l)
The Borrower or any of its Subsidiaries shall (i) be
the subject of any proceeding or investigation pertaining to the release by the
Borrower, any of its Subsidiaries or any other Person of any toxic or hazardous
waste or substance into the environment, or (ii) violate any Environmental Law,
which, in the case of an event described in clause (i)
or clause (ii), could reasonably be expected to have a Material
Adverse Effect.
(m)
Any Change in Control shall occur.
(n)
The Parent shall cease to own, free and clear of all Liens, 100% of the
outstanding shares of voting stock of the Borrower.
ARTICLE 8
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1.
Acceleration.
(a)
If any Default described in Sections 7(g) or 7(h) occurs
with respect to the Borrower, the obligations of the Lenders to make Loans
hereunder shall automatically terminate and the Obligations shall immediately
become due and payable without any election or action on the part of the
Administrative Agent or any Lender. If any other Default occurs, the
Required Lenders (or the Administrative Agent with the consent of the Required
Lenders) may terminate or suspend the obligations of the Lenders to make Loans
hereunder or declare the Obligations to be due and payable, or both, whereupon
the Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrower hereby expressly
waives.
(b)
If, within fourteen (14) days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
hereunder as a result of any Default (other than any Default as described in Sections 7(g)
or 7(h) with respect to the Borrower) and before any judgment or decree
for the payment of the Obligations due shall have been obtained or entered, the
Required Lenders (in their sole discretion) shall so direct, the Administrative
Agent shall, by notice to the Borrower, rescind and annul such acceleration
and/or termination.
35
8.2.
Amendments. Neither this Agreement or any other Loan Document
nor any provision hereof or thereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower
and the Required Lenders (or by the Administrative Agent at the direction or
with the consent of the Required Lenders); provided, however,
that no such agreement shall:
(i)
unless agreed to by each Lender directly affected thereby, (i) reduce
or forgive the principal amount of any Loan, reduce the rate of or forgive any
interest thereon (provided that only the consent of the Required Lenders
shall be required to waive the applicability of any post-default increase in
interest rates), or reduce or forgive any fees hereunder, (ii) extend the
scheduled date for the payment of any principal of or interest on any Loan
(including any scheduled date for the mandatory reduction or termination of any
Commitments), or extend the time of payment of any fees hereunder, or
(iii) increase any Commitment of any such Lender over the amount
thereof in effect or extend the maturity thereof;
(ii)
unless agreed to by all of the Lenders, (A) modify the definition of the
term "Required Lenders", or (B) change or waive any provision of
Section 11.2, any other provision of this Agreement or any other Loan
Document requiring pro rata treatment of any Lenders, or this
Section 8.2; and
(iii)
unless agreed to by the Administrative Agent, 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.
8.3.
Preservation of Rights. No delay or omission of the Lenders or
the Administrative Agent to exercise any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of any Loans notwithstanding the existence
of a Default or the inability of the Borrower to satisfy the conditions
precedent to such Loans shall not constitute any waiver or acquiescence.
Any single or partial exercise of any such right shall not preclude other or
further exercise thereof or the exercise of any other right, and no waiver,
amendment or other variation of the terms, conditions or provisions of the Loan
Documents whatsoever shall be valid unless in writing signed by the Lenders
required pursuant to Section 8.2, and then only to the extent
specifically set forth in such writing. All remedies contained in the
Loan Documents or by law afforded shall be cumulative and all shall be
available to the Administrative Agent and the Lenders until the Obligations
have been paid in full.
ARTICLE 9
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties of the Borrower contained in this Agreement shall survive the making of the Loans herein contemplated.
36
9.2.
Governmental Regulation. Anything contained in this Agreement
to the contrary notwithstanding, no Lender shall be obligated to extend credit
to the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3.
Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any
of the provisions of the Loan Documents.
9.4.
Entire Agreement. The Loan Documents embody the entire
agreement and understanding among the Borrower, the Administrative Agent and
the Lenders and supersede all prior agreements and understandings among the
Borrower, the Administrative Agent and the Lenders relating to the subject
matter thereof.
9.5. Several
Obligations; Benefits of this Agreement. The respective obligations
of the Lenders hereunder are several and not joint and no Lender shall be the
partner or agent of any other (except to the extent to which the Administrative
Agent is authorized to act as such). The failure of any Lender to perform
any of its obligations hereunder shall not relieve any other Lender from any of
its obligations hereunder. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this
Agreement and any Person indemnified under Section 9.6 or any other
provision of this Agreement, and their respective successors and assigns, provided
that the parties hereto expressly agree that the Arranger shall enjoy the
benefits of the provisions of Sections 9.6, 9.10 and 10.11 to the
extent specifically set forth therein and shall have the right to enforce such
provisions on its own behalf and in its own name to the same extent as if it
were a party to this Agreement.
9.6.
Expenses; Indemnification.
(a)
The Borrower shall reimburse the Administrative Agent and the Arranger for any
reasonable costs, internal charges and out-of-pocket expenses (including
reasonable attorneys' fees and time charges of attorneys for the Administrative
Agent, which attorneys may be employees of the Administrative Agent) paid or
incurred by the Administrative Agent or the Arranger in connection with the
preparation, negotiation, execution, delivery, syndication, distribution
(including via the internet), review, amendment, modification, and
administration of the Loan Documents. The Borrower also agrees to
reimburse the Administrative Agent, the Arranger and the Lenders for any reasonable
costs, internal charges and out-of-pocket expenses (including reasonable
attorneys' fees and time charges of attorneys for the Administrative Agent, the
Arranger and the Lenders, which attorneys may be employees of the
Administrative Agent, the Arranger or a Lender) paid or incurred by the
Administrative Agent, the Arranger or any Lender in connection with the
collection and enforcement of the Loan Documents. Expenses being
reimbursed by the Borrower under this Section include reasonable costs and expenses
incurred in connection with the Reports described in the following
sentence. The Borrower acknowledges that from time to time JPMorgan may
prepare and may distribute to the Lenders (but shall have no obligation or duty
to prepare or to distribute to the Lenders) certain audit reports (the "Reports")
pertaining to the Borrower's assets for internal use by JPMorgan from
information furnished to it by or on behalf of the Borrower, after JPMorgan has
exercised its rights of inspection pursuant to this Agreement.
|
37 |
(b)
The Borrower hereby further agrees to indemnify the Administrative Agent, the
Arranger, each Lender, their respective Affiliates, and each of their partners,
directors, officers, employees, agents and advisors (each such Person being
called an "Indemnitee") against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including all expenses of
litigation or preparation therefor whether or not such
Indemnitee is a party thereto) which any of them may
pay or incur arising out of or relating to this Agreement, the other Loan
Documents, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Loans hereunder
except to the extent that they are determined in a final non-appealable
judgment by a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the party seeking indemnification.
(c)
The obligations of the Borrower under this Section 9.6 shall survive the
termination of this Agreement.
9.7.
Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Administrative
Agent with sufficient counterparts so that the Administrative Agent may furnish
one to each of the Lenders.
9.8. Accounting.
Except as provided to the contrary herein, all accounting terms used herein
shall be interpreted and all accounting determinations hereunder shall be made
in accordance with Agreement Accounting Principles.
9.9.
Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.10. Nonliability of Lenders. The
relationship between the Borrower on the one hand and the Lenders and the
Administrative Agent on the other hand shall be solely that of borrower and
lender. None of the Administrative Agent, the Arranger or any Lender
shall have any fiduciary responsibilities to the Borrower. None of the
Administrative Agent, the Arranger or any Lender undertakes any responsibility
to the Borrower to review or inform the Borrower of any matter in connection
with any phase of the Borrower's business or operations. The Borrower
agrees that no Indemnitee shall have liability to the
Borrower (whether sounding in tort, contract or otherwise) for losses suffered
by the Borrower in connection with, arising out of, or in any way related to,
the transactions contemplated and the relationship established by the Loan
Documents, or any act, omission or event occurring in connection therewith,
unless it is determined in a final non-appealable judgment by a court of
competent jurisdiction that such losses resulted from the gross negligence or
willful misconduct of the party from which recovery is sought. No Indemnitee shall have any liability with respect to, and
the Borrower hereby waives, releases and agrees not to xxx for, (i) any special, indirect, consequential or punitive damages
suffered by the Borrower in connection with, arising out of, or in any way
related to the Loan Documents or the transactions contemplated thereby, and
(ii) any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby
or thereby. The provisions of this Section 9.10 shall survive the
termination of this Agreement.
|
38 |
9.11. Confidentiality.
Each Lender agrees to hold any confidential information which it may receive
from the Borrower pursuant to this Agreement in confidence, except for
disclosure (i) to its Affiliates, directors,
officers, employees and agents and to other Lenders and their respective
Affiliates, directors, officers, employees and agents (ii) to legal counsel,
accountants, and other professional advisors to such Lender or to a Transferee,
(iii) to regulatory officials having jurisdiction over such Lender or any of
its Affiliates, (iv) as required by law, regulation, or legal process, (v) as
required in connection with any legal proceeding to which such Lender is a
party, (vi) to such Lender's actual or prospective direct or indirect
contractual counterparties in Rate Management Transactions or to legal counsel,
accountants and other professional advisors to such counterparties, (vii)
permitted by Section 12.4, (viii) in connection with the exercise
of rights or remedies hereunder or any action or proceeding relating to this
agreement and (ix) to the extent, and in the manner, consented to by the
Borrower. In the case of any disclosure pursuant to clause (i), (ii), (vi) or (vii)
above, each Person to whom such disclosure is made will be informed of the
confidential nature of such information and instructed to keep such information
confidential. In the case of any requested disclosure pursuant to clause
(iv) or (v) above, the applicable Lender will give prompt notice of
the request to the Borrower (unless prohibited by the terms of the applicable
law, regulation, subpoena or other legal process or proceeding) so that the
Borrower may endeavor to obtain a protective order or other assurance of
confidential treatment.
9.12. Nonreliance. Each Lender hereby represents
that it is not relying on or looking to any margin stock (as defined in
Regulation U of the Board of Governors of the Federal Reserve System) for the
repayment of the Loans provided for herein.
9.13. Disclosure.
The Borrower and each Lender hereby acknowledge and agree that JPMorgan and/or
its Affiliates from time to time may hold investments in, make other loans to
or have other relationships with the Borrower and its Affiliates.
9.14. PATRIOT
Act Notice. Each Lender that is subject to the PATRIOT Act and
the Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower that pursuant to the requirements of the PATRIOT Act, it
is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the PATRIOT Act.
9.15. Counterparts.
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto
may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Administrative Agent and the Lenders as of the Closing Date and each party has
notified the Administrative Agent by facsimile transmission or telephone that
it has taken such action; provided that, for the avoidance of doubt, the
Commitments shall not become effective until all of the conditions set forth in
Section 4.1 have been satisfied or waived in accordance with the terms
hereof.
|
39 |
ARTICLE 10
THE ADMINISTRATIVE AGENT
10.1. Appointment; Nature of
Relationship. JPMorgan is hereby appointed by each of the Lenders as its
contractual representative (herein referred to as the "Administrative
Agent") hereunder and under each other Loan Document, and each of the
Lenders irrevocably authorizes the Administrative Agent to act as the contractual
representative of such Lender with the rights and duties expressly set forth
herein and in the other Loan Documents. The Administrative Agent agrees
to act as such contractual representative upon the express conditions contained
in this Article 10. Notwithstanding the use of the defined term
"Administrative Agent," it is expressly understood and agreed
that the Administrative Agent shall not have any fiduciary responsibilities to
any Lender by reason of this Agreement or any other Loan Document and that the
Administrative Agent is merely acting as the contractual representative of the
Lenders with only those duties as are expressly set forth in this Agreement and
the other Loan Documents. In its capacity as the Lenders' contractual
representative, the Administrative Agent (i) does not
hereby assume any fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of Section 9-105
of the Uniform Commercial Code and (iii) is acting as an independent
contractor, the rights and duties of which are limited to those expressly set
forth in this Agreement and the other Loan Documents. Each of the Lenders
hereby agrees to assert no claim against the Administrative Agent on any agency
theory or any other theory of liability for breach of fiduciary duty, all of
which claims each Lender hereby waives.
10.2. Powers.
The Administrative Agent shall have and may exercise such powers under the Loan
Documents as are specifically delegated to the Administrative Agent by the
terms of each thereof, together with such powers as are reasonably incidental
thereto. The Administrative Agent shall have no implied duties to the
Lenders, or any obligation to the Lenders to take any action thereunder except
any action specifically provided by the Loan Documents to be taken by the
Administrative Agent.
10.3. General
Immunity. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Borrower, the
Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is determined in a final
non-appealable judgment by a court of competent jurisdiction to have arisen
from the gross negligence or willful misconduct of such Person.
10.4. No
Responsibility for Loans, Recitals, etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(a) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder or the contents of any certificate, report
or other document delivered hereunder or in connection with any Loan Document;
(b) the performance or observance of any of the covenants or agreements of any
obligor under any Loan Document, including any agreement by an obligor to
furnish information directly to each Lender; (c) the satisfaction of any
condition specified in Article 4, except receipt of items required to be
delivered solely to the Administrative Agent; (d) the existence or possible
existence of any Default or Unmatured Default; (e)
the validity, enforceability, effectiveness, sufficiency or genuineness of any
Loan Document or any other instrument or writing furnished in connection
therewith; (f) the value, sufficiency, creation, perfection or priority of any
Lien in any collateral security; or (g) the financial condition of the Borrower
or any guarantor of any of the Obligations or of any of the Borrower's or any
such guarantor's respective Subsidiaries. The Administrative Agent shall
have no duty to disclose to the Lenders information that is not required to be
furnished by the Borrower to the Administrative Agent at such time, but is
voluntarily furnished by the Borrower to the Administrative Agent (either in
its capacity as Administrative Agent or in its individual capacity).
|
40 |
10.5. Action on
Instructions of Lenders. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, hereunder and under
any other Loan Document in accordance with written instructions signed by the
Required Lenders (or all of the Lenders in the event that and to the extent
that this Agreement expressly requires such), and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders. 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 or any other Loan Document
unless it shall be requested in writing to do so by the Required Lenders (or
all of the Lenders in the event that and to the extent that this Agreement
expressly requires such). The Administrative Agent shall be fully
justified in failing or refusing to take any action hereunder and under any
other Loan Document unless it shall first be indemnified to its satisfaction by
the Lenders pro rata against any and all liability, cost and expense that it
may incur by reason of taking or continuing to take any such action.
10.6. Employment
of Administrative Agents and Counsel. The Administrative Agent may
execute any of its duties as Administrative Agent hereunder and under any other
Loan Document by or through directors, officers, employees, agents, and
attorneys-in-fact and shall not be answerable to the Lenders (except as to
money or securities received by it or its authorized agents) for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Administrative Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Administrative Agent
and the Lenders and all matters pertaining to the Administrative Agent's duties
hereunder and under any other Loan Document.
10.7. Reliance
on Documents; Counsel. The Administrative Agent shall be entitled
to rely upon any note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in
respect to legal matters, upon the opinion of counsel selected by the
Administrative Agent, which counsel may be employees of the Administrative
Agent. Without limiting the foregoing, the Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
10.8. Administrative Agent's
Reimbursement and Indemnification. The Lenders agree to reimburse and
indemnify the Administrative Agent ratably in proportion to their respective
Pro Rata Shares (i) for any amounts not reimbursed by
the Borrower for which the Administrative Agent is entitled to reimbursement by
the Borrower under the Loan Documents, (ii) for any other expenses incurred by
the Administrative Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the Loan
Documents (including for any expenses incurred by the Administrative Agent in
connection with any dispute between the Administrative Agent and any Lender or
between two or more of the Lenders) and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby (including for
any such amounts incurred by or asserted against the Administrative Agent in
connection with any dispute between the Administrative Agent and any Lender or
between two or more of the Lenders), or the enforcement of any of the terms of
the Loan Documents or of any such other documents, provided that (x) no
Lender shall be liable for any of the foregoing to the extent any of the
foregoing is found in a final non-appealable judgment by a court of competent jurisdiction
to have resulted from the gross negligence or willful misconduct of the
Administrative Agent and (y) any indemnification required pursuant to Section 3.5(g)
shall, notwithstanding the provisions of this Section 10.8, be paid by
the relevant Lender in accordance with the provisions thereof. The
obligations of the Lenders under this Section 10.8 shall survive payment
of the Obligations and termination of this Agreement.
|
41 |
10.9.
Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Unmatured Default hereunder unless the Administrative Agent
has received written notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Unmatured
Default and stating that such notice is a "notice of default".
In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give prompt notice thereof to the Lenders.
10.10. Rights as a Lender.
In the event the Administrative Agent is a Lender, the Administrative Agent
shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may
exercise the same as though it were not the Administrative Agent, and the term
"Lender" or "Lenders" shall, at any time when
the Administrative Agent is a Lender, unless the context otherwise indicates,
include the Administrative Agent in its individual capacity. The
Administrative Agent and its Affiliates may accept deposits from, lend money
to, and generally engage in any kind of trust, debt, equity or other
transaction, in addition to those contemplated by this Agreement or any other
Loan Document, with the Borrower or any of its Subsidiaries in which the
Borrower or such Subsidiary is not restricted hereby from engaging with any
other Person. The Administrative Agent, in its individual capacity, is
not obligated to remain a Lender.
10.11. Lender Credit Decision.
Each Lender acknowledges that it has, independently and without reliance upon
the Administrative Agent, the Arranger or any other Lender and based on the
financial statements prepared by the Borrower and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each
Lender also acknowledges that it will, independently and without reliance upon
the Administrative Agent, the Arranger 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 and the other Loan Documents.
|
42 |
10.12. Successor Administrative Agent.
The Administrative Agent may resign at any time by giving written notice
thereof to the Lenders and the Borrower, such resignation to be effective upon
the appointment of a successor Administrative Agent or, if no successor
Administrative Agent has been appointed, forty-five (45) days after the
retiring Administrative Agent gives notice of its intention to resign.
Upon any such resignation, the Required Lenders shall have the right to
appoint, on behalf of the Borrower and the Lenders, a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed
by the Required Lenders within thirty (30) days after the resigning
Administrative Agent's giving notice of its intention to resign, then the resigning
Administrative Agent may appoint, on behalf of the Borrower and the Lenders, a
successor Administrative Agent. Notwithstanding the previous sentence,
the Administrative Agent may at any time without the consent of the Borrower or
any Lender, appoint any of its Affiliates, which is a commercial bank as a
successor Administrative Agent hereunder. If the Administrative Agent has
resigned and no successor Administrative Agent has been appointed, the Lenders
may perform all the duties of the Administrative Agent hereunder and the
Borrower shall make all payments in respect of the Obligations to the
applicable Lender and for all other purposes shall deal directly with the
Lenders. No successor Administrative Agent shall be deemed to be appointed
hereunder until such successor Administrative Agent has accepted the
appointment. Any such successor Administrative Agent shall be a
commercial bank having capital and retained earnings of at least
$100,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning Administrative
Agent. Upon the effectiveness of the resignation of the Administrative
Agent, the resigning Administrative Agent shall be discharged from its duties
and obligations hereunder and under the Loan Documents. After the
effectiveness of the resignation of an Administrative Agent, the provisions of
this Article 10 shall continue in effect for the benefit of such
Administrative Agent in respect of any actions taken or omitted to be taken by
it while it was acting as the Administrative Agent hereunder and under the
other Loan Documents. In the event that there is a successor to the
Administrative Agent by merger, or the Administrative Agent assigns its duties
and obligations to an Affiliate pursuant to this Section 10.12, then the
term "Prime Rate" as used in this Agreement shall mean the prime
rate, base rate or other analogous rate of the new Administrative Agent.
10.13. Administrative Agent and
Arranger Fees. The Borrower agrees to pay to the Administrative
Agent and the Arranger, for their accounts, the fees agreed to by the Borrower,
the Administrative Agent and/or the Arranger pursuant to the Fee Letter.
10.14. Delegation to Affiliates.
The Borrower and the Lenders agree that the Administrative Agent may delegate
any of its duties under this Agreement to any of its Affiliates. Any such
Affiliate (and such Affiliate's directors, officers, agents and employees)
which performs duties in connection with this Agreement shall be entitled to
the same benefits of the indemnification, waiver and other protective
provisions to which the Administrative Agent is entitled under Article 9
and Article 10.
|
43 |
10.15. Other Agents. No Lender now or hereafter identified on the cover page, the signature pages or otherwise in this Agreement, or in any document related hereto, as being the "Syndication Agent" or a "Documentation Agent" shall have any right, power, obligation, liability, responsibility or duty under this Agreement in such capacity other than those applicable to all Lenders. Each Lender acknowledges that it has not relied, and will not rely, on any Person so identified in deciding to enter into this Agreement or in taking or refraining from taking any action hereunder or pursuant hereto.
ARTICLE 11
SETOFF; RATABLE PAYMENTS
11.1.
Setoff. In addition to, and without limitation of, any rights
(including other rights of setoff) of the Lenders under applicable law, if the
Borrower becomes insolvent, however evidenced, or any Default occurs, any and
all deposits (including all account balances, whether provisional or final and
whether or not collected or available) and any other Indebtedness at any time
held or owing by any Lender or any of its respective Affiliates to or for the
credit or account of the Borrower may be offset and applied toward the payment
of the Obligations owing to such Lender or any such Affiliate whether or not
the Obligations, or any part thereof, shall then be due. Each Lender
agrees to notify the Borrower and the Administrative Agent in writing promptly
after any such setoff and application; provided that the failure to give
such notice shall not affect the validity of such setoff and application.
11.2. Ratable
Payments. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Outstanding Credit Exposure (other than payments
received pursuant to Sections 3.1, 3.2, 3.4 or 3.5) in a
greater proportion than that received by any other Lender, such Lender agrees,
promptly upon demand, to purchase a portion of the Aggregate Outstanding Credit
Exposure held by the other Lenders so that after such purchase each Lender will
hold its Pro Rata Share of the Aggregate Outstanding Credit Exposure. If
any Lender, whether in connection with setoff or amounts which might be subject
to setoff or otherwise, receives collateral or other protection for its
Obligations or such amounts which may be subject to setoff, such Lender agrees,
promptly upon demand, to take such action necessary such that all Lenders share
in the benefits of such collateral ratably in proportion to their respective Pro
Rata Share of the Aggregate Outstanding Credit Exposure. In case any such
payment is disturbed by legal process, or otherwise, appropriate further
adjustments shall be made. If an amount to be setoff is to be applied to
Indebtedness of the Borrower to a Lender other than Indebtedness comprised of
the Outstanding Credit Exposure of such Lender, such amount shall be applied
ratably to such other Indebtedness and to the Indebtedness comprised of such
Outstanding Credit Exposure.
ARTICLE 12
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
44
12.1. Successors and Assigns.
The terms and provisions of the Loan Documents shall be binding upon and inure
to the benefit of the Borrower and the Lenders and their respective successors
and assigns, except that (i) the Borrower shall not
have the right to assign its rights or obligations under the Loan Documents
without the written consent of each Lender, (ii) any assignment by any Lender
must be made in compliance with Section 12.3 and (iii) any
participation by any Lender must be made in compliance with Section 12.2.
The parties to this Agreement acknowledge that clause (ii) of the foregoing
sentence relates only to absolute assignments and does not prohibit assignments
creating security interests, including (x) any pledge or assignment by any
Lender of all or any portion of its rights under this Agreement and any Note to
a Federal Reserve Bank or (y) in the case of a Lender which is a fund, any
pledge or assignment of all or any portion of its rights under this Agreement
and any Note to its trustee in support of its obligations to its trustee; provided
that no such pledge or assignment creating a security interest shall release
the transferor Lender from its obligations hereunder unless and until the
parties thereto have complied with the provisions of Section 12.3.
The Administrative Agent may treat the Person which made any Loan or which
holds any Note as the owner thereof for all purposes hereof unless and until
such Person complies with Section 12.3; provided that the
Administrative Agent may in its discretion (but shall not be required to)
follow instructions from the Person which made any Loan or which holds any Note
to direct payments relating to such Loan or Note to another Person. Any
assignee of the rights to any Loan or any Note agrees by acceptance of such
assignment to be bound by all the terms and provisions of the Loan
Documents. Any request, authority or consent of any Person, who at the
time of making such request or giving such authority or consent is the owner of
the rights to any Loan (whether or not a Note has been issued in evidence
thereof), shall be conclusive and binding on any subsequent holder or assignee
of the rights to such Loan.
12.2. Participations.
(a)
Permitted Participants; Effect. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time sell
to one or more banks or other entities ("Participants")
participating interests in any Outstanding Credit Exposure of such Lender, any
Note held by such Lender, any Commitment of such Lender or any other interest
of such Lender under the Loan Documents. In the event of any such sale by
a Lender of participating interests to a Participant, such Lender's obligations
under the Loan Documents shall remain unchanged, such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, such Lender shall remain the owner of its Outstanding Credit
Exposure and the holder of any Note issued to it in evidence thereof for all
purposes under the Loan Documents, all amounts payable by the Borrower under
this Agreement shall be determined as if such Lender had not sold such participating
interests, and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights
and obligations under the Loan Documents.
(b)
Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver
of any provision of the Loan Documents other than any amendment, modification
or waiver with respect to any Loans or Commitment in which such Participant has
an interest which forgives principal, interest or fees or reduces the interest
rate or fees payable with respect to any such Loan or Commitment, extends the
Facility Termination Date, postpones any date fixed for any regularly-scheduled
payment of principal of, or interest or fees on, any such Loan or Commitment,
releases any guarantor of any such Loan or releases all or substantially all of
the collateral, if any, securing any such Loan.
|
45 |
(c)
Benefit of Setoff. The Borrower agrees that each Participant shall
be deemed to have the right of setoff provided in Section 11.1 in
respect of its participating interest in amounts owing under the Loan Documents
to the same extent as if the amount of its participating interest were owing
directly to it as a Lender under the Loan Documents, provided that each
Lender shall retain the right of setoff provided in Section 11.1
with respect to the amount of participating interests sold to each
Participant. The Lenders agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in Section 11.1,
agrees to share with each Lender, any amount received pursuant to the exercise
of its right of setoff, such amounts to be shared in accordance with Section 11.2
as if each Participant were a Lender.
12.3. Assignments.
(a)
Permitted Assignments. Any Lender may, in the ordinary course of
its business and in accordance with applicable law, at any time assign to one
or more banks or other entities ("Purchasers") all or any part
of its rights and obligations under the Loan Documents. Such assignment
shall be substantially in the form of Exhibit C or in such other
form as may be agreed to by the parties thereto. The consent of the
Borrower and the Administrative Agent shall be required prior to an assignment
becoming effective with respect to a Purchaser which is not a Lender or an
Affiliate thereof or an Approved Fund; provided that if a Default has
occurred and is continuing, the consent of the Borrower shall not be
required. Such consent shall not be unreasonably withheld or
delayed. Each such assignment with respect to a Purchaser which is not a
Lender or an Affiliate thereof or an Approved Fund shall (unless each of the Borrower
(so long as no Default has occurred and is continuing) and the Administrative
Agent otherwise consents) be in an amount not less than the lesser of (i) $10,000,000 or (ii) the remaining amount of the
assigning Lender's Commitment (calculated as at the date of such assignment) or
Outstanding Credit Exposure (if the applicable Commitment has been terminated).
(b)
Effect; Effective Date. Upon (i)
delivery to the Administrative Agent of an assignment, together with any
consents required by Section 12.3(a), and (ii) payment of a $3,500
fee to the Administrative Agent for processing such assignment (unless such fee
is waived by the Administrative Agent in its sole discretion), such assignment
shall become effective on the effective date specified in such
assignment. The assignment shall contain a representation by the
Purchaser to the effect that none of the consideration used to make the
purchase of the Commitment and Outstanding Credit Exposure under the applicable
assignment agreement constitutes "plan assets" as defined under ERISA
and that the rights and interests of the Purchaser in and under the Loan
Documents will not be "plan assets" under ERISA. On and after
the effective date of such assignment, such Purchaser shall for all purposes be
a Lender party to this Agreement and any other Loan Document executed by or on
behalf of the Lenders and shall have all the rights and obligations of a Lender
under the Loan Documents, to the same extent as if it were an original party
hereto, and no further consent or action by the Borrower, the Lenders or the
Administrative Agent shall be required to release the transferor Lender with
respect to the percentage of the Aggregate Commitment and Outstanding Credit
Exposure assigned to such Purchaser; provided, however, that for
the avoidance of doubt, the transferor Lender shall continue to be entitled to
the benefits of those provisions of this Agreement and the other Loan Documents
which survive payment of the Obligations and termination of the Loan
Documents. Upon the consummation of any assignment to a Purchaser
pursuant to this Section 12.3(a), the transferor Lender, the
Administrative Agent and the Borrower shall, if the transferor Lender or the
Purchaser desires that its Loans be evidenced by Notes, make appropriate
arrangements so that new Notes or, as appropriate, replacement Notes are issued
to such transferor Lender and new Notes or, as appropriate, replacement Notes,
are issued to such Purchaser, in each case in principal amounts reflecting
their respective Commitments (or, if the Commitments have terminated, their
respective Outstanding Credit Exposure), as adjusted pursuant to such
assignment.
|
46 |
(c)
Register. The Administrative Agent, acting solely for this purpose
as an agent of the Borrower, shall maintain at its office in referred to in Schedule 13.1
a copy of each assignment agreement delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and Outstanding Credit Exposure owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, 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, notwithstanding notice to the contrary. 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.
12.4. Dissemination
of Information. The Borrower authorizes each Lender to disclose
to any Participant or Purchaser or any other Person acquiring an interest in
the Loan Documents by operation of law (each a "Transferee")
and any prospective Transferee any and all information in such Lender's
possession concerning the creditworthiness of the Borrower and its
Subsidiaries, including any information contained in any Reports; provided
that each Transferee and prospective Transferee agrees to be bound by Section
9.11 of this Agreement.
12.5. Tax
Treatment. If any interest in any Loan Document is transferred to
any Transferee, which is organized under the laws of any jurisdiction other
than the United States or any State thereof, the transferor Lender shall cause
such Transferee, concurrently with the effectiveness of such transfer, to
comply with the provisions of Section 3.5(d) and such Transferee
shall not be entitled to any additional payments under Section 3.5, (i) unless, and only to the extent, that the transferor
Lender was entitled to amounts under Section 3.5, or (ii) in the event
that payments to the Transferee were not subject to any withholding at the time
of transfer and became subject to withholding as a result of a Change In Law.
ARTICLE 13
NOTICES
13.1.
Notices.
(a)
Except as otherwise permitted by Section 2.13 with respect to
borrowing notices, all notices, requests and other communications to any party
hereunder shall be in writing (including electronic transmission, facsimile
transmission or similar writing) and shall be given to such party: (x) in the
case of the Borrower or the Administrative Agent, at its address or facsimile
number set forth on Schedule 13.1, (y) in the case of any Lender,
at its address or facsimile number set forth in its Administrative
Questionnaire or (z) in the case of any party, at such other address or
facsimile number as such party may hereafter specify for the purpose by notice
to the Administrative Agent and the Borrower in accordance with the provisions
of this Section 13.1. Each such notice, request or other
communication shall be effective (i) if given by
facsimile transmission, when transmitted to the facsimile number specified in
this Section and confirmation of receipt is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any other means,
when delivered at the address specified in this Section; provided that
notices to the Administrative Agent under Article 2 shall not be
effective until received. Notices delivered through electronic
communications to the extent provided in subsection (b) below, shall be
effective as provided in such subsection (b).
|
47 |
(b)
Notices and other communications to the Lenders hereunder may be delivered or
furnished by electronic communication (including e-mail and internet or
intranet websites) pursuant to procedures approved by the Administrative Agent
or as otherwise determined by the Administrative Agent, provided that
the foregoing shall not apply to notices to any Lender pursuant to Article 2
if such Lender has notified the Administrative Agent that it is incapable of
receiving notices under such Section by electronic communication. The
Administrative Agent or the Borrower may, in its respective discretion, agree
to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it or as it otherwise
determines, provided that such determination or approval may be limited
to particular notices or communications. Unless the Administrative Agent
otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail
or other written acknowledgement), provided that if such notice or other
communication is not given during the normal business hours of the recipient,
such notice or communication shall be deemed to have been given at the opening
of business on the next Business Day for the recipient, and (ii) notices or
communications posted to an internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying the
website address therefor.
13.2. Change
of Address. The Borrower, the Administrative Agent and any Lender
may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
ARTICLE 14
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
14.1. CHOICE OF LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL (EXCEPT AS MAY BE EXPRESSLY OTHERWISE PROVIDED IN ANY LOAN DOCUMENT) BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES).
|
48 |
14.2. CONSENT
TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW
YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF
NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT
FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT
OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY
OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE
ADMINISTRATIVE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT
OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING
OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY
IN A COURT IN NEW YORK, NEW YORK.
14.3. WAIVER
OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH
LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
Signatures Follow
49
IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative Agent have executed this Agreement as of the date first above written.
IDAHO POWER COMPANY, as the Borrower
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Sr. Vice President - Administrative Services and Chief Financial Officer
Idaho Power Company Term Loan Credit Agreement
JPMORGAN CHASE BANK, N.A., as Administrative Agent and as a Lender
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Associate
Idaho Power Company Term Loan Credit Agreement
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxx X. Telchman
Name: Xxxxx X. Telchman
Title: Vice President
Idaho Power Company Term Loan Credit Agreement
UNION BANK OF CALIFORNIA, N.A., as a Lender
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President
Idaho Power Company Term Loan Credit Agreement
WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender
By: /s/ Xxxxx X. Xxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxx
Title: Director
Idaho Power Company Term Loan Credit Agreement
SCHEDULE I
COMMITMENTS
|
Lender |
Commitment |
|
JPMorgan Chase Bank, N.A. |
$ 42,500,000 |
|
Bank of America, N.A. |
$ 42,500,000 |
|
Union Bank of California, N.A. |
$ 42,500,000 |
|
Wachovia Bank, National Association |
$ 42,500,000 |
|
TOTAL |
$170,000,000 |
|
I-1 |
SCHEDULE 5.8
SUBSIDIARIES AND OTHER INVESTMENTS
(As of December 31, 2007)
[Intentionally Omitted]
Schedule 5.8
SCHEDULE 5.12
MATERIAL AGREEMENTS
None.
Schedule 5.12
SCHEDULE 5.14
INDEBTEDNESS AND LIENS
Following is a list of existing liens
of the Borrower and Subsidiaries:
Borrower:
Indebtedness Owed To: Bondholders pursuant to that certain Mortgage
and Deed of Trust, dated as of October 1, 1937 between Borrower and Deutsche
Bank Trust Company Americas (formerly Bankers Trust Company) and R.G. Page
(Xxxxxxx Xxxx, successor individual trustee), as Trustee, as supplemented and
amended.
Property Encumbered: All existing and after-acquired real and personal
property of Borrower.
Amount of Indebtedness: The aggregate principal amount of Idaho Power
Company First Mortgage Bonds outstanding as of December 31, 2007 was $1.111
billion. The amount of First Mortgage Bonds issuable by Borrower, giving effect
to the Forty-second Supplemental Indenture, is limited to a maximum of $1.5
billion, but subject to increase at any time and may be further limited by
property, earnings and other provisions of the Mortgage.
Schedule 5.14
SCHEDULE 13.1
NOTICE ADDRESSES
Address
for notices for Borrower:
Idaho Power Company
0000 Xxxx Xxxxx Xxxxxx
X.X. Xxx 00
Xxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxx, Vice President and Treasurer
Telephone: 000-000-0000
Fax: 000-000-0000
Email: xxxxx@xxxxxxxxxx.xxx
Address
for notices as Administrative Agent:
JPMorgan Chase Bank, N.A.
00 Xxxxx Xxxxxxxx Xx., Xxxxx 00
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Email: xxxxxx.x.xxxxx@xxxxx.xxx
Address
for notices for Credit Contact:
JPMorgan Chase Bank, N.A.
00 Xxxxx Xxxxxxxx Xx., Xxxxx 00
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxxx.x.xxxxxxxxxx@xxxxxxxx.xxx
Schedule 13.1
EXHIBITS A-E
[Intentionally Omitted]
