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EXECUTION COPY
EXHIBIT 4(f)-1
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$50,000,000
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
among
THE WASHINGTON WATER POWER COMPANY,
THE BANKS NAMED HEREIN
and
TORONTO DOMINION (TEXAS), INC.
Dated as of July 22, 1997
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TABLE OF CONTENTS
Article Section Page
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I. DEFINITIONS
SECTION 1.01. Defined Terms.........................................4
SECTION 1.02. Terms Generally......................................19
II. THE CREDITS
SECTION 2.01. Commitments..........................................19
SECTION 2.02. Loans................................................19
SECTION 2.03. Notice of Borrowings.................................21
SECTION 2.04. Notes; Repayment of Loans............................22
SECTION 2.05. Fees.................................................22
SECTION 2.06. Interest on Loans....................................23
SECTION 2.07. Default Interest.....................................24
SECTION 2.08. Alternate Rate of Interest...........................24
SECTION 2.09. Termination and Reduction of
Commitments................................................24
SECTION 2.10. Prepayment...........................................25
SECTION 2.11. Reserve Requirements; Change
in Circumstances...........................................25
SECTION 2.12. Change in Legality...................................27
SECTION 2.13. Indemnity............................................28
SECTION 2.14. Pro Rata Treatment...................................29
SECTION 2.15. Sharing of Setoffs...................................29
SECTION 2.16. Payments.............................................30
SECTION 2.17. Taxes................................................30
SECTION 2.18. Termination or Assignment of
Commitments Under Certain Circumstances....................33
III. REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers.................................34
SECTION 3.02. Authorization........................................34
SECTION 3.03. Enforceability.......................................35
SECTION 3.04. Governmental Approvals...............................35
SECTION 3.05. Financial Statements.................................35
SECTION 3.06. No Material Adverse Change...........................36
SECTION 3.07. Litigation; Compliance with
Laws.......................................................36
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Article Section Page
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SECTION 3.08. Federal Reserve Regulations..........................36
SECTION 3.09. Investment Company Act; Public
Utility Holding Company Act................................37
SECTION 3.10. Use of Proceeds......................................37
SECTION 3.11. No Material Misstatements............................37
SECTION 3.12. Employee Benefit Plans...............................37
SECTION 3.13. Environmental and Safety
Matters....................................................38
SECTION 3.14. Significant Subsidiaries.............................39
IV. CONDITIONS OF LENDING
SECTION 4.01. All Borrowings.......................................39
SECTION 4.02. First Borrowing......................................40
V. AFFIRMATIVE COVENANTS
SECTION 5.01. Existence; Businesses and
Properties.................................................41
SECTION 5.02. Insurance............................................42
SECTION 5.03. Taxes and Obligations................................43
SECTION 5.04. Financial Statements, Reports,
etc........................................................43
SECTION 5.05. Litigation and Other Notices.........................44
SECTION 5.06. ERISA................................................45
SECTION 5.07. Maintaining Records; Access to
Properties and Inspections.................................45
SECTION 5.08. Use of Proceeds......................................46
VI. NEGATIVE COVENANTS
SECTION 6.01. Liens................................................46
SECTION 6.02. Mergers, Consolidations and
Acquisitions...............................................50
SECTION 6.03. Disposition of Assets................................51
VII. EVENTS OF DEFAULT
VIII. THE AGENT
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Article Section Page
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IX. MISCELLANEOUS
SECTION 9.01. Notices...............................................58
SECTION 9.02. Survival of Agreement.................................59
SECTION 9.03. Binding Effect........................................60
SECTION 9.04. Successors and Assigns................................60
SECTION 9.05. Expenses; Indemnity...................................64
SECTION 9.06. Right of Setoff.......................................65
SECTION 9.07. Applicable Law........................................65
SECTION 9.08. Waivers; Amendment....................................65
SECTION 9.09. Interest Rate Limitation..............................66
SECTION 9.10. Entire Agreement......................................67
SECTION 9.11. Waiver of Jury Trial..................................67
SECTION 9.12. Severability..........................................67
SECTION 9.13. Counterparts..........................................68
SECTION 9.14. Headings..............................................68
SECTION 9.15. Jurisdiction; Consent to
Service of Process..........................................68
References
Exhibit A Note
Exhibit B Assignment and Acceptance
Exhibit C Administrative Questionnaire
Exhibit D-1 Opinion of General Counsel for the Borrower
Exhibit D-2 Opinion of Special Counsel for the Borrower
Schedule 2.01 Banks
Schedule 3.14 Significant Subsidiaries
Schedule 4.02(c) Orders of Governmental Authorities
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AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated as
of July 22, 1997, among THE WASHINGTON WATER POWER COMPANY, a
Washington corporation (herein called the "Borrower"), the
banks listed in Schedule 2.01 (the "Banks") and TORONTO
DOMINION (TEXAS), INC., as agent for the Banks (in such
capacity, the "Agent").
The Borrower has requested that the Banks extend credit to the
Borrower in order to enable the Borrower to borrow on a standby revolving credit
basis on and after the date hereof, at any time prior to the Expiration Date (as
herein defined) a principal amount not in excess of $50,000,000 at any time
outstanding. The proceeds of such borrowings are to be used for general
corporate purposes. In consideration of the mutual covenants and agreements
contained herein, the parties agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at a rate determined
by reference to the Alternate Base Rate in accordance with the provisions of
Article II.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit C.
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the
person specified.
"Agency Fee" shall have the meaning assigned to such term in Section
2.05(b).
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the
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nearest 1/16 of 1%) equal to the greater of (a) the Prime Rate (computed on the
basis of the actual number of days elapsed over a year of 365 or 366 days, as
the case may be) in effect on such day and (b) the sum of (i) the Federal Funds
Effective Rate in effect for such day plus (ii) 1/2 of 1%. If for any reason the
Agent shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Federal Funds Effective Rate
for any reason, the Alternate Base Rate shall be determined without regard to
clause (b) of the first sentence of this definition until the circumstances
giving rise to such inability no longer exist.
"Applicable Fee Percentage" shall mean on any date the applicable
percentage set forth below based upon the Ratings:
Applicable
Fee
Percentage
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Level 1
A- or higher by S&P; and .09%
A3 or higher by Moody's
Xxxxx 0
BBB+ or higher by S&P; and .125%
Baa1 or higher by Moody's
Level 3
BBB or higher by S&P; and .15%
Baa2 or higher by Moody's
Level 4
BBB- or higher by S&P; and .1875%
Baa3 or higher by Moody's
Level 5
Lower than BBB- by S&P; and .30%
Lower than Baa3 by Moody's
For purposes of the foregoing, (i) if the Ratings in effect on any date fall in
different Levels, the Applicable Fee
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Percentage shall be determined on such date by reference to the superior
(numerically lower) Level, unless the Ratings differ by more than one Level, in
which case the applicable Level shall be the Level next below the superior
(numerically lower) of the two; (ii) if either Moody's or S&P shall not have in
effect a Rating (other than because such rating agency shall no longer be in the
business of rating corporate debt obligations), then such rating agency will be
deemed to have established a Rating in Level 5; and (iii) if any rating
established or deemed to have been established by Moody's or S&P shall be
changed (other than as a result of a change in the rating system of either
Moody's or S&P), such change shall be effective as of the day after the date on
which such change is first announced by the rating agency making such change.
Each change in the Applicable Fee Percentage shall apply to the daily unused
amount of the relevant Commitment in accordance with Section 2.05 herein during
the period commencing on the effective date of such change and ending on the
date immediately preceding the effective date of the next such change. If the
rating system of either Moody's or S&P shall change, or if either such rating
agency shall cease to be in the business of rating corporate debt obligations,
the Borrower and the Banks shall negotiate in good faith to amend the references
to specific ratings in this definition to reflect such changed rating system or
the non-availability of ratings from such rating agency.
"Applicable Margin" shall mean on any date, with respect to
Eurodollar Loans or ABR Loans, as the case may be, the applicable percentage set
forth below based upon the Ratings:
Eurodollar ABR
Loan Spread Loan Spread
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Level 1
A- or higher by S&P; and .25% 0%
A3 or higher by Moody's
Xxxxx 0
BBB+ by S&P; and .375% 0%
Baa1 by Moody's
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Eurodollar ABR
Loan Spread Loan Spread
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Level 3
BBB by S&P; and .45% 0%
Baa2 by Moody's
Level 4
BBB- by S&P; and .625% .50%
Baa3 by Moody's
Level 5
Lower than BBB- by S&P; and 1.00% .50%
Lower than Baa3 by Moody's
For purposes of the foregoing, (i) if the Ratings in effect on any date fall in
different Levels, the Applicable Margin shall be determined on such date by
reference to the superior (numerically lower) Level, unless the Ratings differ
by more than one Level, in which case the applicable Level shall be the Level
next below the superior (numerically lower) of the two; (ii) if either Moody's
or S&P shall not have in effect a Rating (other than because such rating agency
shall no longer be in the business of rating corporate debt obligations), then
such rating agency will be deemed to have established a Rating in Level 5; and
(iii) if any rating established or deemed to have been established by Moody's or
S&P shall be changed (other than as a result of a change in the rating system of
either Moody's or S&P), such change shall be effective as of the day after the
date on which such change is first announced by the rating agency making such
change. Each change in the Applicable Margin shall apply to all Eurodollar Loans
that are outstanding at any time during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next such change. If the rating system of either Moody's or S&P
shall change, or if either such rating agency shall cease to be in the business
of rating corporate debt obligations, the Borrower and the Banks shall negotiate
in good faith to amend the references to specific ratings in this definition to
reflect such changed rating system or the non-availability of ratings from such
rating agency.
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"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Bank and an assignee, and accepted by the Agent and the
Borrower, in the form of Exhibit B or such other form as shall be approved by
the Agent.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Borrowing" shall mean a group of Loans of a single Type made by the
Banks on a single date and as to which a single Interest Period is in effect.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; provided, however, that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for deal ings in dollar deposits in the
London interbank market.
"Capital Lease Obligations" of any person shall mean the obligations
of such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Closing Date" shall mean the date of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as the same may
be amended from time to time.
"Commitment" shall mean, with respect to each Bank, the commitment
of such Bank to make Loans hereunder as set forth in Section 2.01, as the same
may be reduced from time to time pursuant to Section 2.09.
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.05(a).
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"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Default" shall mean any event or condition which upon notice, lapse
of time or both would constitute an Event of Default.
"dollars" or "$" shall mean lawful money of the United States of
America.
"Environmental Law" shall mean any and all applicable present and
future treaties, laws, regulations, enforceable requirements, binding
determinations, orders, decrees, judgments, injunctions, permits, approvals,
authorizations, licenses, permissions, notices or binding agreements issued,
promulgated or entered by any Governmental Authority, relating to the
environment, preservation or reclamation of natural resources, or to the
management, release or threatened release of contaminants or noxious odor,
including the Hazardous Materials Transportation Act, Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, Solid Waste Disposal
Act, as amended by the Resource Conservation and Recovery Act of 1976 and
Hazardous and Solid Waste Amendments of 1984, Federal Water Pollution Control
Act, as amended by the Clean Water Act of 1977, Clean Air Act of 1970, as
amended, Toxic Substances Control Act of 1976, Occupational Safety and Health
Act of 1970, as amended, Emergency Planning and Community Right-to-Know Act of
1986, Safe Drinking Water Act of 1974, as amended, and any similar or
implementing state law, and all amendments or regulations promulgated there
under.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that is a member of a group of which the Borrower is a member and
which is treated as a single employer under Section 414 of the Code.
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"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate in accordance with the provisions
of Article II.
"Eurodollar Rate" shall mean, with respect to any Eurodollar Loan
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to the product of (i) the LIBO Rate in
effect for such Interest Period and (ii) Statutory Reserves. For purposes
hereof, the term "LIBO Rate" shall mean an interest rate per annum equal to the
arithmetic average (rounded upwards, if necessary, to the next 1/100 of 1%) of
rates at which dollar deposits approximately equal to the principal amount of
the portion of such Eurodollar Loan to be made by The Toronto-Dominion Bank, and
for a maturity equal to the applicable Interest Period, are offered to the
London branch of The Toronto-Dominion Bank in the London interbank market for
Eurodollars at approximately 11:00 a.m., London time, two Business Days prior to
the commencement of such Interest Period.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Expiration Date" shall mean the third anniversary of the date of
this Agreement.
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the average
of the quotations for the day of such transactions received by the Agent from
three Federal funds brokers of recognized standing selected by it.
"Fees" shall mean the Commitment Fee and the Agency Fee.
"Financial Officer" of any corporation shall mean the chief
financial officer or Treasurer of such corporation.
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"First Mortgage" shall mean the Mortgage and Deed of Trust dated as
of June 1, 1939, made by the Borrower in favor of Citibank, N.A., as successor
Trustee, as the same has been amended, modified or supplemented to date and as
the same may be further amended, modified or supplemented from time to time
hereafter.
"GAAP" shall mean generally accepted accounting principles, applied
on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantee" of or by any person shall mean any obligation,
contingent or otherwise, of such person guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
obligation of such person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (b) to purchase property, securities or
services for the purpose of assuring the owner of such Indebtedness of the
payment of such Indebtedness or (c) to maintain working capital, equity capital
or other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness; provided, however, that
the term Guarantee shall not include endorsements for collection or deposit, in
either case in the ordinary course of business.
"Indebtedness" of any person shall mean, without duplication, (a)
all obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid, (d) all obligations of such
person under conditional sale or other title retention agreements relating to
property or assets purchased by such person, (e) all obligations of such person
issued or assumed as the deferred purchase price of property or services (other
than trade payables incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contin-
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gent or otherwise, to be secured by) any Lien on property owned or acquired by
such person, whether or not the obligations secured thereby have been assumed,
but limited, if such obligations are without recourse to such person, to the
lesser of the principal amount of such Indebtedness or the fair market value of
such property, (g) all Guarantees by such person of Indebtedness of others, (h)
all Capital Lease Obligations of such person, (i) all obligations of such person
in respect of interest rate protection agreements, foreign currency exchange
agreements or other interest or exchange rate hedging arrangements (the amount
of any such obligation to be the amount that would be payable upon the
acceleration, termination or liquidation thereof) and (j) all obligations of
such person as an account party in respect of letters of credit and bankers'
acceptances. The Indebtedness of any person shall include the Indebtedness of
any partnership in which such person is a general partner.
"Interest Payment Date" shall mean, with respect to any Loan, the
last day of the Interest Period applicable to the Borrowing of which such Loan
is a part and, in the case of a Eurodollar Borrowing with an Interest Period of
more than three months' duration, each day that would have been an Interest
Payment Date had successive Interest Periods of three months' duration been
applicable to such Borrowing, and, in addition, the date of any refinancing or
conversion of such Borrowing with or to a Borrowing of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day (or, if there is no numerically corresponding day,
on the last day) in the calendar month that is 1, 2, 3 or 6 months thereafter,
as the Borrower may elect and (b) as to any ABR Borrowing, the period commencing
on the date of such Borrowing and ending on the earliest of (i) the next
succeeding March 31, June 30, September 30 or December 31, (ii) the Expiration
Date, and (iii) the date such Borrowing shall be repaid or prepaid in accordance
with Section 2.10; provided, however, that if any Interest Period would end on a
day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, in the case of a Eurodollar Borrowing only,
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next
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preceding Business Day. Interest shall accrue from and including the first day
of an Interest Period to but excluding the last day of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset and
(c) in the case of securities, any purchase option, call or similar right of a
third party with respect to such securities.
"Loans" shall mean the revolving loans made by the Banks to the
Borrower pursuant to Section 2.01. Each Loan shall be a Eurodollar Loan or an
ABR Loan.
"Loan Documents" shall mean this Agreement and the Notes.
"Margin Stock" shall have the meaning given such term under
Regulation U.
"Material Adverse Effect" shall mean an effect on the business,
assets, operations or financial condition of the Borrower and the Subsidiaries
taken as a whole which could reasonably be expected to have a material adverse
effect on the creditworthiness of the Borrower.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Notes" shall mean promissory notes of the Borrower, substantially
in the form of Exhibit A, evidencing Loans.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to and defined in ERISA.
"person" shall mean a corporation, association, partnership, trust,
organization, business, individual or government or governmental agency or
political subdivision thereof.
"Plan" shall mean any pension plan subject to the provisions of
Title IV of ERISA or Section 412 or the Code
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which is maintained for employees of the Borrower or any ERISA Affiliate.
"Prime Rate" shall mean the rate of interest per annum adopted from
time to time by The Toronto-Dominion Bank at its principal office in New York
City as its prime rate. For purposes of this Agreement, any change in the
Alternate Base Rate due to a change in the Prime Rate shall be effective on the
date such change in the Prime Rate is adopted.
"Ratings" shall refer to the ratings of Moody's and S&P applicable
to the Borrower's senior secured long-term debt obligations.
"Register" shall have the meaning given to such term in Section
9.04(d).
"Regulation D" shall mean Regulation D of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof and shall include any successor or other regulation or official
interpretation of the Board relating to reserve requirements applicable to
member banks of the Federal Reserve System.
"Regulation G" shall mean Regulation G of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Reportable Event" shall mean any reportable event as defined in
Section 4043(b) of ERISA or the regulations issued thereunder with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate which is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the
Code).
"Required Banks" shall mean, at any time, Banks holding Loans
representing at least 66-2/3% of the aggregate principal amount of the Loans
outstanding or, if no Loans
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are outstanding, Banks having Commitments representing at least 66-2/3% of the
aggregate Commitments.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"S&P" shall mean Standard & Poor's Ratings Services.
"Significant Subsidiary" shall mean a Subsidiary meeting any one of
the following conditions: (a) the investments in and advances to such Subsidiary
by the Borrower and the other Subsidiaries, if any, as at the end of the
Borrower's latest fiscal quarter exceeded 10% of the total assets of the
Borrower and its Subsidiaries at such date, computed and consolidated in
accordance with GAAP; or (b) the Borrower's and the other Subsidiaries'
proportionate share of the total assets (after intercompany eliminations) of
such Subsidiary as at the end of the Borrower's latest fiscal quarter exceeded
10% of the total assets of the Borrower and its Subsidiaries at such date,
computed and consolidated in accordance with GAAP; or (c) the equity in the
income from continuing operations before income taxes, extraordinary items and
cumulative effect of a change in accounting principle of such Subsidiary for the
period of four consecutive fiscal quarters ending at the end of the Borrower's
latest fiscal quarter exceeded 10% of such income of the Borrower and its
Subsidiaries for such period, computed and consolidated in accordance with GAAP;
or (d) such Subsidiary is the parent of one or more Subsidiaries and, together
with such Subsidiaries would, if considered in the aggregate, constitute a
Significant Subsidiary.
"Statutory Reserves" shall mean a fraction (expressed as a decimal)
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including,
without limitation, any marginal, special, emergency or supplemental reserves)
with respect to Eurodollar funding (including with respect to Eurocurrency
Liabilities as defined in Regulation D) in an amount approximately equal to the
respective Eurodollar Loan and with a term approximately equal to the Interest
Period for such Eurodollar Loan
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expressed as a decimal established by the Board or by any other United States
banking authority to which the Agent is subject. Such reserve percentages shall
include, without limitation, those imposed under Regulation D. Statutory
Reserves shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.
"subsidiary" shall mean, for any person (the "Parent"), any
corporation, partnership or other entity of which securities or other ownership
interests having by the terms thereof ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions of such
corporation, partnership or other entity (irrespective of whether or not at the
time securities or other ownership interests of any other class or classes of
such corporation, partnership or other entity shall have or might have voting
power by reason of the happening of any contingency) are at the time directly or
indirectly owned or controlled by the Parent or one or more of its subsidiaries
or by the Parent and one or more of its subsidiaries.
"Subsidiary" shall mean a subsidiary of the Borrower.
A "Subsidiary Event" shall mean the following; provided, however,
that a Subsidiary Event shall not be deemed to have occurred if the Banks have
previously consented thereto:
(a) any Significant Subsidiary shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.01(a) as if such
section applied to such Significant Subsidiary, with all references
therein to the Borrower being deemed references to such Significant
Subsidiary;
(b) any Significant Subsidiary shall fail to observe or perform any
covenant, condition or agreement in Sections 5.01(b), 5.02, 5.03 or 5.07
as if such sections applied to such Significant Subsidiary, with all
references therein to the Borrower being deemed references to such
Significant Subsidiary, and such default shall continue unremedied for a
period of 30 days after notice thereof from the Agent or any Bank to the
Borrower;
(c) any Significant Subsidiary shall:
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(i) merge into or consolidate with any other person, or permit
any other person to merge into or consolidate with it, or purchase,
lease or otherwise acquire (in one transaction or a series of
transactions) all or substantially all of the assets of any other
person (whether directly by purchase, lease or other acquisition of
all or substantially all of the assets of such person or indirectly
by purchase or other acquisition of all or substantially all of the
capital stock of such other person) other than acquisitions in the
ordinary course of such Significant Subsidiary's business, except
that if, at the time thereof and immediately after giving effect
thereto no Event of Default or Default shall have occurred and be
continuing, then (A) such Significant Subsidiary may (i) merge with
or into, or consolidate with, any Subsidiary or (ii) merge with or
into, or consolidate with, the Borrower in a transaction in which
the Borrower is the surviving corporation, (B) such Significant
Subsidiary may purchase, lease or otherwise acquire from any
Subsidiary all or substantially all of its assets and may purchase
or otherwise acquire all or substantially all of the capital stock
of any person who immediately thereafter is a Subsidiary, (C) such
Significant Subsidiary may merge with or into, or consolidate with,
any other person so long as the assets of such person at the time of
such consolidation or merger, do not exceed 10% of the total assets
of the Borrower and its Subsidiaries, after giving effect to such
merger or consolidation, computed and consolidated in accordance
with GAAP consistently applied, and (D) such Significant Subsidiary
may purchase, lease or otherwise acquire any or all of the assets of
any other person (and may purchase or otherwise acquire the capital
stock of any other person) so long as the assets being purchased,
leased or acquired (or the Significant Subsidiary's proportionate
share of the assets of the person whose capital stock is being
acquired) do not exceed 10% of the total assets of the Borrower and
its Subsidiaries, after giving effect to such acquisition, computed
and consolidated in accordance with GAAP consistently applied, or
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(ii) sell, lease, transfer, assign or other wise dispose of
(in one transaction or in a series of transactions), in any fiscal
year, assets (whether now owned or hereafter acquired) which,
together with the amount of all sales, leases, transfers,
assignments or dispositions by the Borrower permitted under Section
6.03 (other than sales, leases, transfers, assignments or other
dispositions permitted under clauses (i) through (iv) of such
Section), are in excess of 10% of the assets of the Borrower and its
Subsidiaries as of the end of the most recent fiscal year, computed
and consolidated in accordance with GAAP consistently applied,
except (A) a Significant Subsidiary may sell, lease, transfer,
assign or otherwise dispose of, in any fiscal year, assets in the
ordinary course of business which, together with the amount of all
sales, leases, transfers, assignments or dispositions in the
ordinary course permitted under Section 6.03(i), do not exceed 5% of
the assets of the Borrower and its Subsidiaries as of the end of the
most recent fiscal year, computed and consolidated in accordance
with GAAP consistently applied, (B) to the extent permitted in
clause (c)(i) above and (C) any Significant Subsidiary may sell,
lease, transfer, assign or otherwise dispose of, or create, incur,
assume or permit to exist Liens on, receivables and related
properties or interests therein;
provided, however, that, notwithstanding anything in this clause (c) to the
contrary, a Subsidiary Event shall not be deemed to have occurred and shall not
constitute an Event of Default under paragraph (k) of Article VII if, after
giving effect to the consummation of any transaction contemplated by clause
(c)(i) or (c)(ii) hereof, such Significant Subsidiary shall have or shall be
deemed to have a ratio of total long-term Indebtedness to total stockholders'
equity equal to or less than 1.5 to 1.0.
"Transactions" shall have the meaning assigned to
such term in Section 3.02.
"Type", when used in respect of any Loan or Borrowing, shall refer
to the Rate by reference to which interest on such Loan or on the Loans
comprising such
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Borrowing is determined. For purposes hereof, "Rate" shall include the
Eurodollar Rate and the Alternate Base Rate.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided,
however, that, for purposes of determining compliance with any covenant set
forth in Article VI, such terms shall be construed in accordance with GAAP as in
effect on the date of this Agreement applied on a basis consistent with the
application used in preparing the Borrower's audited financial statements
referred to in Section 3.05.
ARTICLE II. THE CREDITS
SECTION 2.01. Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Bank
agrees, severally and not jointly, to make Loans to the Borrower, at any time
and from time to time on or after the date of this Agreement, and until the
earlier of the Expiration Date and the termination of the Commitment of such
Bank in accordance with the terms hereof, in an aggregate principal amount at
any time outstanding not to exceed the Commitment set forth opposite its name in
Schedule 2.01 hereto, as the same may be reduced from time to time pursuant to
Section 2.09.
Within the limits set forth in the preceding sentence, the Borrower
may borrow, pay or prepay and reborrow Loans on or after the date of this
Agreement and prior to the Expiration Date, subject to the terms, conditions and
limitations set forth herein.
SECTION 2.02. Loans. (a) Each Loan shall be made as part of a
Borrowing consisting of Loans made by the
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Banks ratably in accordance with their Commitments; provided, however, that the
failure of any Bank to make any Loan shall not in itself relieve any other Bank
of its obligation to lend hereunder (it being understood, however, that no Bank
shall be responsible for the failure of any other Bank to make any Loan required
to be made by such other Bank). The Loans comprising each Borrowing shall be in
an aggregate principal amount which is an integral multiple of $1,000,000.
(b) Each Borrowing shall be comprised entirely of ABR Loans or
Eurodollar Loans, as the Borrower may request pursuant to Section 2.03. Each
Bank may at its option fulfill its Commitment with respect to any Eurodollar
Loan by causing any domestic or foreign branch or Affiliate of such Bank to make
such Loan; provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms of
this Agreement and the applicable Note. Borrowings of more than one Type may be
outstanding at the same time; provided, however, that the Borrower shall not be
entitled to request any Borrowing which, if made, would result in an aggregate
of more than five separate Eurodollar Loans of any Bank being outstanding
hereunder at any one time. For purposes of the foregoing, Loans having different
Interest Periods, regardless of whether they commence on the same date, shall be
considered separate Loans.
(c) Subject to paragraph (e) below, each Bank shall make a Loan in
the amount of its pro rata portion, as determined under Section 2.14, of each
Borrowing hereunder on the proposed date thereof by wire transfer of immediately
available funds to the Agent in Houston, Texas, not later than 2:00 p.m., New
York City time, and the Agent shall by 3:00 p.m., New York City time, make
available to the Borrower in immediately available funds the amounts so received
(i) by wire transfer for credit to the account of the Borrower with Seattle
First National Bank, Account Number 13972-203; ABA # 12500002-4, or (ii) as
otherwise specified by the Borrower in its notice of Borrowing or, if a
Borrowing shall not occur on such date because any condition precedent herein
specified shall not have been met, return the amounts so received to the
respective Banks. Unless the Agent shall have received notice from a Bank prior
to the date of any Borrowing that such Bank will not make available to the Agent
such Bank's portion of such Borrowing, the Agent may assume that such Bank has
made such
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portion available to the Agent on the date of such Borrowing in accordance with
this paragraph (c) and the Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the
extent that such Bank shall not have made such portion available to the Agent,
such Bank and the Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Agent at (i) in the case of the Borrower the interest
rate applicable at the time to the Loans comprising such Borrowing and (ii) in
the case of such Bank, the Federal Funds Effective Rate. If such Bank shall
repay to the Agent such corresponding amount, such amount shall constitute such
Bank's Loan as part of such Borrowing for purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the Expiration Date.
(e) The Borrower may refinance all or any part of any Borrowing with
a Borrowing of the same or a different Type, subject to the conditions and
limitations set forth in this Agreement. Any Borrowing or part thereof so
refinanced shall be deemed to be repaid or prepaid in accordance with Section
2.04 or 2.10, as applicable, with the proceeds of a new Borrowing, and the
proceeds of the new Borrowing, to the extent they do not exceed the principal
amount of the Borrowing being refinanced, shall not be paid by the Banks to the
Agent or by the Agent to the Borrower pursuant to paragraph (c) above.
SECTION 2.03. Notice of Borrowings. The Borrower shall give the
Agent written or telecopy notice (or telephone notice promptly confirmed in
writing or by telecopy) (a) in the case of a Eurodollar Borrowing, not later
than 10:00 a.m., New York City time, three Business Days before a proposed
borrowing and (b) in the case of an ABR Borrowing, not later than 12:00 (noon),
New York City time, the day of a proposed borrowing. Such notice shall be
irrevocable and shall in each case refer to this Agreement and specify (i)
whether the Borrowing then being requested is to be a Eurodollar Borrowing or an
ABR Borrowing; (ii) the date of such Borrowing (which shall be a Business Day)
and the amount thereof; and (iii) if such Borrowing is to be a
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Eurodollar Borrowing, the Interest Period with respect thereto. If no election
as to the Type of Borrowing is specified in any such notice, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period with respect to any
Eurodollar Borrowing is specified in any such notice, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration. If the
Borrower shall not have given notice in accordance with this Section 2.03 of
its election to refinance a Borrowing prior to the end of the Interest Period in
effect for such Borrowing, then the Borrower shall (unless such Borrowing is
repaid at the end of such Interest Period) be deemed to have given notice of an
election to refinance such Borrowing with an ABR Borrowing. The Agent shall
promptly advise the Banks of any notice given pursuant to this Section 2.03 and
of each Bank's portion of the requested Borrowing.
SECTION 2.04. Notes; Repayment of Loans. The Loans made by each Bank
shall be evidenced by a Note, duly executed on behalf of the Borrower, dated the
date of this Agreement, in substantially the form attached hereto as Exhibit A,
with the blanks appropriately filled, payable to the order of such Bank in a
principal amount equal to such Bank's Commitment. The outstanding principal
balance of each Loan, as evidenced by such a Note, shall be payable on the last
day of the Interest Period applicable to such Loan and on the Expiration Date.
Each Note shall bear interest from the date of the first borrowing hereunder on
the outstanding principal balance thereof as set forth in Section 2.06. Each
Bank shall, and is hereby authorized by the Borrower to, endorse on the schedule
attached to each Note delivered to such Bank (or on a continuation of such
schedule attached to such Note and made a part thereof), or otherwise to record
in such Bank's internal records, an appropriate notation evidencing the date and
amount of each Loan from such Bank, each payment and prepayment of principal of
any such Loan, each payment of interest on any such Loan and the other
information provided for on such schedule; provided, however, that any such
recordation shall be conclusive absent manifest error and the failure of any
Bank to make such a notation or any error therein shall not affect the
obligation of the Borrower to repay the Loans made by such Bank in accordance
with the terms of this Agreement and the applicable Notes.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each Bank,
through the Agent, on the first day of
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January, April, July and October, in each year, and on the date on which the
Commitment of such Bank shall be terminated as provided herein, a commitment
fee (a "Commitment Fee") on the average daily unused amount of the Commitment of
such Bank during the preceding quarter (or shorter period commencing with the
date hereof or ending with the Expiration Date or the date on which the
Commitment of such Bank shall be terminated). The Commitment Fees shall accrue
on each day at a rate per annum equal to the Applicable Fee Percentage in effect
on such day. All Commitment Fees shall be computed on the basis of the actual
number of days elapsed in a year of 365 or 366 days, as appropriate. The
Commitment Fee due to each Bank shall commence to accrue on the date of this
Agreement and shall cease to accrue on the date on which the Commitment of such
Bank shall be terminated as provided herein.
(b) The Borrower agrees to pay to the Agent, for its own account,
the fee set forth in the fee letter dated July 22, 1997, between the Agent and
the Borrower, at the times set forth therein (the "Agency Fee").
(c) All Fees shall be paid on the dates due, in immediately
available funds, to the Agent for distribution, if and as appropriate, among the
Banks. Once paid, none of the Fees shall be refundable under any circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of
Section 2.07, the Loans comprising each ABR Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 365
or 366 days, as the case may be) at a rate per annum equal to the Alternate Base
Rate plus the Applicable Margin.
(b) Subject to the provisions of Section 2.07, the Loans comprising
each Eurodollar Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate per annum equal
to the Eurodollar Rate for the Interest Period in effect for such Borrowing plus
the Applicable Margin.
(c) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The applicable Alternate Base Rate or Eurodollar Rate for each Interest Period
or day within an Interest Period, as the case may be,
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shall be determined by the Agent, and such determination shall be conclusive
absent manifest error.
SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, the Borrower shall on demand from
time to time pay interest, to the extent permitted by law, on such defaulted
amount up to (but not including) the date of actual payment (after as well as
before judgment) at a rate per annum (computed on the basis of the actual number
of days elapsed over a year of 360 days) equal to the Alternate Base Rate plus
the Applicable Margin plus 2%.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Agent shall have in good faith
determined that dollar deposits in the principal amounts of the Loans comprising
such Borrowing are not generally available in the London interbank market, or
that the rates at which such dollar deposits are being offered will not
adequately and fairly reflect the cost to the majority in interest of the Banks
of making or maintaining their Eurodollar Loans during such Interest Period, or
that reasonable means do not exist for ascertaining the Eurodollar Rate, the
Agent shall, as soon as practicable thereafter, give written or telecopy notice
of such determination to the Borrower and the Banks. In the event of any such
determination, any request by the Borrower for a Eurodollar Borrowing pursuant
to Section 2.03 shall, until the Agent shall have advised the Borrower and the
Banks that the circumstances giving rise to such notice no longer exist, be
deemed to be a request for an ABR Borrowing. Each determination by the Agent
hereunder shall be conclusive absent manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) The
Commitments shall be automatically terminated on the Expiration Date.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Agent, the Borrower may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the unused portion
of the Commitments; provided, however, that each partial reduction of the
Commitments shall be in an integral multiple of $1,000,000.
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(c) Each reduction in the Commitments hereunder shall be made
ratably among the Banks in accordance with their respective applicable
Commitments. The Borrower shall pay to the Agent for the account of the Banks,
on the date of each termination or reduction, the Commitment Fees on the amount
of the Commitments so terminated or reduced accrued through the date of such
termination or reduction.
SECTION 2.10. Prepayment. (a) The Borrower shall have the right at
any time and from time to time to prepay any Borrowing, in whole or in part,
upon at least three Business Days' prior written or telecopy notice (or
telephone notice promptly confirmed by written or telecopy notice) to the Agent;
provided, however, that each partial prepayment shall be in an amount which is
an integral multiple of $1,000,000.
(b) On the date of any termination or reduction of the Commitments
pursuant to Section 2.09, the Borrower shall pay or prepay so much of the
Borrowings as shall be necessary in order that the aggregate principal amount of
the Loans outstanding will not exceed the aggregate Commitments after giving
effect to such termination or reduction.
(c) Each notice of prepayment shall specify the prepayment date and
the principal amount of each Borrowing (or portion thereof) to be prepaid, shall
be irrevocable and shall commit the Borrower to prepay such Borrowing by the
amount stated therein on the date stated therein. All prepayments under this
Section 2.10 shall be subject to Section 2.13 but otherwise without premium or
penalty. All prepayments under this Section 2.10 shall be accompanied by accrued
interest on the principal amount being prepaid to the date of payment.
SECTION 2.11. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision herein, if after the date of this Agreement
there is adopted any new law, rule or regulation or any change in applicable law
or regulation or in the interpretation or administration thereof by any
governmental authority charged with the interpretation or administration thereof
(whether or not having the force of law) which shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of or credit extended by such Bank (except
any such reserve requirement which is reflected in the Eurodollar
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Rate) or shall impose on such Bank or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Bank, and
the result of any of the foregoing shall be to increase the cost to such Bank of
making or maintaining any Eurodollar Loan or to reduce the amount of any sum
received or receivable by such Bank hereunder or under the Notes (whether of
principal, interest or otherwise) in respect of Eurodollar Loans by an amount
deemed by such Bank to be material, then the Borrower will pay to such Bank upon
demand such additional amount or amounts as will compensate such Bank for such
additional costs incurred or reduction suffered.
(b) If any Bank shall have determined that the applicability of any
law, rule, regulation, agreement or guideline adopted after the date hereof
regarding capital adequacy, or any change in any of the foregoing or the
adoption after the date hereof of any change in any law, rule, regulation,
agreement or guideline existing on the date hereof or in the interpretation or
administration of any of the foregoing by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or any lending office of such Bank) or any
Bank's holding company with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Bank's capital or on the capital of such Bank's holding company, if any,
as a consequence of this Agreement or the Loans made by such Bank pursuant
hereto to a level below that which such Bank or such Bank's holding company
could have achieved but for such applicability, adoption, change or compliance
(taking into consideration such Bank's policies and the policies of such Bank's
holding company with respect to capital adequacy) by an amount deemed by such
Bank to be material, then from time to time the Borrower shall pay to such Bank
such additional amount or amounts as will compensate such Bank or such Bank's
holding company for any such reduction suffered.
(c) A certificate of each Bank setting forth in reasonable detail
such amount or amounts as shall be necessary to compensate such Bank or its
holding company as specified in paragraph (a) or (b) above, as the case may be,
and the manner in which such Bank has determined the same, shall be delivered to
the Borrower and shall be conclusive
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absent manifest error. The Borrower shall pay each Bank the amount shown as due
on any such certificate delivered by it within 10 days after its receipt of the
same.
(d) Failure on the part of any Bank to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital with respect to any period shall not constitute a waiver of
such Bank's right to demand compensation with respect to such period or any
other period. The protection of this Section shall be available to each Bank
regardless of any possible contention of the invalidity or inapplicability of
the law, rule, regulation, guideline or other change or condition which shall
have occurred or been imposed.
SECTION 2.12. Change in Legality. (a) Notwithstanding any other
provision herein, if any change in, or adoption of, any law or regulation or in
the interpretation thereof by any governmental authority charged with the
administration or interpretation thereof shall make it unlawful for any Bank to
make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written notice
to the Borrower and to the Agent, such Bank may:
(i) declare that Eurodollar Loans will not there after be made by
such Bank hereunder, whereupon any request by the Borrower for a
Eurodollar Borrowing shall, as to such Bank only, be deemed a request for
an ABR Loan unless such declaration shall be subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall be
automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below.
In the event any Bank shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Bank or the
converted Eurodollar Loans of such Bank shall instead be applied to repay the
ABR Loans made by such Bank in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
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(b) For purposes of this Section 2.12, a notice to the Borrower by
any Bank shall be effective as to each Eurodollar Loan, if lawful, on the last
day of the Interest Period currently applicable to such Eurodollar Loan.
SECTION 2.13. Indemnity. The Borrower shall indemnify each Bank
against any loss or expense which such Bank may sustain or incur as a
consequence of (a) any failure by the Borrower to fulfill on the date of any
Eurodollar Borrowing hereunder the applicable conditions set forth in Article
IV, (b) any failure by the Borrower to borrow or to refinance any Eurodollar
Loan hereunder after irrevocable notice of such borrowing or refinancing has
been given pursuant to Section 2.03, (c) any payment or prepayment of a
Eurodollar Loan required by any other provision of this Agreement or otherwise
made or deemed made on a date other than the last day of the Interest Period
applicable thereto or (d) any default in payment or prepayment of the principal
amount of any Eurodollar Loan or any part thereof or interest accrued thereon,
as and when due and payable (at the due date thereof, whether by scheduled
maturity, acceleration, irrevocable notice of prepayment or otherwise)
including, in each such case, any loss or reasonable expense sustained or
incurred or to be sustained or incurred in liquidating or employing deposits
from third parties acquired to effect or maintain such Loan or any part thereof
as a Eurodollar Loan. Such loss or reasonable expense shall include an amount
equal to the excess, if any, as reasonably determined by such Bank, of (i) its
cost of obtaining the funds for the Eurodollar Loan being paid, prepaid,
converted or not borrowed (assumed to be the Eurodollar Rate applicable
thereto) for the period from the date of such payment, prepayment, conversion or
failure to borrow to the last day of the Interest Period for such Loan (or, in
the case of a failure to borrow, the Interest Period for such Eurodollar Loan
which would have commenced on the date of such failure) over (ii) the amount of
interest (as reasonably determined by such Bank) that would be realized by such
Bank in reemploying the funds so paid, prepaid or not borrowed for such period
or Interest Period, as the case may be. A certificate of any Bank setting forth
any amount or amounts which such Bank is entitled to receive pursuant to this
Section, and the manner in which such Bank has determined the same, shall be
delivered to the Borrower and shall be conclusive absent manifest error.
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SECTION 2.14. Pro Rata Treatment. Except as required under Section
2.12, each Borrowing, each payment or prepayment of principal of any Borrowing,
each payment of interest on the Loans, each payment of the Commitment Fees, each
reduction of the Commitments and each refinancing of any Borrowing with a
Borrowing of any Type shall be allocated pro rata among the Banks in accordance
with their respective applicable Commitments (or, if such Commitments shall have
expired or been terminated, in accordance with the respective principal amounts
of their outstanding Loans). Each Bank agrees that in computing such Bank's
portion of any Borrowing to be made hereunder, the Agent may, in its discretion,
round each Bank's percentage of such Borrowing, computed in accordance with
Section 2.01, to the next higher or lower whole dollar amount.
SECTION 2.15. Sharing of Setoffs. Each Bank agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Bank under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Loan or Loans as a result
of which the unpaid principal portion of its Loans shall be proportionately less
than the unpaid principal portion of the Loans of any other Bank, it shall be
deemed simultaneously to have purchased from such other Bank at face value, and
shall promptly pay to such other Bank the purchase price for, a participation in
the Loans of such other Bank, so that the aggregate unpaid principal amount of
the Loans and participations in Loans held by each Bank shall be in the same
proportion to the aggregate unpaid principal amount of all Loans then out
standing as the principal amount of its Loans prior to such exercise of banker's
lien, setoff or counterclaim or other event was to the principal amount of all
Loans outstanding prior to such exercise of banker's lien, setoff or counter-
claim or other event; provided, however, that, if any such purchase or purchases
or adjustments shall be made pursuant to this Section and the payment giving
rise thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the purchase
price or prices or adjustment restored without interest. The Borrower expressly
consents to the foregoing arrangements and agrees that any Bank holding a
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participation in a Loan deemed to have been so purchased may exercise any and
all rights of banker's lien, setoff or counterclaim with respect to any and all
moneys owing by the Borrower to such Bank by reason thereof as fully as if such
Bank had made a Loan directly to the Borrower in the amount of such
participation.
SECTION 2.16. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder and under any other Loan Document not later than 12:00
(noon), New York City time, on the date when due in dollars to the Agent at its
offices at 000 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx, in immediately available
funds.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.17. Taxes. (a) Any and all payments by the Borrower
hereunder shall be made, in accordance with Section 2.16, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding taxes imposed on the net income of the Agent or any Bank (or any
transferee or assignee thereof, including a participation holder (any such
entity being called a "Transferee")) and franchise taxes imposed on the Agent or
any Bank (or Transferee) by the United States or any jurisdiction under the laws
of which the Agent or any such Bank (or Transferee) or the applicable lending
office is organized or any political subdivision thereof (all such nonexcluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder to the Banks
(or any Transferee) or the Agent, (i) the sum payable shall be increased by the
amount necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.17) such
Bank (or Transferee) or the Agent (as the case may be) shall receive an amount
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equal to the sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant taxing authority or other Governmental
Authority in accordance with applicable law; provided, however, that no
Transferee of any Bank shall be entitled to receive any greater payment under
this paragraph (a) than such Bank would have been entitled to receive with
respect to the rights assigned, participated or otherwise transferred unless
such assignment, participation or transfer shall have been made at a time when
the circumstances giving rise to such greater payment did not exist.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Bank (or Transferee) and the
Agent for the full amount of Taxes and Other Taxes paid by such Bank (or
Transferee) or the Agent, as the case may be, and any liability (including
penalties, interest and reasonable expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted by the relevant taxing authority or other Governmental Authority. Such
indemnification shall be made within 30 days after the date any Bank (or
Transferee) or the Agent, as the case may be, makes written demand therefor. If
a Bank (or Transferee) or the Agent shall become aware that it is entitled to
receive a refund in respect of Taxes or Other Taxes as to which it has been
indemnified by the Borrower pursuant to this Section 2.17, it shall promptly
notify the Borrower of the availability of such refund and shall, within 30 days
after receipt of a request by the Borrower, apply for such refund at the
Borrower's expense. If any Bank (or Transferee) or the Agent receives a refund
in respect of any Taxes or Other Taxes as to which it has been indemnified by
the Borrower pursuant to this Section 2.17, it shall promptly notify the
Borrower of such refund and shall repay such refund to the Borrower (to the
extent of amounts that have been paid by the Borrower under this Section 2.17
with respect to such refund) within 30 days (or promptly upon receipt, if the
Borrower has requested application for such refund pursuant
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hereto), net of all out-of-pocket expenses of such Bank and without interest;
provided that the Borrower, upon the request of such Bank (or Transferee) or the
Agent, agrees to return such refund (plus penalties, interest or other charges)
to such Bank (or Transferee) or the Agent in the event such Bank (or Transferee)
or the Agent is required to repay such refund. Nothing contained in this
paragraph (c) shall require any Bank (or Transferee) or the Agent to make
available any of its tax returns (or any other information relating to its taxes
which it deems to be confidential); provided that Borrower, at its expense,
shall have the right to receive an opinion from a firm of independent public
accountants of recognized national standing acceptable to the Borrower that the
amount due hereunder is correctly calculated.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes withheld by the Borrower in respect of any payment to any Bank (or
Transferee) or the Agent, the Borrower will furnish to the Agent, at its address
referred to in Section 9.01, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.17
shall survive the payment in full of the principal of and interest on all Loans
made hereunder.
(f) On or prior to the execution of this Agreement and on or before
the transfer to a Transferee, the Agent shall notify the Borrower of each Bank's
(or Transferee's) address. On or prior to the Banks' (or Transferee's) first
Interest Payment Date, and from time to time as required by law, each Bank (or
Transferee) that is organized under the laws of a jurisdiction outside the
United States shall, if legally able to do so, deliver to the Borrower and the
Agent such certificates, documents or other evidence, as required by the Code or
Treasury Regulations issued pursuant thereto, including Internal Revenue Service
Form 1001 or Form 4224 and any other certificate or statement of exemption
required by Treasury Regulation Section 1.1441-1, 1.1441-4 or 1.1441-6(c) or any
subsequent version thereof or successors thereto, properly completed and duly
executed by such Bank (or Transferee) establishing that such payment is (i) not
subject to United States Federal withholding tax under the Code because such
payment
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is effectively connected with the conduct by such Bank (or Transferee) of a
trade or business in the United States or (ii) totally exempt from United States
Federal withholding tax, or subject to a reduced rate of such tax under a
provision of an applicable tax treaty. Unless the Borrower and the Agent have
received forms or other documents satisfactory to them indicating that such
payments hereunder or under the Notes are not subject to United States Federal
withholding tax or are subject to such tax at a rate reduced by an applicable
tax treaty, the Borrower shall withhold taxes from such payments at the
applicable statutory rate.
(g) The Borrower shall not be required to pay any additional amounts
to any Bank (or Transferee) in respect of United States Federal withholding tax
pursuant to paragraph (a) above if the obligation to pay such additional
amounts would not have arisen but for a failure by such Bank (or Transferee) to
comply with the provisions of paragraph (f) above; provided, however, that the
Borrower shall be required to pay those amounts to any Bank (or Transferee) that
it was required to pay hereunder prior to the failure of such Bank (or
Transferee) to comply with the provisions of such paragraph (f).
SECTION 2.18. Termination or Assignment of Commitments Under Certain
Circumstances. (a) Any Bank (or Transferee) claiming any additional amounts
payable pursuant to Section 2.11 or Section 2.17 or exercising its rights under
Section 2.12 shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document requested by the Borrower or
to change the jurisdiction of its applicable lending office if the making of
such a filing or change would avoid the need for or reduce the amount of any
such additional amounts which may thereafter accrue or avoid the circumstances
giving rise to such exercise and would not, in the sole determination of such
Bank, be otherwise disadvantageous to such Bank (or Transferee).
(b) In the event that any Bank shall have delivered a notice or
certificate pursuant to Section 2.11 or 2.12, or the Borrower shall be required
to make additional payments under Section 2.17 to any Bank (or Transferee) or to
the Agent with respect to any Bank (or Transferee), the Borrower shall have the
right, at its own expense, upon notice to such Bank (or Transferee) and the
Agent, (a) to terminate the Commitment of such Bank (or Transferee) or
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(b) to require such Bank (or Transferee) to transfer and assign without recourse
(in accordance with and subject to the restrictions contained in Section 9.04)
all its interests, rights and obligations under this Agreement to another
financial institution which shall assume such obligations; provided that (i) no
such termination or assignment shall conflict with any law, rule or regulation
or order of any Governmental Authority and (ii) the Borrower or the assignee, as
the case may be, shall pay to the affected Bank (or Transferee) in immediately
available funds on the date of such termination or assignment the principal of
and interest accrued to the date of payment on the Loans made by it hereunder
and all other amounts accrued for its account or owed to it hereunder.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each of the Banks that:
SECTION 3.01. Organization; Powers. Each of the Borrower and the
Significant Subsidiaries (a) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, (b)
has all requisite power and authority to own its property and assets and to
carry on its business as now con ducted and as proposed to be conducted, (c) is
qualified to do business in every jurisdiction where such qualification is
required, except where the failure so to qualify would not result in a Material
Adverse Effect, and (d) in the case of the Borrower, has the corporate power and
authority to execute, deliver and perform its obligations under each of the Loan
Documents and each other agreement or instrument contemplated thereby to which
it is or will be a party and to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance
by the Borrower of each of the Loan Documents and the borrowings hereunder
(collectively, the "Transactions") (a) have been duly authorized by all
requisite corporate and, if required, stockholder action and (b) will not (i)
violate (A) any provision of law, statute, rule or regulation the violation of
which could reasonably be expected to impair the validity and enforceability of
this Agreement or any other Loan Document or materially impair the rights of or
benefits available to the Banks
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under the Loan Documents, or of the certificate or articles of incorporation or
other constitutive documents or by-laws of the Borrower or any Significant
Subsidiary, (B) any order of any Governmental Authority the violation of which
could reasonably be expected to impair the validity or enforce ability of this
Agreement or any other Loan Document, or materially impair the rights of or
benefits available to the Banks under the Loan Documents, or (C) any provision
of any indenture or other material agreement or instrument evidencing or
relating to borrowed money to which the Borrower or any Significant Subsidiary
is a party or by which any of them or any of their property is or may be bound
in a manner which could reasonably be expected to impair the validity and
enforceability of this Agreement or any other Loan Document or materially impair
the rights of or benefits available to the Banks under the Loan Documents, (ii)
be in conflict with, result in a breach of or constitute (alone or with notice
or lapse of time or both) a default under any such indenture, agreement or other
instrument in a manner which could reasonably be expected to impair the validity
and enforceability of this Agreement or any other Loan Document or materially
impair the rights of or benefits available to the Banks under the Loan Documents
or (iii) result in the creation or imposition under any such indenture,
agreement or other instrument of any Lien upon or with respect to any property
or assets now owned or hereafter acquired by the Borrower.
SECTION 3.03. Enforceability. This Agreement has been duly executed
and delivered by the Borrower and constitutes, and each other Loan Document
when executed and delivered by the Borrower will constitute, a legal, valid and
binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms.
SECTION 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except
such as have been made or obtained and are in full force and effect.
SECTION 3.05. Financial Statements. The Borrower has heretofore
furnished to the Banks its consolidated balance sheets and statements of income
and statements of cash flow as of and for the fiscal year ended December 31,
1996, audited by and accompanied by the opinion of Deloitte & Touche,
independent public accountants. Such financial
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statements present fairly the financial condition and results of operations of
the Borrower and its consolidated subsidiaries as of such dates and for such
periods. Such balance sheets and the notes thereto, together with the Borrower's
Annual Report on Form 10-K for the fiscal year ended December 31, 1996, reflect
all liabilities, direct or contingent, of the Borrower and its consolidated
Subsidiaries as of the dates thereof which are material on a consolidated
basis. Such financial statements were prepared in accordance with GAAP applied
(except as noted therein) on a consistent basis.
SECTION 3.06. No Material Adverse Change. Except as disclosed in the
Borrower's Annual Report on Form 10-K for the fiscal year ended December 31,
1996 and in the Borrower's Form 10-Q for the fiscal quarter ended March 31,
1997, there has been no change in the business, assets, operations or financial
condition of the Borrower and the Subsidiaries, taken as a whole, since December
31, 1996, which could reasonably be expected to have a material adverse effect
on the creditworthiness of the Borrower.
SECTION 3.07. Litigation; Compliance with Laws. (a) Except as set
forth in the Annual Report of the Borrower on Form 10-K for the year ended
December 31, 1996, or in any document filed prior to the date of this Agreement
pursuant to Sections 13(a), 14 or 15(d) of the Securities Exchange Act of 1934,
there are not any actions, suits or proceedings at law or in equity or by or
before any Governmental Authority now pending or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any Subsidiary or any
business, property or rights of any such person (i) which involve any Loan
Document or the Transactions or (ii) which could reasonably be anticipated,
individually or in the aggregate, to result in a Material Adverse Effect.
(b) Neither the Borrower nor any of the Subsidiaries is in
violation of any law, rule or regulation, or in default with respect to any
judgment, writ, injunction or decree of any Governmental Authority, where such
violation or default would be reasonably likely to result in a Material Adverse
Effect.
SECTION 3.08. Federal Reserve Regulations. (a) Neither the Borrower
nor any of the Subsidiaries is engaged principally, or as one of its important
activities,
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in the business of extending credit for the purpose of purchasing or carrying
Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately,
(i) to purchase or carry Margin Stock or to extend credit to others for the
purpose of purchasing or carrying Margin Stock or to refund indebtedness
originally incurred for such purpose, or (ii) for any purpose which entails a
violation of, or which is inconsistent with, the provisions of the Regulations
of the Board, including Regulation G, U or X.
SECTION 3.09. Investment Company Act; Public Utility Holding Company
Act. The Borrower is not (a) an "investment company" as defined in, or subject
to regulation under, the Investment Company Act of 1940 or (b) subject to
regulation as a "holding company" under the Public Utility Holding Company Act
of 1935.
SECTION 3.10. Use of Proceeds. The Borrower will use the proceeds of
the Loans only for the purposes specified in the preamble to this Agreement.
SECTION 3.11. No Material Misstatements. No information, report,
financial statement, exhibit or schedule furnished by or on behalf of the
Borrower to the Agent or any Bank in connection with the negotiation of any Loan
Document or included therein or delivered pursuant thereto contained, contains
or will contain any material misstatement of fact or, when considered together
with all reports theretofore filed with the Securities and Exchange Commission,
omitted, omits or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were, are
or will be made, not misleading.
SECTION 3.12. Employee Benefit Plans. Each of the Borrower and its
ERISA Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the regulations and published interpretations
thereunder. No Reportable Event has occurred as to which the Borrower or any
ERISA Affiliate was required to file a report with the PBGC, and the present
value of all benefit liabilities under each Plan (based on those assumptions
used to fund such Plan) did not, as of the last annual valuation
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date applicable thereto, exceed by more than $10,000,000 the value of the assets
of such Plan.
SECTION 3.13. Environmental and Safety Matters. Each of the Borrower
and each Subsidiary has complied with all Federal, state, local and other
statutes, ordinances, orders, judgments, rulings and regulations relating to
environmental pollution or to environmental or nuclear regulation or control or
to employee health or safety, except where noncompliance would not be reasonably
likely to result in a Material Adverse Effect. Neither the Borrower nor any
Subsidiary has received notice of any failure so to comply, except where
noncompliance would not be reasonably likely to result in a Material Adverse
Effect. The Borrower's and the Subsidiaries' plants do not manage any hazardous
wastes, hazardous substances, hazardous materials, toxic substances, toxic
pollutants or substances similarly denominated, as those terms or similar terms
are used in the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response Compensation and Liability Act, the Hazardous Materials
Transportation Act, the Toxic Substance Control Act, the Clean Air Act, the
Clean Water Act or any other applicable law relating to environmental pollution
or employee health and safety, or any nuclear fuel or other radioactive
materials, in violation of any law or any regulations promulgated pursuant
thereto, where such violation would be reasonably likely to result in a
Material Adverse Effect. The Borrower is aware of no events, conditions or
circumstances involving environmental pollution or contamination or employee
health or safety that could reasonably be expected to result in a Material
Adverse Effect. The representations and warranties set forth in this Section
3.13 are, however, subject to any matters, circumstances or events set forth in
the Borrower's Annual Report on Form 10-K for the fiscal year ended December 31,
1996 and in the Borrower's Form 10-Q for the fiscal quarter ended March 31,
1997; provided, however, that the inclusion of such matters, circumstances or
events as exceptions (or any other exceptions contained in the representations
and warranties which refer to the Borrower's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996 or the Borrower's Form 10-Q for the fiscal
quarter ended March 31, 1997) shall not be construed to mean that the Borrower
has concluded that any such matter, circumstance or effect is likely to result
in a Material Adverse Effect.
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SECTION 3.14. Significant Subsidiaries. Schedule 3.14 sets forth as
of the date hereof a list of all Significant Subsidiaries of the Borrower and
the percentage owner ship interest of the Borrower therein.
ARTICLE IV. CONDITIONS OF LENDING
The obligations of the Banks to make Loans here under are subject to
the satisfaction of the following conditions:
SECTION 4.01. All Borrowings. On the date of
each Borrowing, including each Borrowing in which Loans are
refinanced with new Loans as contemplated by Section 2.02(e):
(a) The Agent shall have received a notice of such Borrowing as
required by Section 2.03.
(b) The representations and warranties set forth in Article III
hereof (except, in the case of a refinancing that does not increase the
aggregate principal amount of Loans outstanding, the representations set
forth in Sections 3.06 and 3.07) shall be true and correct in all material
respects on and as of the date of such Borrowing with the same effect as
though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date.
(c) The Borrower shall be in compliance with all the terms and
provisions set forth herein and in each other Loan Document on its part to
be observed or performed, and at the time of and immediately after such
Borrowing no Event of Default or Default shall have occurred and be
continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date of such Borrowing as to the matters specified in
paragraphs (b) and (c) of this Section 4.01.
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SECTION 4.02. First Borrowing. On the date of this Agreement:
(a) Each Bank shall have received a duly executed Note complying
with the provisions of Section 2.04.
(b) The Agent shall have received favorable written opinions of (i)
Paine, Hamblen, Xxxxxx, Xxxxxx & Xxxxxx, general counsel for the Borrower,
and (ii) Xxxx & Priest, special counsel to the Borrower, each dated the
date of this Agreement and addressed to the Banks, to the effect set forth
in Exhibits D-1 and D-2 hereto, and the Borrower hereby instructs such
counsel to deliver such opinions to the Agent.
(c) The Agent shall have received evidence satisfactory to it and
set forth on Schedule 4.02(c) that the Borrower shall have obtained all
consents and approvals of, and shall have made all filings and
registrations with, any Governmental Authority required in order to
consummate the Transactions, in each case without the imposition of any
condition which, in the judgment of the Banks, could adversely affect
their rights or interests hereunder.
(d) All legal matters incident to this Agreement and the borrowings
hereunder shall be satisfactory to the Banks and their counsel and to
Cravath, Swaine & Xxxxx, counsel for the Agent.
(e) The Agent shall have received (i) a copy of the certificate or
articles of incorporation, including all amendments thereto, of the
Borrower, certified as of a recent date by the Secretary of State of the
state of its organization, and a certificate as to the good standing of
the Borrower as of a recent date, from such Secretary of State; (ii) a
certificate of the Secretary or Assistant Secretary of the Borrower dated
the Closing Date and certifying (A) that attached thereto is a true and
complete copy of the by-laws of the Borrower as in effect on the Closing
Date and at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the Board of Directors of the
Borrower authorizing the execution, delivery and performance of the Loan
Documents and the borrowings hereunder, and
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that such resolutions have not been modified, rescinded or amended and are
in full force and effect, (C) that the certificate or articles of
incorporation of the Borrower have not been amended since the date of the
last amendment thereto shown on the certificate of good standing furnished
pursuant to clause (i) above, and (D) as to the incumbency and specimen
signature of each officer executing any Loan Document or any other
document delivered in connection herewith on behalf of the Borrower; (iii)
a certificate of another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the
certificate pursuant to (ii) above; and (iv) such other documents as the
Banks or their counsel or Cravath, Swaine & Xxxxx, counsel for the Agent,
may reasonably request.
(f) The Agent shall have received a certificate, dated the Closing
Date and signed by a Financial Officer of the Borrower, confirming
compliance with the conditions precedent set forth in paragraphs (b) and
(c) of Section 4.01.
(g) The Agent shall have received all Fees and other amounts due and
payable on or prior to the date of this Agreement.
ARTICLE V. AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Bank that so long as
this Agreement shall remain in effect or the principal of or interest on any
Loan, any Fees or any other expenses or amounts payable under any Loan Document
shall be unpaid, unless the Required Banks shall otherwise consent in writing,
the Borrower will:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause
to be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.02.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
utilized in the conduct of the Borrower's business
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except where the failure so to obtain, preserve, renew, extend or maintain any
of the foregoing would not result in a Material Adverse Effect; maintain and
operate such business in substantially the manner in which it is presently
conducted and operated, except as otherwise expressly permitted under this
Agreement; comply in all material respects with all applicable laws, rules,
regulations and orders of any Governmental Authority, whether now in effect or
hereafter enacted if failure to comply with such requirements would result in a
Material Adverse Effect; and at all times maintain and preserve all property
material to the conduct of such business and keep such property in good repair,
working order and condition and from time to time make, or cause to be made, all
needful and proper repairs, renewals, additions, improvements and replacements
thereto necessary in order that the business carried on in connection therewith
may be properly conducted at all times; provided, however, that the Borrower may
cause the discontinuance of the operation or a reduction in the capacity of any
of its facilities, or any element or unit thereof including, without limitation,
real and personal properties, facilities, machinery and equipment, (i) if, in
the judgment of the Borrower, it is no longer advisable to operate the same, or
to operate the same at its former capacity, and such discontinuance or reduction
would not result in a Material Adverse Effect, or (ii) if the Borrower intends
to sell and dispose of its interest in the same in accordance with the terms of
this Agreement and within a reasonable time shall endeavor to effectuate the
same.
SECTION 5.02. Insurance. (a) Maintain insurance, to such extent and
against such risks, as is customary with companies in the same or similar
businesses and owning similar properties in the same general area in which the
Borrower operates and (b) maintain such other insurance as may be required by
law. All insurance required by this Section 5.02 shall be maintained with
financially sound and reputable insurers or through self-insurance; provided,
however, that the portion of such insurance constituting self-insurance shall be
comparable to that usually maintained by companies engaged in the same or
similar businesses and owning similar properties in the same general area in
which the Borrower operates and the reserves maintained with respect to such
self-insured amounts are deemed adequate by the officer or officers of the
Borrower responsible for insurance matters.
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SECTION 5.03. Taxes and Obligations. Pay and discharge promptly when
due all taxes, assessments and governmental charges or levies imposed upon it or
upon its income or profits or in respect of its property, before the same shall
become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise which, if unpaid, might give rise to a Lien
upon such properties or any part thereof; provided, however, that (i) such
payment and discharge shall not be required with respect to any such tax,
assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and the Borrower
shall, to the extent required by GAAP, have set aside on its books adequate
reserves with respect thereto and (ii) the Borrower shall be permitted to fail
to pay any amounts secured by the non-consensual equitable Lien of The Chase
Manhattan Bank, successor by merger to Chemical Bank, as bond trustee for
Washington Public Power Supply Systems Projects 4 and 5 permitted under Section
6.01(y), which Lien shall not exceed $25 million, excluding interest, and may
permit the foreclosure of such Lien by The Chase Manhattan Bank.
SECTION 5.04. Financial Statements, Reports, etc.
Furnish to the Agent and each Bank:
(a) within 105 days after the end of each fiscal year, its
consolidated and consolidating balance sheets and related statements of
income and statements of cash flow, showing the financial condition of the
Borrower and its consolidated Subsidiaries as of the close of such fiscal
year and the results of its operations and the operations of such
Subsidiaries during such year, all audited by Deloitte & Touche or other
independent public accountants of recognized national standing acceptable
to the Required Banks and accompanied by an opinion of such accountants
(which shall not be qualified in any material respect) to the effect that
such consolidated financial statements fairly present the financial
condition and results of operations of the Borrower on a consolidated
basis (except as noted therein) in accordance with GAAP consistently
applied;
(b) within 50 days after the end of each of the first three fiscal
quarters of each fiscal year, its consolidated and, to the extent
otherwise available, consolidating balance sheets and related statements
of
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income and statements of cash flow, showing the financial condition of
the Borrower and its consolidated subsidiaries as of the close of such
fiscal quarter and the results of its operations and the operations of
such subsidiaries during such fiscal quarter and the then elapsed portion
of the fiscal year, all certified by one of its Financial Officers as
fairly presenting the financial condition and results of operations of the
Borrower on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under (a)
or (b) above, a certificate of the relevant accounting firm opining on or
certifying such statements or Financial Officer (which certificate, when
furnished by an accounting firm, may be limited to accounting matters and
disclaim responsibility for legal interpretations) certifying that to the
knowledge of the accounting firm or the Financial Officer, as the case may
be, no Event of Default or Default has occurred or, if such an Event of
Default or Default has occurred, specifying the nature and extent thereof
and any corrective action taken or proposed to be taken with respect
thereto;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
it with the Securities and Exchange Commission, or any governmental
authority succeeding to any of or all the functions of said Commission, or
with any national securities exchange, or distributed to its share
holders, as the case may be; and
(e) promptly, from time to time, such other information regarding
the operations, business affairs and financial condition of the Borrower
or any Significant Subsidiary, or compliance with the terms of any Loan
Document, as the Agent or any Bank may reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the Agent and
each Bank prompt written notice of the following:
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(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) proposed to be taken
with respect thereto;
(b) the filing or commencement of, or any written threat or notice
of intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any Governmental
Authority, against the Borrower or any Subsidiary thereof which could
reasonably be anticipated to result in a Material Adverse Effect; and
(c) any development that has resulted in, or could reasonably be
anticipated to result in, a Material Adverse Effect.
SECTION 5.06. ERISA. (a) Comply in all material respects with the
applicable provisions of ERISA and (b) furnish to the Agent and each Bank (i) as
soon as possible, and in any event within 30 days after any Responsible Officer
of the Borrower or any ERISA Affiliate either knows or has reason to know that
any Reportable Event has occurred that alone or together with any other
Reportable Event could reasonably be expected to result in liability of the
Borrower to the PBGC in an aggregate amount exceeding $10,000,000, a statement
of a Financial Officer setting forth details as to such Reportable Event and the
action proposed to be taken with respect thereto, together with a copy of the
notice, if any, of such Reportable Event given to the PBGC, (ii) promptly after
receipt thereof, a copy of any notice the Borrower or any ERISA Affiliate may
receive from the PBGC relating to the intention of the PBGC to terminate any
Plan or Plans (other than a Plan maintained by an ERISA Affiliate which is
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section
414 of the Code) or to appoint a trustee to administer any Plan or Plans and
(iii) within 10 days after the due date for filing with the PBGC pursuant to
Section 412(n) of the Code of a notice of failure to make a required installment
or other payment with respect to a Plan, a statement of a Financial Officer
setting forth details as to such failure and the action proposed to be taken
with respect thereto, together with a copy of such notice given to the PBGC.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Maintain all financial records in accordance with GAAP and permit
any representatives
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designated by any Bank to visit and inspect the financial records and the
properties of the Borrower at reasonable times and as often as requested and to
make extracts from and copies of such financial records, and permit any
representatives designated by any Bank to discuss the affairs, finances and
condition of the Borrower with the chief financial officer of the Borrower, or
other person designated by the chief financial officer, and independent
accountants therefor.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans only
for the purposes set forth in the preamble to this Agreement.
ARTICLE VI. NEGATIVE COVENANTS
The Borrower covenants and agrees with each Bank that, so long as
this Agreement shall remain in effect or the principal of or interest on any
Loan, any Fees or any other expenses or amounts payable under any Loan Document
shall be unpaid, unless the Required Banks shall otherwise consent in writing,
the Borrower will not:
SECTION 6.01. Liens. Create, incur, assume or permit to exist any
Lien on any property or assets (including stock or other securities of any
person, including any Subsidiary) now owned or hereafter acquired by it or on
any income or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower created by the
documents, instruments or agreements existing on the date hereof and which
are listed as exhibits to the Borrower's Annual Report on Form 10-K for
the fiscal year ended December 31, 1996, to the extent that such Liens
secure only obligations arising under such existing documents, agreements
or instruments;
(b) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower; provided that (i) such Lien is not
created in contemplation of or in connection with such acquisition and
(ii) such Lien does not apply to any other property or assets of the
Borrower;
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(c) the Lien of the First Mortgage;
(d) Liens permitted under the First Mortgage (whether or not such
permitted Liens cover properties or assets subject to the Lien of the
First Mortgage) and any other Liens to which the Lien of the First
Mortgage is expressly made subject;
(e) the Lien of any collateral trust mortgage or similar instrument
which would be intended to eventually replace (in one transaction or a
series of transactions) the First Mortgage (as amended, modified or
supplemented from time to time, "Collateral Trust Mortgage") on properties
or assets of the Borrower to secure bonds, notes and other obligations of
the Borrower; provided that, so long as the First Mortgage shall
constitute a Lien on properties or assets of the Borrower, the bonds,
notes or other obligations issued under the Collateral Trust Mortgage (i)
shall also be secured by an equal principal amount of bonds issued under
the First Mortgage or (ii) shall be issued against property additions not
subject to the Lien of the First Mortgage;
(f) Liens permitted under the Collateral Trust Mortgage (whether or
not such permitted Liens cover properties or assets subject to the Lien of
the Collateral Trust Mortgage) and any other Liens to which the Lien of
the Collateral Trust Mortgage is subject;
(g) Liens for taxes, assessments or governmental charges not yet due
or which are being contested in compliance with Section 5.03;
(h) carriers', warehousemen's, mechanic's, materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
and securing obligations that are not due or which are being contested in
compliance with Section 5.03;
(i) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other
social security laws or regulations;
(j) Liens incurred or created in connection with or to secure the
performance of bids, tenders, trade
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contracts (other than for Indebtedness), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business;
(k) zoning restrictions, easements, rights-of-way, restrictions on
use of real property and other similar encumbrances incurred in the
ordinary course of business which, in the aggregate, are not substantial
in amount and do not materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the business of
the Borrower or any of its Subsidiaries;
(l) Liens (i) which secure obligations not assumed by the Borrower,
(ii) on account of which the Borrower has not and does not expect to pay
interest directly or indirectly and (iii) which exist upon real estate or
rights in or relating to real estate in respect of which the Borrower has
a right-of-way or other easement for purposes of substations or
transmission or distribution facilities;
(m) rights reserved to or vested in any federal, state or local
governmental body or agency by the terms of any right, power, franchise,
grant, license, contract or permit, or by any provision of law, to
recapture or to purchase, or designate a purchase of or order the sale
of, any property of the Borrower or to terminate any such right, power,
franchise, grant, license, contract or permit before the expiration
thereof;
(n) Liens of judgments covered by insurance, or upon appeal and
covered by bond, or to the extent not so covered not exceeding at one time
$10,000,000 in aggregate amount;
(o) any Liens, moneys sufficient for the discharge of which shall
have been deposited in trust with the trustee or mortgagee under the
instrument evidencing such Lien, with irrevocable authority of such
trustee or mortgagee to apply such moneys to the discharge of such Lien to
the extent required for such purpose;
(p) rights reserved to or vested in any federal, state or local
governmental body or agency or other
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public authority to control or regulate the business or property of the
Borrower;
(q) any obligations or duties, affecting the property of the
Borrower to any federal, state or local governmental body or agency or
other public authority with respect to any authorization, permit, consent
or license of such body, agency or authority, given in connection with the
purchase, construction, equipping, testing and operation of the Borrower's
utility property;
(r) with respect to any property which the Borrower may hereafter
acquire, any exceptions or reservations therefrom existing at the time of
such acquisition or any terms, conditions, agreements, covenants,
exceptions and reservations expressed or provided in the deeds of other
instruments, respectively, under and by virtue of which the Borrower shall
hereafter acquire the same, none of which materially impairs the use of
such property for the purposes for which it is acquired by the Borrower;
(s) leases and subleases entered into in the ordinary course of
business;
(t) banker's Liens and other Liens in the nature of a right of
set-off;
(u) Liens resulting from any transaction permitted under Section
6.03(iv);
(v) renewals, replacements, amendments, modifications, supplements,
refinancings or extensions of Liens set forth above to the extent that the
principal amount of Indebtedness secured by such Lien immediately prior
thereto is not increased and such Lien is not extended to other property
(it being understood that such limitation does not apply to the Liens
described in subsection (c), (e) or (u) above);
(w) security deposits or amounts paid into trust funds for the
reclamation of mining properties;
(x) restrictions on transfer or use of properties and assets, first
rights of refusal, and rights to acquire properties and assets granted to
others;
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(y) non-consensual equitable Liens on the Borrower's
tenant-in-common or other interest in joint projects;
(z) Liens on the Borrower's tenant-in-common or other interest in
joint projects incurred by the project sponsor without the express consent
of the Borrower to such incurrence; and
(aa) Liens not expressly permitted in clauses (a) through (z) of
this Section 6.01 to secure Indebtedness of the Borrower, provided that
the aggregate outstanding principal amount of the Indebtedness so secured
does not at any one time exceed $100,000,000.
SECTION 6.02. Mergers, Consolidations and Acquisitions. Merge into
or consolidate with any other person, or permit any other person to merge into
or consolidate with it, or purchase, lease or otherwise acquire (in one
transaction or a series of transactions) all or substantially all of the assets
of any other person (whether directly by purchase, lease or other acquisition of
all or substantially all of the assets of such person or indirectly by purchase
or other acquisition of all or substantially all of the capital stock of such
other person) other than acquisitions in the ordinary course of the Borrower's
business, except that if (A) at the time thereof and immediately after giving
effect thereto no Event of Default or Default shall have occurred and be
continuing and (B) in the case of any merger or consolidation involving the
Borrower in which the Borrower is not the surviving corporation, the surviving
corporation shall assume in writing the obligations of the Borrower under this
Agreement and any other Loan Documents, then (a) the Borrower may merge or
consolidate with any Subsidiary in a transaction in which the Borrower is the
surviving corporation, (b) the Borrower may purchase, lease or otherwise acquire
from any Subsidiary all or substantially all of its assets and may purchase or
otherwise acquire all or substantially all of the capital stock of any person
who immediately thereafter is a Subsidiary, (c) the Borrower may merge with or
into, or consolidate with, any other person so long as (i) in the case where the
business of such other person, or an Affiliate of such other person, entirely or
primarily consists of an electric or gas utility business, the senior secured
long-term debt rating of the Borrower shall be at least BBB or higher by S&P and
Baa2 or higher by Xxxxx'x immediately after such merger or
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consolidation, or in the case of a merger or consolidation in which the Borrower
is not the surviving entity, the senior secured long-term debt rating of the
surviving entity or an Affiliate thereof shall be at least BBB+ or higher by S&P
and Baa1 or higher by Xxxxx'x immediately after such merger or consolidation, or
(ii) in the case where such other person's business does not entirely or
primarily consist of an electric or gas utility business, the assets of such
person at the time of such consolidation or merger do not exceed 10% of the
total assets of the Borrower and its Subsidiaries after giving effect to such
merger or consolidation, computed and consolidated in accordance with GAAP
consistently applied, and (d) the Borrower may purchase, lease or otherwise
acquire any or all of the assets of any other person (and may purchase or
otherwise acquire the capital stock of any other person) so long as (i) the
assets being purchased, leased or acquired (or the assets of the person whose
capital stock is being acquired) entirely or primarily consist of electric or
gas utility assets or (ii) in the case where the assets being purchased, leased
or acquired (or the assets of the person whose capital stock is being acquired)
do not entirely or primarily consist of electric or gas utility assets, the
assets being acquired (or the Borrower's proportionate share of the assets of
the person whose capital stock is being acquired) do not exceed 10% of the total
assets of the Borrower and its Subsidiaries, after giving effect to such
acquisition, computed and consolidated in accordance with GAAP consistently
applied.
SECTION 6.03. Disposition of Assets. Sell, lease, transfer, assign
or otherwise dispose of (in one transaction or in a series of transactions), in
any fiscal year, assets (whether now owned or hereafter acquired) which,
together with the amount of all sales, leases, transfers, assignments or other
dispositions permitted under clause (c)(ii) of the definition of Subsidiary
Event in Article I (other than sales, leases, transfers, assignments or other
dispositions permitted under clauses (c)(ii) (A) through (C) in such
definition), exceed 10% of the assets of the Borrower and its Subsidiaries as of
the end of the most recent fiscal year, computed and consolidated in accordance
with GAAP consistently applied, except (i) the Borrower may, in any fiscal year,
sell, lease, transfer, assign or otherwise dispose of assets in the ordinary
course of business which, together with the amount of all sales, leases,
transfers, assignments or other dispositions in the
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ordinary course permitted under clause (c)(ii)(A) of the definition of
Subsidiary Event in Article I, do not exceed 5% of the assets of the Borrower
and its Subsidiaries as of the end of the most recent fiscal year, computed and
consolidated in accordance with GAAP consistently applied, (ii) to the extent
permitted under Section 5.03, 6.01 or Section 6.02, (iii) the Borrower may sell,
lease, transfer, assign or otherwise dispose of its interest in the Washington
Public Power Supply System Nuclear Project No. 3 in accordance with the
settlement agreement among the Borrower, the Washington Public Power Supply
System and Bonneville Power Administration, as the same may be amended, modified
or supplemented from time to time and (iv) the Borrower may sell, lease,
transfer, assign or otherwise dispose (including by way of capital contribution)
of, or create, incur, assume or permit to exist Liens on, receivables and
related properties or interests therein.
ARTICLE VII. EVENTS OF DEFAULT
In case of the happening (and during the continuance) of any of the
following events ("Events of Default"):
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document or the borrowings hereunder, or any
representation, warranty, statement or information contained in any
report, certificate, financial statement or other instrument furnished in
connection with or pursuant to any Loan Document, shall prove to have been
false or misleading in any material respect when so made, deemed made or
furnished;
(b) default shall be made in the payment of any principal of any
Loan when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan
or any Fee or any other amount (other than an amount referred to in (b)
above) due under any Loan Document, when and as the same shall become due
and payable, and such default shall continue unremedied for a period of
five Business Days;
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(d) default shall be made in the due observance or performance by
the Borrower of any covenant, condition or agreement contained in Section
5.01(a) or 5.05 or in Article VI;
(e) default shall be made in the due observance or performance by
the Borrower of any covenant, condition or agreement contained in any Loan
Document (other than those specified in (b), (c) or (d) above) and such
default shall continue unremedied for a period of 30 days after notice
thereof from the Agent or any Bank to the Borrower;
(f) the Borrower or any Significant Subsidiary shall (i) fail to pay
any principal or interest, regardless of amount, due in respect of any
Indebted ness when the aggregate unpaid principal amount is in excess of
$10,000,000, when and as the same shall become due and payable (after
expiration of any applicable grace period), or (ii) fail to observe or
perform any other term, covenant, condition or agreement (after expiration
of any applicable grace period) contained in any agreement or instrument
evidencing or governing any such Indebtedness if the effect of any failure
referred to in this clause (ii) is to cause, or to permit the holder or
holders of such Indebtedness or a trustee on its or their behalf (with or
without the giving of notice, the lapse of time or both) to cause, such
Indebtedness to become due prior to its stated maturity, except as
otherwise permitted under Section 5.03(ii);
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of the Borrower or any Significant Subsidiary, or of a
substantial part of the property or assets of the Borrower or a
Significant Subsidiary, under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other Federal or state
bankruptcy, insolvency, receivership or similar law, (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Significant Subsidiary or for a
substantial part of the property or assets of the Borrower or a
Significant Subsidiary or (iii) the winding-up or liquidation of the
Borrower or any Significant Subsid-
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iary; and such proceeding or petition shall continue undismissed, or an
order or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect, for a period of 60 or more
days;
(h) the Borrower or any Significant Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11
of the United States Code, as now constituted or hereafter amended, or any
other Federal or state bankruptcy, insolvency, receivership or similar
law, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or the filing of any petition
described in (g) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Significant Subsidiary or for a
substantial part of the property or assets of the Borrower or any
Significant Subsidiary, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors, (vi) become
unable, admit in writing its inability or fail generally to pay its debts
as they become due or (vii) take any action for the purpose of effecting
any of the foregoing;
(i) a final judgment or judgments shall be rendered against the
Borrower, any Significant Subsidiary or any combination thereof for the
payment of money with respect to which an aggregate amount in excess of
$10,000,000 is not covered by insurance and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by
a judgment creditor to levy upon assets or properties of the Borrower or
any Significant Subsidiary to enforce any such judgment;
(j) a Reportable Event or Reportable Events, or a failure to make a
required installment or other payment (within the meaning of Section
412(n)(l) of the Code), shall have occurred with respect to any Plan or
Plans that reasonably could be expected to result in liability of the
Borrower to the PBGC or to a Plan in an aggregate amount exceeding
$10,000,000 and, within 30
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days after the reporting of any such Reportable Event to the Agent or
after the receipt by the Agent of the statement required pursuant to
Section 5.06, the Agent shall have notified the Borrower in writing that
(i) the Required Banks have made a determination that, on the basis of
such Reportable Event or Reportable Events or the failure to make a
required payment, there are reasonable grounds (A) for the termination of
such Plan or Plans by the PBGC, (B) for the appointment by the appropriate
United States District Court of a trustee to administer such Plan or Plans
or (C) for the imposition of a lien in favor of a Plan and (ii) as a
result thereof an Event of Default exists hereunder; or a trustee shall be
appointed by a United States District Court to administer any such Plan
or Plans; or the PBGC shall institute proceedings to terminate any Plan or
Plans; or
(k) there shall occur a Subsidiary Event;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Agent, at the request of the Required Banks,
shall, by notice to the Borrower, take either or both of the following actions,
at the same or different times: (i) terminate forthwith the Commitments and (ii)
declare the Loans then outstanding to be forthwith due and payable in whole or
in part, whereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder and under any other Loan Document,
shall become forthwith due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding; and in any event with respect to the Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
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ARTICLE VIII. THE AGENT
In order to expedite the various transactions contemplated by this
Agreement, Toronto Dominion (Texas), Inc. is hereby appointed to act as Agent on
behalf of the Banks. Each of the Banks hereby irrevocably authorizes and directs
the Agent to take such action on behalf of such Bank under the terms and
provisions of this Agreement, and to exercise such powers hereunder as are
specifically delegated to or required of the Agent by the terms and provisions
hereof, together with such powers as are reasonably incidental thereto. The
Agent is hereby expressly authorized on behalf of the Banks, without hereby
limiting any implied authority, (a) to receive on behalf of each of the Banks
any payment of principal of or interest on the Loans outstanding hereunder and
all other amounts accrued hereunder paid to the Agent, and to distribute to each
Bank its proper share of all payments so received as soon as practicable; (b) to
give notice promptly on behalf of each of the Banks to the Borrower of any event
of default specified in this Agreement of which the Agent has actual knowledge
acquired in connection with its agency hereunder; and (c) to distribute
promptly to each Bank copies of all notices, agreements and other material as
provided for in this Agreement as received by such Agent.
Neither the Agent nor any of its directors, officers, employees or
agents shall be liable to any Bank as such for any action taken or omitted by
any of them hereunder except for its or his own gross negligence or wilful
misconduct, or be responsible for any statement, warranty or representation
herein or the contents of any document delivered in connection herewith or be
required to ascertain or to make any inquiry concerning the performance or
observance by the Borrower of any of the terms, conditions, covenants or
agreements of this Agreement. The Agent shall not be responsible to the Banks
for the due execution, genuineness, validity, enforceability or effectiveness of
this Agreement or any other instrument to which reference is made herein. The
Agent shall in all cases be fully protected in acting, or refraining from
acting, in accordance with written instructions signed by the Required Banks,
and, except as otherwise specifically provided herein, such instructions and any
action taken or failure to act pursuant thereto shall be binding on all the
Banks. The Agent shall, in the absence of knowledge to the contrary, be entitled
to
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rely on any paper or document believed by it in good faith to be genuine and
correct and to have been signed or sent by the proper person or persons. Neither
the Agent nor any of its directors, officers, employees or agents shall have any
responsibility to the Borrower on account of the failure or delay in performance
or breach by any Bank of any of its obligations hereunder or to any Bank on
account of the failure of or delay in performance or breach by any other Bank or
the Borrower of any of their respective obligations hereunder or in connection
herewith. The Agent may execute any and all duties hereunder by or through
agents or employees and shall be entitled to advice of legal counsel selected
by it with respect to all matters arising hereunder and shall not be liable for
any action taken or suffered in good faith by it in accordance with the advice
of such counsel.
The Agent and its affiliates may accept deposits from, lend money to
and generally engage in any kind of business with the Borrower or other
affiliate thereof as if it were not the Agent.
Each Bank recognizes that applicable laws, rules, regulations or
guidelines of governmental authorities may require the Agent to determine
whether the transactions contemplated hereby should be classified as "highly
lever aged" or assigned any similar or successor classification, and that such
determination may be binding upon the other Banks. Each Bank understands that
any such determination shall be made solely by the Agent based upon such factors
(which may include, without limitation, the Agent's internal policies and
prevailing market practices) as the Agent shall deem relevant and agrees that
the Agent shall have no liability for the consequences of any such
determination.
Each Bank agrees (i) to reimburse the Agent in the amount of such
Bank's pro rata share (based on its Commitment hereunder) of any expenses
incurred for the benefit of the Banks by the Agent, including reasonable counsel
fees and compensation of agents and employees paid for services rendered on
behalf of the Banks, not reimbursed by the Borrower and (ii) to indemnify and
hold harmless the Agent and any of its directors, officers, employees or agents,
on demand, in the amount of its pro rata share, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever
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which may be imposed on, incurred by or asserted against it in its capacity as
the Agent or any of them in any way relating to or arising out of this Agreement
or any action taken or omitted by it or any of them under this Agreement, to the
extent not reimbursed by the Borrower; provided, however, that no Bank shall be
liable to the Agent for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or wilful misconduct of the Agent or any of
its directors, officers, employees or agents.
Each Bank acknowledges that it has, independently and without
reliance upon the Agent or any other Bank and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Agent or any other Bank based on
such documents and information as it shall deem appropriate at the time,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder.
The Agent may execute any of its duties under this Agreement by or
through agents or attorneys selected by them using reasonable care and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
The Agent shall not be responsible for the negligence or misconduct of any
agents or attorneys selected and authorized to act by it with reasonable care
unless the damage complained of directly results from an act or failure to act
on part of the Agent which constitutes gross negligence or wilful misconduct.
Delegation to an attorney or agent shall not release the Agent from its
obligation to perform or cause to be performed the delegated duty.
ARTICLE IX. MISCELLANEOUS
SECTION 9.01. Notices. Notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed or
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sent by telecopy, graphic scanning or other telegraphic communications equipment
of the sending party, as follows:
(a) if to the Borrower, to it at East 0000 Xxxxxxx Xxxxxx (99202),
X.X. Xxx 0000, Xxxxxxx, Xxxxxxxxxx 00000, Attention of the Vice President
and Treasurer (Telecopy No. 509-482-4879);
(b) if to the Agent, to it at 000 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx
00000, Attention of Xxxxxxxx Xxxxxxxx (Telecopy No. 713-951-9921); and
(c) if to a Bank, to it at its address (or telecopy number) set
forth in Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Bank shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or other telegraphic communications equipment of the sender, or on the
date five Business Days after dispatch by certified or registered mail if
mailed, in each case delivered, sent or mailed (properly addressed) to such
party as provided in this Section 9.01 or in accordance with the latest
unrevoked direction from such party given in accordance with this Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties, including, without limitation, any indemnities
and reimbursement obligations, made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Banks and shall survive the making by the Banks of
the Loans, and the execution and delivery to the Banks of the Notes evidencing
such Loans, regardless of any investigation made by the Banks or on their
behalf, and shall continue in full force and effect as long as the principal of
or any accrued interest on any Loan or any Fee or any other amount payable under
this Agreement or any other Loan Document is outstanding and unpaid and so long
as the Commitments have not been terminated.
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SECTION 9.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Agent and when the
Agent shall have received copies hereof which, when taken together, bear the
signatures of each Bank, and thereafter shall be binding upon and inure to the
benefit of the Borrower, the Agent and each Bank and their respective successors
and assigns, except that the Borrower shall not have the right to assign its
rights hereunder or any interest herein without the prior consent of all the
Banks.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and permitted assigns of such party; and all covenants,
promises and agreements by or on behalf of the Borrower, the Agent or the Banks
that are contained in this Agreement shall bind and inure to the benefit of
their respective successors and permitted assigns.
(b) Each Bank may assign to one or more assignees all or a portion
of its interests, rights and obligations under this Agreement (including all or
a portion of its Commitment and the Loans at the time owing to it and the Notes
held by it); provided, however, that (i) except in the case of an assignment to
a Bank or an Affiliate of such Bank, the Borrower and the Agent must give their
prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) that no assignee of any Bank shall be entitled to
receive any greater payment or protection under Sections 2.11, 2.12(a), 2.13 or
2.17 than such Bank would have been entitled to receive with respect to the
rights assigned or otherwise transferred unless such assignment or transfer
shall have been made at a time when the circumstances giving rise to such
greater payment did not exist, (iii) each such assignment shall be of a
constant, and not a varying, percentage of all the assigning Bank's rights and
obligations under this Agreement, (iv) the amount of the Commitment of the
assigning Bank subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Agent) shall not be less than $5,000,000, (v) the parties to each such
assignment shall execute and deliver to the Agent an Assignment and Acceptance,
together with the Note or Notes subject to such assignment and a processing and
recordation fee of $5,000 and (vi) the assignee, if it shall not be a Bank,
shall deliver to the Agent an Adminis-
62
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trative Questionnaire. Upon acceptance and recording pursuant to paragraph (e)
of this Section 9.04, from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be at least five Business
Days after the execution thereof, (A) the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Bank under this Agreement and
(B) the assigning Bank thereunder shall, to the extent of the interest assigned
by such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Bank's rights and obligations under this
Agreement, such Bank shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.11, 2.13, 2.17 and 9.05, as well as to
any Fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Bank thereunder and the assignee thereunder shall be deemed to confirm
to and agree with each other and the other parties hereto as follows: (i) such
assigning Bank warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and that its
Commitment, and the outstanding balances of its Loans, in each case without
giving effect to assignments thereof which have not become effective, are as set
forth in such Assignment and Acceptance; (ii) except as set forth in (i) above,
such assigning Bank makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agree ment, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of the Borrower or any Subsidiary or the
performance or observance by the Borrower or any Subsidiary of any of its
obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 5.04 and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into such
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Assignment and Acceptance; (v) such assignee will independently and without
reliance upon the Agent, such assigning Bank or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement; (vi) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
as are delegated to the Agent by the terms hereof, together with such powers as
are reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of
this Agreement are required to be performed by it as a Bank.
(d) The Agent shall maintain a copy of each Assignment and
Acceptance delivered to it including the recordation of the names and addresses
of the Banks, and the Commitment of, and principal amount of the Loans owing to,
each Bank pursuant to the terms hereof from time to time (the "Register"). The
Agent and the Banks may treat each person whose name is recorded in the Register
pursuant to the terms hereof as a Bank hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower and
any Bank, at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Bank and an assignee together with the Note or Notes
subject to such assignment, an Administrative Questionnaire completed in respect
of the assignee (unless the assignee shall already be a Bank hereunder), the
processing and recordation fee referred to in paragraph (b) above and, if
required, the written consent of the Borrower and the Agent to such assignment,
the Agent shall (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Banks. Within five Business Days after receipt of notice, the
Borrower, at its own expense, shall execute and deliver to the Agent, in
exchange for the surrendered Note or Notes, a new Note or Notes to the order of
such assignee in a principal amount equal to the applicable Commitment assumed
by it pursuant to such Assignment and Acceptance and, if the assigning Bank has
retained a Commitment, a new Note to the order of such assigning Bank in a
principal amount equal to the applicable Commitment retained by it. Such new
Note or
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63
Notes shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note; such new Notes shall be dated the date of the
surrendered Notes which they replace and shall otherwise be in substantially the
form of Exhibit A hereto. Canceled Notes shall be returned to the Borrower.
(f) Each Bank may without the consent of the Borrower or the Agent
sell participations to one or more banks or other entities in all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans owing to it and the Notes held by it); provided,
however, that (i) such Bank's obligations under this Agreement shall remain
unchanged, (ii) such Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) the participating banks or
other entities shall be entitled to the benefit of the cost protection
provisions contained in Sections 2.11, 2.13 and 2.17 to the same extent as if
they were Banks (provided, that the amount of such benefit shall be limited to
the amount in respect of the interest sold to which the seller of such
participation would have been entitled had it not sold such interest) and (iv)
the Borrower, the Agent and the other Banks shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and obligations
under this Agreement, and such Bank shall retain the sole right to enforce the
obligations of the Borrower relating to the Loans and to approve any amendment,
modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers decreasing any fees payable here under or
the amount of principal of or the rate at which interest is payable on the
Loans, extending any scheduled principal payment date or date fixed for the
payment of interest on the Loans or changing or extending the Commitments).
(g) Any Bank or participant may, in connection with any assignment
or participation or proposed assignment or participation pursuant to this
Section 9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Bank by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree
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64
(subject to customary exceptions) to preserve the confidentiality of such
confidential information.
(h) Any Bank may at any time assign for security purposes all or any
portion of its rights under this Agreement and the Notes issued to it to a
Federal Reserve Bank; provided that no such assignment shall release a Bank from
any of its obligations hereunder.
(i) Subject to Section 6.02, the Borrower shall not assign or
delegate any of its rights or duties here under.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower agrees to pay
all out-of-pocket expenses incurred by the Agent in connection with the
preparation of this Agreement and the other Loan Documents or in connection with
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions hereby contemplated shall be consummated) or
incurred by the Agent or any Bank in connection with the enforcement or
protection of their rights in connection with this Agreement and the other Loan
Documents or in connection with the Loans made or the Notes issued hereunder,
including the fees, charges and disbursements of Cravath, Swaine & Xxxxx,
counsel for the Agent, and, in connection with any such amendment, modification
or waiver or any such enforcement or protection, the fees, charges and
disbursements of any other internal or external counsel for the Agent or any
Bank. The Borrower further agrees that it shall indemnify the Banks from and
hold them harmless against any documentary taxes, assessments or charges made
by any Governmental Authority by reason of the execution and delivery of this
Agreement or any of the other Loan Documents.
(b) The Borrower agrees to indemnify the Agent, each Bank and each
of their respective directors, officers, employees and agents (each such person
being called an "Indemnitee") against, and to hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including reasonable counsel fees, charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with, or as
a result of (i) the execution or delivery of this Agreement or any other Loan
Document or any agreement or instrument contemplated thereby, the performance by
the parties thereto of their respective obligations thereunder or the consumma-
66
65
tion of the Transactions and the other transactions contemplated thereby, (ii)
the use of the proceeds of the Loans or (iii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Agent or any Bank. All amounts due under this
Section 9.05 shall be payable on written demand therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing and the Loans shall have been accelerated as set
forth in Article VII, each Bank is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Bank (or bank
Controlling such Bank) to or for the credit or the account of the Borrower
against any of and all the obligations of the Borrower now or hereafter existing
under this Agreement and other Loan Documents held by such Bank. The rights of
each Bank under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Bank may have. Any Bank shall
provide the Borrower with written notice promptly after exercising its rights
under this Section.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Agent or any Bank in exercising any power or right hereunder shall operate as a
waiver thereof,
67
66
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agent and the Banks hereunder and
under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies which they would otherwise have. No waiver of any provision
of this Agreement or any other Loan Document or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on the Borrower in any case shall entitle the Borrower to any
other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Banks; provided, however, that no
such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan, or waive or excuse any such payment or any part
thereof, or decrease the rate of interest on any Loan, without the prior written
consent of each holder of a Note affected thereby, (ii) change or extend the
Commitment or decrease the Commitment Fees of any Bank without the prior
written consent of such Bank, or (iii) amend or modify the provisions of Section
2.14, the provisions of this Section or the definition of "Required Banks",
without the prior written consent of each Bank; provided further that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Agent hereunder without the prior written consent of the Agent. Each Bank and
each holder of a Note shall be bound by any waiver, amendment or modification
authorized by this Section regardless of whether its Note shall have been marked
to make reference thereto, and any consent by any Bank or holder of a Note
pursuant to this Section shall bind any person subsequently acquiring a Note
from it, whether or not such Note shall have been so marked.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything
herein or in the Notes to the contrary, if at any time the applicable interest
rate, together with all fees and charges which are treated as interest under
appli-
68
67
cable law (collectively the "Charges"), as provided for herein or in any other
document executed in connection herewith, or otherwise contracted for, charged,
received, taken or reserved by any Bank, shall exceed the maximum lawful rate
(the "Maximum Rate") which may be contracted for, charged, taken, received or
reserved by such Bank in accordance with applicable law, the rate of interest
payable under the Note held by such Bank, together with all Charges payable to
such Bank, shall be limited to the Maximum Rate.
SECTION 9.10. Entire Agreement. This Agreement and the other Loan
Documents constitute the entire contract between the parties relative to the
subject matter hereof. Any previous agreement among the parties with respect to
the subject matter hereof is superseded by this Agreement and the other Loan
Documents. Nothing in this Agreement or in the other Loan Documents, expressed
or implied, is intended to confer upon any party other than the parties hereto
and thereto any rights, remedies, obligations or liabilities under or by reason
of this Agreement or the other Loan Documents.
SECTION 9.11. Waiver of Jury Trial. Each party hereto hereby waives,
to the fullest extent permitted by applicable law, any right it may have to a
trial by jury in respect of any litigation directly or indirectly arising out
of, under or in connection with this Agreement or any of the other Loan
Documents. Each party hereto (a) certifies that no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the foregoing
waiver and (b) acknowledges that it and the other parties hereto have been
induced to enter into this Agreement and the other Loan Documents, as
applicable, by, among other things, the mutual waivers and certifications in
this Section 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of
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68
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract, and shall become
effective as provided in Section 9.03.
SECTION 9.14. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any Bank
may otherwise have to bring any action or proceeding relating to this Agreement
or the other Loan Documents against the Borrower or its proper ties in the
courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or here after have to the laying of venue of any suit, action or
proceeding arising out of or relating to this agreement or the other Loan
Documents in any New York State or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
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(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
WITNESS the due execution hereof as of the date first above written.
THE WASHINGTON WATER POWER
COMPANY,
by /s/ XXX X. XXXXXXXX
--------------------------------------------
Name: Xxx X. Xxxxxxxx
Title: Senior VP & CFO
TORONTO DOMINION (TEXAS),
INC., as Agent,
by
--------------------------------------------
Name:
Title:
THE TORONTO-DOMINION BANK,
HOUSTON AGENCY,
by
--------------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
by
--------------------------------------------
Name:
Title:
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69
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
WITNESS the due execution hereof as of the date first above written.
THE WASHINGTON WATER POWER
COMPANY,
by
--------------------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS),
INC., as Agent,
by /s/ XXXXXXXX XXXXXXXX
--------------------------------------------
Name: XXXXXXXX XXXXXXXX
Title: VICE PRESIDENT
THE TORONTO-DOMINION BANK,
HOUSTON AGENCY,
by /s/ XXXXXXXX XXXXXXXX
--------------------------------------------
Name: XXXXXXXX XXXXXXXX
Title:MGR. CR ADMIN.
THE BANK OF NEW YORK,
by
--------------------------------------------
Name:
Title:
72
69
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
WITNESS the due execution hereof as of the date first above written.
THE WASHINGTON WATER POWER
COMPANY,
by
--------------------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS),
INC., as Agent,
by
--------------------------------------------
Name:
Title:
THE TORONTO-DOMINION BANK,
HOUSTON AGENCY,
by
--------------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
by /s/ XXXX X. XXXX
--------------------------------------------
Name: XXXX X. XXXX
Title: Vice President
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70
NATIONSBANK OF TEXAS, N.A.,
by /s/ XXXXXX X. XXXXXXXX
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
74
EXHIBIT A
[FORM OF]
NOTE
$__________________ [ ], 1997
New York, New York
FOR VALUE RECEIVED, the undersigned, THE WASHINGTON WATER POWER
COMPANY, a Washington corporation (the "Borrower"), hereby promises to pay to
the order of _______________________ (the "Bank"), at the office of Toronto
Dominion (Texas), Inc., (the "Agent"), at 000 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx
00000, (i) on the last day of each Interest Period, as defined in the
$50,000,000 Amended and Restated Revolving Credit Agreement dated as of July 22,
1997 (the "Credit Agreement"), among the Borrower, the Banks named therein and
the Agent, the aggregate unpaid principal amount of all Loans (as defined in the
Credit Agreement) made to the Borrower by the Bank pursuant to the Credit
Agreement to which such Interest Period applies and (ii) on the Expiration Date
(as defined in the Credit Agreement) the lesser of the principal sum of
__________________ Dollars ($______________) and the aggregate unpaid principal
amount of all Loans made to the Borrower by the Bank pursuant to the Credit
Agreement, in lawful money of the United States of America in immediately
available funds, and to pay interest from the date hereof on the principal
amount hereof from time to time outstanding, in like funds, at said office, at
the rate or rates per annum and payable on the dates provided in the Credit
Agreement.
The Borrower promises to pay interest, on demand, on any overdue
principal and, to the extent permitted by law, overdue interest from their due
dates at the rate or rates provided in the Credit Agreement.
The Borrower hereby waives diligence, presentment, demand, protest
and notice of any kind whatsoever. The nonexercise by the holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
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2
All borrowings evidenced by this Note and all payments and
prepayments of the principal hereof and interest hereon and the respective dates
and maturity dates thereof shall be endorsed by the holder hereof on the
schedule attached hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof, or otherwise recorded by
such holder in its internal records; provided, however, that the failure of the
holder hereof to make such a notation or any error in such a notation shall not
affect the obligations of the Borrower under this Note.
This Note is one of the Notes referred to in the Credit Agreement,
which, among other things, contains provisions for the acceleration of the
maturity hereof upon the happening of certain events, for optional and mandatory
prepayment of the principal hereof prior to the maturity hereof and for the
amendment or waiver of certain provisions of the Credit Agreement, all upon the
terms and conditions therein specified. This Note shall be construed in
accordance with and governed by the laws of the State of New York and any
applicable laws of the United States of America.
THE WASHINGTON WATER
POWER COMPANY
by
------------------------------
Name:
Title:
76
3
Loans and Payments
Unpaid Name of
Amount Payments Principal Person
and Maturity ------------------ Balance of Making
Date Type of Loan Date Principal Interest Note Notation
---- ------------ -------- ------------------- ----------- --------
77
EXHIBIT B
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the $50,000,00 Amended and Restated Credit
Agreement dated as of July 22, 1997 (the "Credit Agreement"), among The
Washington Water Power Company, a Washington corporation (the "Borrower"), the
banks listed on Schedule 2.01 thereto (the "Banks") and Toronto Dominion
(Texas), Inc., as agent for the Banks (in such capacity, the "Agent"). Terms
defined in the Credit Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the Effective Date set forth on the reverse
hereof, the interests set forth on the reverse hereof (the "Assigned Interest")
in the Assignor's rights and obligations under the Credit Agreement, including,
without limitation, the Commitment of the Assignor on the Effective Date and the
Loans owing to the Assignor which are outstanding on the Effective Date,
together with unpaid interest accrued on the assigned Loans to the Effective
Date and the amount, if any, set forth on the reverse hereof of the Fees accrued
to the Effective Date for the account of the Assignor. Each of the Assignor and
the Assignee hereby makes and agrees to be bound by all the representations,
warranties and agreements set forth in Section 9.04(c) of the Credit Agreement,
a copy of which has been received by each such party. From and after the
Effective Date (i) the Assignee shall be a party to and be bound by the
provisions of the Credit Agreement and, to the extent of the interests assigned
by this Assignment and Acceptance, have the rights and obligations of a Bank
thereunder and under the Loan Documents and (ii) the Assignor shall, to the
extent of the interests assigned by this Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Credit Agreement.
2. This Assignment and Acceptance is being delivered to the Agent
together with (i) the Notes evidencing the Loans included in the Assigned
Interest, (ii) if the Assignee is organized under the laws of a jurisdiction
outside the United States, the forms specified in Section 2.17(f) of the Credit
Agreement, duly completed and executed by such Assignee, (iii) if the Assignee
is not already a Bank under the Credit Agreement, an Administrative
78
2
Questionnaire in the form of Exhibit C to the Credit Agreement and (iv) a
processing and recordation fee of $5,000.
3. This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
(may not be fewer than 5 Business
Days after the Date of Assignment):
Assigned Percentage
of Facility and
Commitment
Thereunder (set
forth, to at least 8
decimals, as a
percentage of the
Facility and the
aggregate
Principal Commitments of all
Facility Assigned Banks thereunder)
-------- -------- -----------------
Commitment Assigned: $ %
Loans: $ %
Fees Assigned
(if any): $ %
79
3
The terms set forth above and on the
reverse side hereof are hereby agreed to: Accepted:
_________________________ , as Assignor TORONTO DOMINION (TEXAS),
INC., as Agent
By: By:
------------------------------------ --------------------------------
Name: Name:
Title: Title:
_________________________ , as Assignee THE WASHINGTON POWER COMPANY
By: By:
------------------------------------ ---------------------------------
Name: Name:
Title: Title:
80
EXHIBIT C
Administrative Questionnaire
81
EXHIBIT D-1
Opinion of General Counsel for the Borrower
82
EXHIBIT D-2
Opinion of Special Counsel for the Borrower
83
SCHEDULE 2.01
Banks
Bank Commitment
---- ----------
The Toronto-Dominion Bank, Houston Agency $20,000,000
000 Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxxx Xxxxxxxx
Telecopy: (000)000-0000
With copies to:
Toronto-Dominion Bank U.S.A. Division
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxxxxxx
Telecopy: (000) 000-0000
The Bank of New York $15,000,000
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx XxXxxxxx
Telecopy: (000) 000-0000
NationsBank of Texas, N.A. $15,000,000
000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Attention: Mr. Xxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
84
SCHEDULE 3.14
Significant Subsidiaries
Name Percent Ownership
---- -----------------
Avista Corp. 100%
Xxxxxxx Corporation 100%
85
SCHEDULE 4.02(c)
Orders of Governmental Authorities
1. Order(s) of the Washington Utilities and Transportation Commission.
2. Order(s) of the Oregon Public Utility Commission.
3. Order(s) of the Idaho Public Utilities Commission.
4. Order(s) of the California Public Utilities Commission.
