EXHIBIT 4(g)
364-DAY CREDIT AGREEMENT
by and among
CLECO UTILITY GROUP INC.
THE LENDERS PARTY HERETO
AND
THE BANK OF NEW YORK,
as Administrative Agent
----------------
$100,000,000
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DATED AS OF JUNE 15, 2000
----------------------------------------
BNY CAPITAL MARKETS, INC.,
as Lead Arranger and as Book Manager
TABLE OF CONTENTS
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION 1
1.1. Definitions 1
1.2. Principles of Construction 16
2. AMOUNT AND TERMS OF LOANS 17
2.1. Revolving Credit Loans 17
2.2. Notes 17
2.3. Revolving Credit Loans; Procedure 18
2.4. Competitive Bid Loans; Procedure 19
2.5. Voluntary Reduction or Termination of Aggregate Commitments 22
2.6. Prepayments of the Loans 22
2.7. Conversions and Continuations 23
2.8. Interest Rate and Payment Dates 24
2.9. Substituted Interest Rate 26
2.10. Taxes 26
2.11. Illegality 28
2.12. Increased Costs 29
2.13. Indemnification for Loss 31
2.14. Survival of Certain Obligations 32
2.15. Use of Proceeds 32
2.16. Capital Adequacy 32
2.17. Lenders' Records 33
2.18. Extension of Commitment Period 33
2.19. Substitution of Lender 34
3. FEES; PAYMENTS 35
3.1. Facility Fee; Utilization Fee 35
3.2. Other Fees 35
3.3. Pro Rata Treatment and Application of Principal Payments 35
4. REPRESENTATIONS AND WARRANTIES 36
4.1. Subsidiaries; Capitalization 36
4.2. Existence and Power 36
4.3. Authority 36
4.4. Binding Agreement 37
4.5. Litigation and Regulatory Proceedings 37
4.6. Required Consents 37
4.7. No Conflicting Agreements, Compliance with Laws 37
4.8. Governmental Regulations 38
4.9. Federal Reserve Regulations; Use of Loan Proceeds 38
4.10. Plans 38
4.11. Financial Statements 39
4.12. Property 39
4.13. Environmental Matters 39
5. CONDITIONS TO EFFECTIVENESS 40
5.1. Evidence of Action 40
5.2. This Agreement 40
5.3. Notes 41
5.4. Approvals 41
5.5. Certain Agreements 41
5.6. Opinion of Counsel to the Borrower 41
5.7. Terminating Indebtedness 41
5.8. Fees 42
6. CONDITIONS OF LENDING - ALL LOANS 42
6.1. Compliance 42
6.2. Borrowing Request; Competitive Bid Request 42
6.3. Law 42
6.4. Other Documents 42
7. AFFIRMATIVE COVENANTS 43
7.1. Financial Statements 43
7.2. Certificates; Other Information 43
7.3. Legal Existence 44
7.4. Taxes 45
7.5. Insurance 45
7.6. Payment of Indebtedness and Performance of Obligations 45
7.7. Condition of Property 45
7.8. Observance of Legal Requirements 46
7.9. Inspection of Property; Books and Records; Discussions 46
7.10. Licenses, Intellectual Property 46
7.11. Capitalization Ratio 46
7.12. Material/Immaterial Designation of Subsidiaries 46
8. NEGATIVE COVENANTS 47
8.1. Liens 47
8.2. Merger, Consolidation, Purchase or Sale of Assets, Etc. 49
8.3. Loans, Advances, etc. 51
8.4. Amendments, etc. of Certain Agreements 51
9. DEFAULT 52
9.1. Events of Xxxxxxx 00
00. THE ADMINISTRATIVE AGENT 55
10.1. Appointment 55
(ii)
10.2. Delegation of Duties 55
10.3. Exculpatory Provisions 55
10.4. Reliance by Administrative Agent 56
10.5. Notice of Default 56
10.6. Non-Reliance on Administrative Agent and Other Lenders 56
10.7. Indemnification 57
10.8. Administrative Agent in Its Individual Capacity 58
10.9. Successor Administrative Agent 58
11. OTHER PROVISIONS 59
11.1. Amendments and Waivers 59
11.2. Notices 60
11.3. No Waiver; Cumulative Remedies 61
11.4. Survival of Representations and Warranties 61
11.5. Payment of Expenses and Taxes 62
11.6. Lending Offices 62
11.7. Assignments and Participations 63
11.8. Counterparts 64
11.9. Adjustments; Set-off 65
11.10. Construction 66
11.11. Indemnity 66
11.12. Governing Law 67
11.13. Headings Descriptive 67
11.14. Severability 67
11.15. Integration 67
11.16. Consent to Jurisdiction 67
11.17. Service of Process 67
11.18. No Limitation on Service or Suit 68
11.19. WAIVER OF TRIAL BY JURY 68
(iii)
SCHEDULES:
Schedule 1.1 List of Lending Offices
Schedule 4.1 List of Subsidiaries
Schedule 4.5 List of Litigation and Regulatory Proceedings
Schedule 4.13 List of Environmental Matters
Schedule 8.1 List of Existing Liens
EXHIBITS:
Exhibit A List of Commitments
Exhibit B Form of Note
Exhibit C Form of Borrowing Request
Exhibit D Form of Competitive Bid Request
Exhibit E Form of Invitation to Bid
Exhibit F Form of Competitive Bid
Exhibit G Form of Competitive Bid Accept/Reject Letter
Exhibit H Form of Competitive Bid Loan Confirmation
Exhibit I Form of Notice of Conversion/Continuation
Exhibit J Form of Assignment and Acceptance Agreement
Exhibit K Form of Opinion of Counsel to the Borrower
(iv)
364-DAY CREDIT AGREEMENT, dated as of June 15, 2000, by and among CLECO
UTILITY GROUP INC., a Louisiana corporation (the "Borrower"), the lenders party
hereto (together with their respective assigns pursuant to Section 11.7, the
"Lenders"; each a "Lender"), and THE BANK OF NEW YORK, as administrative agent
for the Lenders hereunder (in such capacity, together with its permitted
successors and assigns in such capacity, the "Administrative Agent").
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
1.1. Definitions
As used in this Agreement, terms defined in the preamble have the
meanings therein indicated, and the following terms have the following meanings:
"ABR Advances": the Revolving Credit Loans (or any portions thereof)
at such time as they (or such portions) are made and/or being maintained at a
rate of interest based upon the Alternate Base Rate.
"Accountants": PricewaterhouseCoopers, L.L.P. (or any successor
thereto), or such other firm of certified public accountants of recognized
national standing selected by the Borrower and reasonably satisfactory to the
Administrative Agent.
"Accumulated Funding Deficiency": as defined in Section 302 of ERISA.
"Advance": with respect to a Revolving Credit Loan, an ABR Advance or
a Eurodollar Advance, as the case may be.
"Affected Advance": as defined in Section 2.9.
"Affected Principal Amount": in the event that (i) the Borrower shall
fail for any reason to borrow, convert or continue after it shall have notified
the Administrative Agent of its intent to do so in any instance in which it
shall have requested a Eurodollar Advance or shall have accepted one or more
offers of Competitive Bid Loans, an amount equal to the principal amount of such
Eurodollar Advance or accepted Competitive Bid Loan, (ii) a Eurodollar Advance
or a Competitive Bid Loan shall terminate for any reason prior to the last day
of the Interest Period applicable thereto, an amount equal to the principal
amount of such Eurodollar Advance or Competitive Bid Loan, or (iii) the Borrower
shall prepay or repay all or any part of the principal amount of a Eurodollar
Advance or a Competitive Bid Loan prior to the last day of the Interest Period
applicable thereto, an amount equal to the principal amount of such Eurodollar
Advance or Competitive Bid Loan so prepaid or repaid, as the case may be.
"Aggregate Commitments": on any date, the sum of all Commitments on
such date.
"Agreement": this 364-Day Credit Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Alternate Base Rate": on any date, a rate of interest per annum equal
to the higher of (i) the Federal Funds Rate in effect on such date plus 1/2 of
1% or (ii) the BNY Rate in effect on such date.
"Applicable Facility Fee Percentage": with respect to the amount of
the Aggregate Commitments, at all times during which the applicable Pricing
Level set forth below is in effect, the percentage set forth below next to such
Pricing Level, subject to the provisos set forth below:
Applicable
Facility Fee
Pricing Level Percentage
------------- ------------
Pricing Level I 0.080%
Pricing Level II 0.100%
Pricing Level III 0.125%
Pricing Level IV 0.150%
Pricing Level V 0.200%
Pricing Level VI 0.225%.
Changes in the Applicable Facility Fee Percentage resulting from a
change in the Pricing Level shall become effective on the effective date of any
change in the Senior Debt Rating from S&P or Xxxxx'x, as the case may be.
Notwithstanding anything herein to the contrary, in the event of a split in the
Senior Debt Ratings from S&P and Xxxxx'x that would otherwise result in the
application of more than one Pricing Level (had the provisions regarding the
applicability of other Pricing Levels contained in the definitions thereof not
been given effect), then the Applicable Facility Fee Percentage shall be
determined using, in the case of a split by one rating category, the higher
Pricing Level, and in the case of a split by more than one rating category, the
Pricing Level that is one level lower than the Pricing Level within which the
higher of the two rating categories would otherwise fall.
"Applicable Lending Office": in respect of any Lender, (i) in the case
of such Lender's ABR Advances and Competitive Bid Loans, its Domestic Lending
Office or (ii) in the case of such Lender's Eurodollar Advances, its Eurodollar
Lending Office.
"Applicable Margin": with respect to the unpaid principal amount of
Eurodollar Advances, at all times during which the applicable Pricing Level set
forth below is in effect, the percentage set forth below next to such Pricing
Level, subject to the provisos set forth below:
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Pricing Level Applicable Margin
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Pricing Level I 0.320%
Pricing Level II 0.450%
Pricing Level III 0.525%
Pricing Level IV 0.600%
Pricing Level V 0.675%
Pricing Level VI 0.775%.
Changes in the Applicable Margin resulting from a change in the
Pricing Level shall become effective on the effective date of any change in the
Senior Debt Rating from S&P or Xxxxx'x, as the case may be. Notwithstanding
anything herein to the contrary, in the event of a split in the Senior Debt
Ratings from S&P and Xxxxx'x that would otherwise result in the application of
more than one Pricing Level (had the provisions regarding the applicability of
other Pricing Levels contained in the definitions thereof not been given
effect), then the Applicable Margin shall be determined using, in the case of a
split by one rating category, the higher Pricing Level, and in the case of a
split by more than one rating category, the Pricing Level that is one level
lower than the Pricing Level within which the higher of the two rating
categories would otherwise fall.
"Applicable Utilization Fee Percentage": with respect to the amount of
the Aggregate Commitments, at all times during which the applicable Pricing
Level set forth below is in effect, the percentage set forth below next to such
Pricing Level, subject to the provisos set forth below:
Applicable
Pricing Level Utilization Fee Percentage
------------- --------------------------
Pricing Level I 0.050%
Pricing Level II 0.100%
Pricing Level III 0.100%
Pricing Level IV 0.125%
Pricing Level V 0.125%
Pricing Level VI 0.250%.
Changes in the Applicable Utilization Fee Percentage resulting from a
change in the Pricing Level shall become effective on the effective date of any
change in the Senior Debt Rating from S&P or Xxxxx'x, as the case may be.
Notwithstanding anything herein to the contrary, in the event of a split in the
Senior Debt Ratings from S&P and Xxxxx'x that would otherwise result in the
application of more than one Pricing Level (had the provisions regarding the
applicability of other Pricing Levels contained in the definitions thereof not
been given effect), then the Applicable Utilization Fee Percentage shall be
determined using, in the case of a split by one rating category, the higher
Pricing Level, and in the case of a split by
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more than one rating category, the Pricing Level that is one level lower than
the Pricing Level within which the higher of the two rating categories would
otherwise fall.
"Asset Sale": any sale, transfer or other disposition by the Borrower
or any of the Material Subsidiaries to any Person of any Property (including any
Stock or other securities of another Person) of the Borrower or any of the
Material Subsidiaries, other than inventory or accounts receivables or other
receivables sold, transferred or otherwise disposed of in the ordinary course of
business, provided that, notwithstanding anything in this definition to the
contrary, for purposes of the Loan Documents, the term "Asset Sale" shall not
include the creation or granting of any Lien other than a conditional sale or
other title retention arrangement.
"Assignment and Acceptance Agreement": an assignment and acceptance
agreement executed by a Lender and an assignee (with the consent of any party
whose consent is required by Section 11.7), and accepted by the Administrative
Agent, substantially in the form of Exhibit J.
"Benefited Lender": as defined in Section 11.9.
"Bid Rate": as defined in Section 2.4(b).
"BNY": The Bank of New York.
"BNY Rate": a rate of interest per annum equal to the rate of interest
publicly announced in New York City by BNY from time to time as its prime
commercial lending rate, such rate to be adjusted automatically (without notice)
on the effective date of any change in such publicly announced rate.
"Borrowing Date": any Business Day on which the Lenders make Revolving
Credit Loans in accordance with a Borrowing Request or one or more Lenders make
Competitive Bid Loans pursuant to Competitive Bids which have been accepted by
the Borrower.
"Borrowing Request": a request for Revolving Credit Loans in the form
of Exhibit C.
"Business Day": for all purposes other than as set forth in clause
(ii) below, (i) any day other than a Saturday, a Sunday or a day on which
commercial banks located in New York City are authorized or required by law or
other governmental action to close and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Advances, any day which is a Business Day described in clause (i)
above and which is also a day on which dealings in foreign currency and exchange
and Eurodollar funding between banks may be carried on in London, England.
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"Capital Lease Obligations": with respect to any Person, obligations
of such Person with respect to leases which, in accordance with GAAP, are
required to be capitalized on the financial statements of such Person.
"CLECO Mortgage": the Indenture of Mortgage, dated as of July 1, 1950,
as supplemented and amended through the date hereof, made by the Borrower to
Bank One Trust Company, N.A., as Trustee, as the same may be further amended,
supplemented or otherwise modified from time to time in accordance with Section
8.4.
"Code": the Internal Revenue Code of 1986, as the same may be amended
from time to time, or any successor thereto, and the rules and regulations
issued thereunder, as from time to time in effect.
"Commitment": in respect of any Lender, such Lender's undertaking
during the Commitment Period to make Revolving Credit Loans, subject to the
terms and conditions hereof, in an aggregate outstanding principal amount not
exceeding the amount set forth next to the name of such Lender in Exhibit A
under the heading "Commitment", as the same may be reduced pursuant to Section
2.5 and reduced or increased pursuant to assignments by or to such Lender
pursuant to Section 11.7.
"Commitment Percentage": as of any date and with respect to each
Lender, the percentage equal to a fraction (i) the numerator of which is the
Commitment of such Lender on such date (or, if there are no Commitments on such
date, on the last date upon which one or more Commitments were in effect), and
(ii) the denominator of which is the sum of the Commitments of all Lenders on
such date (or, if there are no Commitments on such date, on the last date upon
which one or more Commitments were in effect).
"Commitment Period": the period from the Effective Date until the day
before the Maturity Date.
"Common Equity": as of any date of determination, an amount equal to
the sum of (i) common Stock of the Borrower, (ii) premium on capital Stock of
the Borrower (as such term is used in the financial statements) and (iii)
retained earnings of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
"Competitive Bid": an offer by a Lender, in the form of Exhibit F, to
make a Competitive Bid Loan.
"Competitive Bid Accept/Reject Letter": a notification given by the
Borrower pursuant to Section 2.4 in the form of Exhibit G.
"Competitive Bid Loan": each Loan from a Lender to the Borrower
pursuant to Section 2.4.
5
"Competitive Bid Loan Confirmation": a confirmation by the
Administrative Agent to a Lender of the acceptance by the Borrower of any
Competitive Bid (or Portion thereof) made by such Lender, substantially in the
form of Exhibit H.
"Competitive Bid Request": a request by the Borrower, substantially in
the form of Exhibit D, for Competitive Bids.
"Competitive Interest Period": as to any Competitive Bid Loan, the
period commencing on the date of such Competitive Bid Loan and ending on the
date requested in the Competitive Bid Request with respect to such Competitive
Bid Loan, which date shall not be earlier than 7 days after the date of such
Competitive Bid Loan or later than 180 days after the date of such Competitive
Bid Loan; provided, however, that if any Competitive 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 such next succeeding Business Day would
be a date on or after the Maturity Date, in which case such Competitive Interest
Period shall end on the next preceding Business Day, and provided further that
no Competitive Interest Period shall end after the Maturity Date. Interest shall
accrue from and including the first day of a Competitive Interest Period to but
excluding the last day of such Competitive Interest Period.
"Contingent Obligation": as to any Person, any obligation of such
Person guaranteeing or in effect guaranteeing any return on any investment made
by another Person or any Indebtedness, lease, dividend or other obligation of
any other Person in any manner, whether contingent or whether directly or
indirectly, including any obligation in respect of the liabilities of any
partnership in which such other Person is a general partner, except to the
extent that such liabilities of such partnership are nonrecourse to such other
Person and its separate Property. The amount of any Contingent Obligation of a
Person shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by such Person in good faith,
provided that, notwithstanding anything in this definition to the contrary, the
amount of any Contingent Obligation of a Person in respect of any agreement by
any other Person to purchase electricity or gas from a counterparty shall be
deemed to be the maximum reasonably anticipated liability of such other Person,
as determined in good faith by such Person, net of any obligation or liability
of such counterparty to purchase electricity or gas from such other Person,
provided further that the obligations of such other Person to so purchase
electricity or gas from such counterparty shall be terminable at the election of
such other Person in the event of a default by such counterparty in its
obligations to so purchase electricity or gas for such other Person.
"Continuing Lenders": as defined in Section 2.18(b).
"Control Person": as defined in Section 2.16.
"Conversion/Continuation Date": the date on which (i) a Eurodollar
Advance is converted to an ABR Advance, (ii) the date on which an ABR Advance is
converted to a
6
Eurodollar Advance or (iii) the date on which a Eurodollar Advance is continued
as a new Eurodollar Advance.
"Corporate Officer": with respect to the Borrower, the chairman of the
board, the president, any vice president, the chief executive officer, the chief
financial officer, the secretary, the treasurer, or the controller thereof.
"Default": any of the events specified in Section 9.1, whether or not
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Dollars" and "$": lawful currency of the United States.
"Domestic Lending Office": in respect of any Lender, initially, the
office or offices of such Lender designated as such on Schedule 1.1; thereafter,
such other office of such Lender through which it shall be making or maintaining
ABR Advances or Competitive Bid Loans, as reported by such Lender to the
Administrative Agent and the Borrower, provided that any Lender may so report
different Domestic Lending Offices for all of its ABR Advances and all of its
Competitive Bid Loans, whereupon references to the Domestic Lending Office of
such Lender shall mean either or both of such offices, as applicable.
"Effective Date": June 15, 2000.
"Eligible Assignee": any of the following: (i) commercial banks,
finance companies, insurance companies and other financial institutions and
funds (whether a corporation, partnership or other entity) engaged generally in
making, purchasing or otherwise investing in commercial loans in the ordinary
course of its business; provided that any such entity shall have combined
capital and surplus of at least $250,000,000 and shall be entitled, as of the
date such entity becomes a Lender, to receive payments under its Note without
deduction or withholding with respect to United States federal income tax, (ii)
each of the Lenders and (iii) any affiliate of a Lender.
"Employee Benefit Plan": an employee benefit plan within the meaning
of Section 3(3) of ERISA maintained, sponsored or contributed to by the
Borrower, any of the Material Subsidiaries or any ERISA Affiliate.
"Employee Stock Ownership Plan": The Cleco Corporation 401(k) Savings
and Investment Plan ESOP Trust, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with Section 8.4.
"Environmental Laws": any and all federal, state and local laws
relating to the use, storage, transporting, manufacturing, handling, discharge,
disposal or recycling of Hazardous Substances or pollutants and including (i)
the Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 USCA (S)9601 et seq., (ii) the Resource Conservation and Recovery
Act of 1976, as amended, 42 USCA (S)6901 et seq., (iii) the Toxic Substance
Control Act, as amended, 15 USCA (S)2601 et. seq., (iv) the Water
7
Pollution Control Act, as amended, 33 USCA (S)1251 et. seq., (v) the Clean Air
Act, as amended, 42 USCA (S)7401 et seq., (vi) the Hazardous Materials
Transportation Authorization Act of 1994, as amended, 49 USCA (S)5101 et seq.,
and (viii) all rules and regulations under any of the foregoing and under any
analogous state laws, judgments, decrees and injunctions and any analogous state
laws applicable to the Borrower or any of the Material Subsidiaries.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations issued thereunder, as
from time to time in effect.
"ERISA Affiliate": when used with respect to an Employee Benefit Plan,
ERISA, the PBGC or a provision of the Code pertaining to employee benefit plans,
any Person that is a member of any group of organizations within the meaning of
Section 414(b), (c), (m) or (o) of the Code of which the Borrower or any of the
Material Subsidiaries is a member.
"Eurodollar Advances": collectively, the Revolving Credit Loans (or
any portions thereof) at such time as they (or such portions) are made and/or
being maintained at a rate of interest based upon the Eurodollar Rate.
"Eurodollar Interest Period": with respect to any Eurodollar Advance
requested by the Borrower, the period commencing on, as the case may be, the
Borrowing Date or the Conversion/Continuation Date with respect to such
Eurodollar Advance and ending one, two, three or six months thereafter, as
selected by the Borrower in its irrevocable Borrowing Request or its irrevocable
Notice of Conversion/Continuation, provided, however, that (i) if any Eurodollar
Interest Period would otherwise end on a day which is not a Business Day, such
Eurodollar Interest Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such Interest Period into
another calendar month or beyond the Maturity Date, in which event such
Eurodollar Interest Period shall end on the immediately preceding Business Day,
(ii) any Eurodollar Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Eurodollar Interest Period) shall end
on the last Business Day of a calendar month and (iii) the Borrower shall select
Interest Periods so as not to have more than five different Eurodollar Interest
Periods outstanding at any one time for all Eurodollar Advances.
"Eurodollar Lending Office": in respect of any Lender, initially, the
office, branch or affiliate of such Lender designated as such on Schedule 1.1
(or, if no such office branch or affiliate is specified, its Domestic Lending
Office); thereafter, such other office, branch or affiliate of such Lender
through which it shall be making or maintaining Eurodollar Advances, as reported
by such Lender to the Administrative Agent and the Borrower.
"Eurodollar Rate": with respect to the Eurodollar Interest Period
applicable to any Eurodollar Advance, a rate of interest per annum, as
determined by the Administrative Agent and then rounded to the nearest 1/16 of
1% or, if there is no nearest 1/16 of 1%, then to
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the next higher 1/16 of 1%, equal to the rate, as reported by BNY to the
Administrative Agent, quoted by BNY to leading banks in the interbank eurodollar
market as the rate at which BNY is offering Dollar deposits in an amount equal
approximately to the Eurodollar Advance of BNY to which such Eurodollar Interest
Period shall apply for a period equal to such Eurodollar Interest Period, as
quoted at approximately 11:00 a.m. two Business Days prior to the first day of
such Eurodollar Interest Period.
"Event of Default": any of the events specified in Section 9.1,
provided that any requirement specified in Section 9.1 for the giving of notice,
the lapse of time, or both, or any other condition specified in Section 9.1, has
been satisfied.
"Extension Request": as defined in Section 2.18(a).
"Facility Fee": as defined in Section 3.1(a).
"Federal Funds Rate": for any day, a rate per annum (expressed as a
decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%), equal
to the weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day, provided that (i) if the day for which such rate
is to be determined is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
of the quotations for such day on such transactions received by BNY as
determined by BNY and reported to the Administrative Agent.
"FERC": the Federal Energy Regulatory Commission or any Governmental
Authority succeeding to the functions thereof.
"FERC Order": that certain letter order, dated August 12, 1998, in
Docket No. ES98-37-000, issued by FERC, or any renewal or replacement order
thereof, together with any supplemental order thereto, in each case authorizing
the Borrower to issue notes or drafts maturing not more than one year after the
date of issue or renewal thereof or assumption of liability thereon (in each
case as described in Section 204(e) of the Federal Power Act, as amended and in
effect from time to time) in an aggregate principal amount not less than the sum
of the Commitments hereunder plus the aggregate principal amount of any such
notes or drafts of the Borrower (other than the Notes) outstanding from time to
time.
"Financial Statements": as defined in Section 4.11.
"GAAP": generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and in the statements and
pronouncements of the Financial Accounting Standards Board or in such other
statement by such other entity as may be approved by a
9
significant segment of the accounting profession, which are applicable to the
circumstances as of the date of determination, consistently applied. If at any
time any change in GAAP would affect the computation of any financial
requirement set forth in this Agreement, the Administrative Agent, the Lenders
and the Borrower shall negotiate in good faith to amend such requirement to
reflect such change in GAAP (subject to the approval of the Required Lenders),
provided that, until so amended, (i) such requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (ii) the
Borrower shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such
requirement made before and after giving effect to such change in GAAP.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
and any court or arbitrator.
"Hazardous Substance": (i) any hazardous or toxic substance, material
or waste listed in the United States Department of Transportation Hazardous
Materials Table (49 CFR (S)172.101) or by the Environmental Protection Agency as
hazardous substances (40 CFR Part 302), and amendments thereto and replacements
therefor, and (ii) any substance, pollutant or material defined as, or
designated in, any Environmental Law as a "hazardous substance," "toxic
substance," "hazardous material," "hazardous waste," "restricted hazardous
waste," "pollutant," "toxic pollutant" or words of similar import.
"Highest Lawful Rate": as to any Lender, the maximum rate of interest,
if any, that at any time or from time to time may be contracted for, taken,
charged or received by such Lender on the Note held thereby or which may be
owing to such Lender pursuant to this Agreement and the other Loan Documents
under the laws applicable to such Lender and this transaction.
"Immaterial Subsidiary": any Subsidiary of the Borrower that is not
designated as a Material Subsidiary, or that is designated as an Immaterial
Subsidiary, in each case in accordance with the terms hereof.
"Indebtedness": as to any Person, at a particular time, all items
which constitute, without duplication, (i) indebtedness for borrowed money or
the deferred purchase price of Property (other than trade payables incurred in
the ordinary course of business), (ii) indebtedness evidenced by notes, bonds,
debentures or similar instruments, (iii) obligations with respect to any
conditional sale or title retention agreement, (iv) indebtedness arising under
acceptance facilities and the amount available to be drawn under all letters of
credit issued for the account of such Person and, without duplication, all
drafts drawn thereunder to the extent such Person shall not have reimbursed the
issuer in respect of the issuer's payment of such drafts, (v) all liabilities
secured by any Lien on any Property owned by such Person even though such Person
has not assumed or otherwise become liable for the payment thereof (other than
carriers', warehousemen's, mechanics', repairmen's or other like non-consensual
10
statutory Liens arising in the ordinary course of business), (vi) liabilities in
respect of any obligation (contingent or otherwise) to purchase, redeem, retire,
acquire or make any other payment in respect of any shares of equity securities
or any option, warrant or other right to acquire any shares of equity
securities, (vii) obligations under Capital Lease Obligations, and (viii)
Contingent Obligations of such Person in respect of Indebtedness of others.
"Indemnified Person": as defined in Section 11.11.
"Intellectual Property": all copyrights, trademarks, servicemarks,
patents, trade names and service names.
"Inter-Affiliate Policies Agreement": the Inter-Affiliate Policies of
Cleco Corporation, dated as of February 8, 1999, as the same may be amended,
supplemented or otherwise modified from time to time.
"Interest Payment Date": (i) as to any ABR Advance, the last day of
each March, June, September and December commencing on the first of such days to
occur after such ABR Advance is made or any Eurodollar Advance is converted to
an ABR Advance, (ii) as to any Eurodollar Advance in respect of which the
Borrower has selected a Eurodollar Interest Period of one, two or three months,
the last day of such Interest Period, (iii) as to any Eurodollar Advance in
respect of which the Borrower has selected a Eurodollar Interest Period of six
months, the day which is three months after the first day of such Interest
Period and the last day of such Interest Period, (iv) as to any Competitive Bid
Loan as to which the Borrower has selected an Interest Period of 90 days or
less, the last day of such Competitive Interest Period, and (v) as to any
Competitive Bid Loan as to which the Borrower has selected a Competitive
Interest Period of more than 90 days, the day which is 90 days after the first
day of such Competitive Interest Period and the last day of each subsequent 90-
day period thereafter or, if sooner, the last day of such Competitive Interest
Period.
"Interest Period": a Eurodollar Interest Period or a Competitive
Interest Period, as the context may require.
"Invitation to Bid": an invitation to make Competitive Bids in the
form of Exhibit E.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit or
preferential arrangement, encumbrance, lien (statutory or other), or other
security agreement or security interest of any kind or nature whatsoever,
including any conditional sale or other title retention agreement and any
capital or financing lease having substantially the same economic effect as any
of the foregoing.
"Loan Documents": collectively, this Agreement and the Notes.
"Loans": the Revolving Credit Loans and/or the Competitive Bid Loans,
as the case may be.
11
"LPSC": the Louisiana Public Service Commission or any Governmental
Authority succeeding to the functions thereof.
"Margin Stock": any "margin stock", as defined in Regulation U of the
Board of Governors of the Federal Reserve System, as the same may be amended or
supplemented from time to time.
"Material Adverse Change": a material adverse change in (i) the
financial condition, operations, business, prospects or Property of (a) the
Borrower or (b) the Borrower and the Material Subsidiaries, taken as a whole,
(ii) the ability of the Borrower to perform its obligations under the Loan
Documents or (iii) the ability of the Administrative Agent and the Lenders to
enforce their rights and remedies under the Loan Documents.
"Material Adverse Effect": a material adverse effect on (i) the
financial condition, operations, business, prospects or Property of (a) the
Borrower or (b) the Borrower and the Material Subsidiaries, taken as a whole,
(ii) the ability of the Borrower to perform its obligations under the Loan
Documents or (iii) the ability of the Administrative Agent and the Lenders to
enforce their rights and remedies under the Loan Documents.
"Material Subsidiary": each of the Subsidiaries of the Borrower
designated as such on Schedule 4.1 and any other Subsidiary of the Borrower that
has been designated as such in accordance with Section 7.12, in each case unless
and until such Subsidiary or other Subsidiary, as the case may be, is designated
as an Immaterial Subsidiary pursuant to such Section.
"Material Total Assets": as of any date of determination the total
assets of the Borrower and the Material Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
"Maturity Date": the day which is 364 days after the Effective Date
(or, if such date is not a Business Day, the Business Day immediately preceding
such day), as the same may be extended from time to time in accordance with
Section 2.18, or such earlier date on which the Aggregate Commitments shall
terminate in accordance with Section 2.5 or 9.1.
"Maximum Offer": as defined in Section 2.4(b).
"Maximum Request": as defined in Section 2.4(a).
"Moody's": Xxxxx'x Investors Service, Inc., or any successor thereto.
"Multiemployer Plan": a Pension Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Non-Extending Lender": as defined in Section 2.18(b).
12
"Note": with respect to each Lender in respect of such Lender's
Revolving Credit Loans and Competitive Bid Loans, a promissory note,
substantially in the form of Exhibit B, payable to the order of such Lender;
each such promissory note having been made by the Borrower and dated the
Effective Date, including all replacements thereof and substitutions therefor.
"Notice of Conversion/Continuation": a notice substantially in the
form of Exhibit I.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA, or any Governmental Authority succeeding to
the functions thereof.
"Pension Plan": at any date of determination, any Employee Benefit
Plan (including a Multiemployer Plan), the funding requirements of which (under
Section 302 of ERISA or Section 412 of the Code) are, or at any time within the
six years immediately preceding such date, were in whole or in part, the
responsibility of the Borrower, any of the Material Subsidiaries or any ERISA
Affiliate.
"Permitted Liens": Liens permitted to exist under Section 8.1.
"Person": any individual, firm, partnership, joint venture,
corporation, association, business enterprise, limited liability company, joint
stock company, unincorporated association, trust, Governmental Authority or any
other entity, whether acting in an individual, fiduciary, or other capacity,
and for the purpose of the definition of "ERISA Affiliate", a trade or business.
"Portion": as defined in Section 2.4(b).
"Pricing Level": Pricing Level I, Pricing Level II, Pricing Level III,
Pricing Level IV, Pricing Level V, or Pricing Level VI, as the context may
require.
"Pricing Level I": any time when the Senior Debt Rating is A+ or
higher by S&P or A1 or higher by Moody's.
"Pricing Level II": any time when the Senior Debt Rating is A- or
higher by S&P or A3 or higher by Moody's and Pricing Level I does not apply.
"Pricing Level III": any time when the Senior Debt Rating is BBB+ or
higher by S&P or Baa1 or higher by Moody's and Pricing Levels I and II do not
apply.
"Pricing Level IV": any time when the Senior Debt Rating is BBB or
higher by S&P or Baa2 or higher by Moody's and Pricing Levels I, II and III do
not apply.
"Pricing Level V": any time when the Senior Debt Rating is BBB- or
higher by S&P or Baa3 or higher by Moody's and Pricing Levels I, II, III and IV
do not apply.
13
"Pricing Level VI": any time when the Senior Debt Rating is BB+ or
less by S&P or Ba1 or less by Moody's and Pricing Levels I, II, III, IV and V do
not apply or, at any time when the Borrower does not have a Senior Debt Rating
from S&P or Moody's.
"Prohibited Transaction": a transaction that is prohibited under
Section 4975 of the Code or Section 406 of ERISA and not exempt under Section
4975 of the Code or Section 408 of ERISA.
"Property": all types of real, personal, tangible, intangible or mixed
property.
"Proposed Bid Rate": as applied to any Remaining Interest Period with
respect to a Lender's Competitive Bid Loan, the rate per annum that such Lender
in good faith would have quoted to the Borrower had the Borrower requested that
such Lender make a Competitive Bid Loan on the first day of such Remaining
Interest Period, assuming no Default or Event of Default existed on such day and
that the Borrower had the right to borrow hereunder on such day, such rate to be
determined by such Lender in good faith in its sole discretion.
"Real Property": all real property owned or leased (or previously
owned or leased) by the Borrower or any of the Material Subsidiaries (or any of
their respective predecessors).
"Remaining Interest Period": (i) in the event that the Borrower shall
fail for any reason to borrow a Revolving Credit Loan in respect of which it
shall have requested a Eurodollar Advance or convert an Advance to, or continue
an Advance as, a Eurodollar Advance after it shall have notified the
Administrative Agent of its intent to do so, a period equal to the Eurodollar
Interest Period that the Borrower elected in respect of such Eurodollar Advance,
(ii) in the event that the Borrower shall fail for any reason to borrow a
Competitive Bid Loan after it shall have accepted one or more offers of
Competitive Bid Loans, a period equal to the Competitive Interest Period that
the Borrower elected in respect of such Competitive Bid Loan, (iii) in the event
that a Eurodollar Advance or a Competitive Bid Loan shall terminate for any
reason prior to the last day of the Interest Period applicable thereto, a period
equal to the remaining portion of such Interest Period if such Interest Period
had not been so terminated, or (iv) in the event that the Borrower shall prepay
or repay all or any part of the principal amount of a Eurodollar Advance or a
Competitive Bid Loan prior to the last day of the Interest Period applicable
thereto, a period equal to the period from and including the date of such
prepayment or repayment to but excluding the last day of such Interest Period,
as the case may be.
"Reportable Event": with respect to any Pension Plan, (i) any event
set forth in Section 4043(b) (other than a Reportable Event as to which the 30
day notice requirement is waived by the PBGC under applicable regulations),
4062(c) or 4063(a) or ERISA or the regulations thereunder, (ii) an event
requiring the Borrower, any of the Material Subsidiaries or any ERISA Affiliate
to provide security to such Pension Plan under Section 401(a)(29) of the Code,
or (iii) any failure to make any payment required by Section 412(m) of the Code.
14
"Required Lenders": Lenders having Commitments equal to at least 51%
of the Aggregate Commitments or, if the Aggregate Commitments have been
terminated or otherwise no longer exist, Lenders having an unpaid principal
balance of Loans equal to at least 51% of the aggregate outstanding Loans.
"Revolving Credit Loan" and "Revolving Credit Loans": as defined in
Section 2.1.
"S&P": Standard & Poor's Ratings Group, a division of The XxXxxx-Xxxx
Companies, or any successor thereto.
"SEC": the Securities and Exchange Commission or any Governmental
Authority succeeding to the functions thereof.
"Senior Debt Rating": the Borrower's senior unsecured long-term debt
ratings designated from time to time by S&P and Moody's.
"Special Counsel": Xxxxx Xxxx LLP, special counsel to the
Administrative Agent.
"Stock": any and all shares, rights, interests, participations,
warrants or other equivalents (however designated) of corporate stock.
"Submission Deadline": as defined in Section 2.4(b).
"Subsidiary": as to any Person, any corporation, association,
partnership, limited liability company, joint venture or other business entity
of which such Person or any Subsidiary of such Person, directly or indirectly,
either (i) in respect of a corporation, owns or controls more than 50% of the
outstanding Stock having ordinary voting power to elect a majority of the board
of directors or similar managing body, irrespective of whether a class or
classes shall or might have voting power by reason of the happening of any
contingency, or (ii) in respect of an association, partnership, joint venture or
other business entity, is entitled to share in more than 50% of the profits and
losses, however determined. Unless the context otherwise requires, references to
a Subsidiary shall be deemed to be references to a Subsidiary of the Borrower.
"Tax": any present or future tax, levy, impost, duty, charge, fee,
deduction or withholding of any nature, and whatever called, by a Governmental
Authority, on whomsoever and wherever imposed, levied, collected, withheld or
assessed.
"Tax on the Overall Net Income": as to any Person, a Tax imposed by
the jurisdiction in which that Person's principal office (and/or, in the case of
a Lender, its Domestic Lending Office) is located, or by any political
subdivision or taxing authority thereof, or in which that Person is deemed to be
doing business, on all or part of the net income, profits or gains of that
Person (whether worldwide, or only insofar as such income, profits or gains are
considered to arise in or to relate to a particular jurisdiction, or otherwise).
15
"Terminating Indebtedness": collectively, the Indebtedness (together
with all unpaid and accrued interest and fees and other unpaid sums) of the
Borrower under the Credit Agreement, dated as of June 15, 1995, by and among the
Borrower, the lenders party thereto, and BNY, as agent, and all agreements,
instruments and other documents executed or delivered in connection therewith,
in each case as amended, supplemented or otherwise modified from time to time.
"Termination Event": with respect to any Pension Plan, (i) a
Reportable Event, (ii) the termination of such Pension Plan, or the filing of a
notice of intent to terminate such Pension Plan, or the treatment of such
Pension Plan amendment as a termination under Section 4041(c) of ERISA, (iii)
the institution of proceedings to terminate such Pension Plan under Section 4042
of ERISA, or (iv) the appointment of a trustee to administer such Pension Plan
under Section 4042 of ERISA.
"Total Capitalization": at any time, the difference between (i) the
sum of each of the following at such time with respect to the Borrower and the
Subsidiaries, determined on a consolidated basis in accordance with GAAP: (a)
preferred Stock (less deferred compensation relating to unallocated convertible
preferred Stock held by the Employee Stock Ownership Plan), plus (b) common
Stock and any premium on capital Stock thereon (as such term is used in the
Financial Statements), plus (c) retained earnings, plus (d) Total Indebtedness,
and (ii) treasury Stock at such time of the Borrower and the Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
"Total Indebtedness": at any time, all Indebtedness (net of
unamortized premium and discount (as such term is used in the Financial
Statements)) at such time of the Borrower and the Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
"United States": the United States of America.
"Utilization Fee": as defined in Section 3.1(b).
1.2. Principles of Construction
(a) All terms defined in a Loan Document shall have the meanings given such
terms therein when used in the other Loan Documents or any certificate or
opinion made or delivered pursuant thereto, unless otherwise defined
therein.
(b) As used in the Loan Documents and in any certificate or opinion made or
delivered pursuant thereto, accounting terms not defined in Section 1.1,
and accounting terms partly defined in Section 1.1, to the extent not
defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein", "hereto" and "hereunder" and similar words
when used in a Loan Document shall refer to such Loan Document as a whole
and not to any particular provision thereof, and Section, schedule and
exhibit references contained therein shall refer to Sections thereof or
schedules or exhibits thereto, unless otherwise
16
expressly provided therein.
(d) The phrase "may not" is prohibitive and not permissive; the word
"including" is not limiting; and the word "or" is not exclusive.
(e) Unless the context otherwise requires, words in the singular number include
the plural, and words in the plural include the singular.
(f) Unless specifically provided in a Loan Document to the contrary, references
to a time shall refer to New York City time.
(g) Unless specifically provided in a Loan Document to the contrary, in the
computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each means "to but excluding".
(h) References in any Loan Document to a fiscal period shall refer to that
fiscal period of the Borrower.
2. AMOUNT AND TERMS OF LOANS
2.1. Revolving Credit Loans
Subject to the terms and conditions hereof, each Lender severally
agrees to make revolving credit loans (each a "Revolving Credit Loan" and, as
the context may require, collectively with all other Revolving Credit Loans of
such Lender and with the Revolving Credit Loans of all other Lenders, the
"Revolving Credit Loans") to the Borrower from time to time during the
Commitment Period, provided, however, that immediately after giving effect
thereto (i) the outstanding principal balance of such Lender's Revolving Credit
Loans would not exceed such Lender's Commitment, and (ii) the aggregate
outstanding principal balance of all Lenders' Revolving Credit Loans and
Competitive Bid Loans would not exceed the Aggregate Commitments. During the
Commitment Period, the Borrower may borrow, prepay in whole or in part and
reborrow under the Aggregate Commitments, all in accordance with the terms and
conditions of this Agreement. The Borrower hereby unconditionally promises to
pay to the Administrative Agent for the account of each Lender the then
outstanding principal balance of each Revolving Credit Loan on the Maturity
Date.
2.2. Notes
The Revolving Credit Loans and Competitive Bid Loans made by a Lender
shall be evidenced by a promissory note of the Borrower, substantially in the
form of Exhibit B, payable to the order of such Lender and representing the
obligation of the Borrower to pay the sum of (i) the aggregate unpaid principal
balance of all Revolving Credit Loans made by such Lender plus (ii) the
aggregate unpaid principal balance of all Competitive Bid Loans made by such
Lender, in each case with interest thereon as prescribed in Section 2.8. Each
Note shall (a) be dated the Effective Date, (b) be stated to mature on the
Maturity Date and (c)
17
bear interest from the date thereof on the unpaid principal balance thereof at
the applicable interest rate or rates per annum determined as provided in
Section 2.8, payable as specified in Section 2.8.
2.3. Revolving Credit Loans; Procedure
(a) The Borrower may borrow Revolving Credit Loans under the Aggregate
Commitments on any Business Day during the Commitment Period, provided,
however, that the Borrower shall notify the Administrative Agent (by
telephone or facsimile) no later than (i) 11:00 a.m., three Business Days
prior to the requested Borrowing Date, in the case of Eurodollar Advances,
and (ii) 11:30 a.m., on the requested Borrowing Date, in the case of ABR
Advances, in each case specifying: (A) the aggregate principal amount to be
borrowed under the Aggregate Commitments, (B) the requested Borrowing Date,
(C) whether such borrowing is to consist of one or more Eurodollar
Advances, ABR Advances, or a combination thereof, and (D) if the borrowing
is to consist of one or more Eurodollar Advances, the length of the
Eurodollar Interest Period for each such Eurodollar Advance, provided
further, however, that no Eurodollar Interest Period selected in respect of
any Revolving Credit Loan shall end after the Maturity Date. If the
Borrower fails to give timely notice in connection with a request for a
Eurodollar Advance, the Borrower shall be deemed to have elected that such
Advance shall be made as an ABR Advance. Each such notice shall be
irrevocable and confirmed promptly by delivery to the Administrative Agent
of a Borrowing Request. Each ABR Advance shall be in an aggregate
principal amount equal to $5,000,000 or an integral multiple of $1,000,000
in excess thereof (or, if the unused amount of the Aggregate Commitments is
less than such amount, then such lesser amount of the unused Aggregate
Commitments), and each Eurodollar Advance shall be in an aggregate
principal amount equal to $5,000,000 or an integral multiple of $1,000,000
in excess thereof.
(b) Upon receipt of each notice of borrowing from the Borrower, the
Administrative Agent shall promptly notify each Lender thereof. Subject to
its receipt of the notice referred to in the preceding sentence, each
Lender will make the amount of its Commitment Percentage of each borrowing
available to the Administrative Agent for the account of the Borrower at
the office of the Administrative Agent provided for in Section 11.2 not
later than 2:00 p.m. on the relevant Borrowing Date requested by the
Borrower, in funds immediately available to the Administrative Agent at
such office. The amounts so made available to the Administrative Agent on
such Borrowing Date will then, subject to the satisfaction of the terms and
conditions of this Agreement, be made available on such date to the
Borrower by the Administrative Agent at the office of the Administrative
Agent provided for in Section 11.2 by crediting the account of the Borrower
on the books of such office with the aggregate of said amounts received by
the Administrative Agent.
(c) Unless the Administrative Agent shall have received prior notice from a
Lender (by telephone or otherwise, such notice to be promptly confirmed by
facsimile or other writing) that such Lender will not make available to the
Administrative Agent such Lender's Commitment Percentage of the Revolving
Credit Loans requested by the Borrower, the Administrative Agent may assume
that such Lender has made such share available to the
18
Administrative Agent on the Borrowing Date in accordance with this Section,
provided that such Lender received notice of the proposed borrowing from
the Administrative Agent, and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on the Borrowing Date
a corresponding amount. If and to the extent such Lender shall not have so
made its Commitment Percentage of such Loans available to the
Administrative Agent, such Lender and the Borrower severally agree to pay
to the Administrative Agent forthwith on demand such corresponding amount
(to the extent not previously paid by the other), together with interest
thereon for each day from the date such amount is made available to the
Borrower to the date such amount is paid to the Administrative Agent, at a
rate per annum equal to, in the case of the Borrower, the applicable
interest rate set forth in Section 2.8 for such Loans, and, in the case of
such Lender, the Federal Funds Rate in effect on each such day (as
determined by the Administrative Agent in accordance with the definition of
"Federal Funds Rate" set forth in Section 1.1). Such payment by the
Borrower, however, shall be without prejudice to its rights against such
Lender. If such Lender shall pay to the Administrative Agent such
corresponding amount, such amount so paid shall constitute such Lender's
Revolving Credit Loan as part of the Revolving Credit Loans for purposes of
this Agreement, which Revolving Credit Loan shall be deemed to have been
made by such Lender on the Borrowing Date applicable to such Revolving
Credit Loans. The failure of any Lender to make its Commitment Percentage
of any requested Revolving Credit Loan available to the Administrative
Agent pursuant to this Section shall not relieve any other Lender of such
other Lender's obligation to make its own Commitment Percentage of such
Revolving Credit Loan available to the Administrative Agent in accordance
with this Section, provided, however, that no Lender shall be liable or
responsible for the failure by any other Lender to make any Revolving
Credit Loans required to be made by such other Lender.
(d) If a Lender makes a new Revolving Credit Loan on a Borrowing Date on which
the Borrower is to repay a Revolving Credit Loan from such Lender, such
Lender shall apply the proceeds of such new Revolving Credit Loan to make
such repayment, and only the excess of the proceeds of such new Revolving
Credit Loan over the Revolving Credit Loan being repaid need be made
available to the Administrative Agent, for the Borrower's account.
(e) Without in any way limiting the obligation of the Borrower to confirm in
writing any telephonic notice of borrowing given to the Administrative
Agent, the Administrative Agent may act without liability upon the basis of
telephonic notice of such borrowing believed by the Administrative Agent in
good faith to be from an authorized officer of the Borrower prior to
receipt of written confirmation. In each such case, the Administrative
Agent's records with regard to any such telephone notice shall be
presumptively correct, absent manifest error.
2.4. Competitive Bid Loans; Procedure
(a) The Borrower may make Competitive Bid Requests by 11:00 a.m. at least two
Business Days prior to the proposed Borrowing Date for one or more
Competitive
19
Bid Loans. Each Competitive Bid Request given to the Administrative Agent
(which shall promptly on the same day give notice thereof to each Lender by
facsimile of an Invitation to Bid if the Competitive Bid Request is not
rejected pursuant to this Section), shall be by telephone (confirmed by
facsimile or other written electronic means promptly on the same day by the
delivery of a Competitive Bid Request signed by the Borrower), and shall
specify (i) the proposed Borrowing Date, which shall be a Business Day,
(ii) the aggregate amount of the requested Competitive Bid Loans (the
"Maximum Request"), which amount (A) shall not exceed an amount which, on
the proposed Borrowing Date and after giving effect to the requested
Competitive Bid Loans, would cause the aggregate outstanding principal
balance of all Loans of all Lenders to exceed the Aggregate Commitments and
(B) shall be in a principal amount equal to $3,000,000 or an integral
multiple of $1,000,000 in excess thereof, (iii) the Competitive Interest
Period(s) therefor and the last day of each such Competitive Interest
Period, and (iv) if more than one Competitive Interest Period is so
specified, the principal amount allocable to each such Competitive Interest
Period (which amount shall not be less than $3,000,000 or an integral
multiple of $1,000,000 in excess thereof). A Competitive Bid Request that
does not conform substantially to the form of Exhibit D shall be rejected,
and the Administrative Agent shall promptly notify the Borrower of such
rejection. Notwithstanding anything contained herein to the contrary, (1)
not more than three Competitive Interest Periods may be requested pursuant
to any Competitive Bid Request and (2) not more than five Competitive Bid
Loans may be outstanding at any one time.
(b) Each Lender in its sole discretion may (but is not obligated to) submit one
or more Competitive Bids to the Administrative Agent not later than 10:00
a.m. at least one Business Day prior to the proposed Borrowing Date
specified in such Competitive Bid Request (such time being herein called
the "Submission Deadline"), by facsimile or other writing, and thereby
irrevocably offer to make all or any part (any such part referred to as a
"Portion") of any Competitive Bid Loan described in the relevant
Competitive Bid Request at a rate of interest per annum (each a "Bid Rate")
specified therein in an aggregate principal amount of not less than
$3,000,000 or an integral multiple of $1,000,000 in excess thereof,
provided that Competitive Bids submitted by the Administrative Agent may
only be submitted if the Administrative Agent notifies the Borrower of the
terms of its Competitive Bid not later than thirty minutes prior to the
Submission Deadline. Multiple Competitive Bids may be delivered to and by
the Administrative Agent. The aggregate Portions of Competitive Bid Loans
for any or all Competitive Interest Periods offered by each Lender in its
Competitive Bid may exceed the Maximum Request contained in the relevant
Competitive Bid Request, provided that each Competitive Bid shall set forth
the maximum aggregate amount of the Competitive Bid Loans offered thereby
which the Borrower may accept (the "Maximum Offer"), which Maximum Offer
shall not exceed the Maximum Request. If any Lender shall elect not to
make a Competitive Bid, such Lender shall so notify the Administrative
Agent by facsimile not later than the Submission Deadline therefor,
provided, however, that the failure by any Lender to give any such notice
shall not obligate such Lender to make any Competitive Bid Loan.
(c) The Administrative Agent shall promptly give notice by telephone (promptly
confirmed by facsimile or other writing) to the Borrower of all Competitive
Bids
20
received by the Administrative Agent prior to the Submission Deadline
which comply in all material respects with this Section. The Borrower
shall, in its sole discretion but subject to Section 2.4(d), irrevocably
accept or reject any such Competitive Bid (or any Portion thereof) not
later than 1:00 p.m. on the day of the Submission Deadline by notice to the
Administrative Agent by telephone (confirmed by facsimile or other writing
in the form of a Competitive Bid Accept/Reject Letter promptly the same
day). Promptly upon receipt by the Administrative Agent of such a
Competitive Bid Accept/Reject Letter, the Administrative Agent will give
notice to each Lender that submitted a Competitive Bid as to the extent, if
any, that such Lender's Competitive Bid shall have been accepted. If the
Administrative Agent fails to receive notice from the Borrower of its
acceptance or rejection of any Competitive Bids at or prior to 1:00 p.m. on
the day of the Submission Deadline, all such Competitive Bids shall be
deemed to have been rejected by the Borrower, and the Administrative Agent
will give to each Lender that submitted a Competitive Bid notice of such
rejection by telephone on such day. In due course following the acceptance
of any Competitive Bid, the Administrative Agent shall notify each Lender
which submitted a Competitive Bid, in the form of a Competitive Bid Loan
Confirmation, of the amount, maturity date and Bid Rate for each
Competitive Bid Loan.
(d) If the Borrower accepts a Portion of a proposed Competitive Bid Loan for a
single Competitive Interest Period at the Bid Rate provided therefor in a
Lender's Competitive Bid, such Portion shall be in a principal amount of
$3,000,000 or an integral multiple of $1,000,000 in excess thereof (subject
to such lesser allocation as may be made pursuant to the provisions of this
Section 2.4(d)). The aggregate principal amount of Competitive Bid Loans
accepted by the Borrower following Competitive Bids responding to a
Competitive Bid Request shall not exceed the Maximum Request. The
aggregate principal amount of Competitive Bid Loans accepted by the
Borrower pursuant to a Lender's Competitive Bid shall not exceed the
Maximum Offer therein contained. If the Borrower accepts any Competitive
Bid Loans or Portion offered in any Competitive Bid, the Borrower must
accept Competitive Bids (and Competitive Bid Loans and Portions thereby
offered) based exclusively upon the successively lowest Bid Rates within
each Competitive Interest Period and no other criteria. If two or more
Lenders submit Competitive Bids with identical Bid Rates for the same
Competitive Interest Period and the Borrower accepts any thereof, the
Borrower shall, subject to the first three sentences of this Section
2.4(d), accept all such Competitive Bids as nearly as possible in
proportion to the amounts of such Lenders' respective Competitive Bids with
identical Bid Rates for such Competitive Interest Period, provided, that if
the amount of Competitive Bid Loans to be so allocated is not sufficient to
enable each such Lender to make such Competitive Bid Loan (or Portions
thereof) in an aggregate principal amount of $3,000,000 or an integral
multiple of $1,000,000 in excess thereof, the Borrower shall round the
Competitive Bid Loans (or Portions thereof) allocated to such Lender or
Lenders as the Borrower shall select as necessary to a minimum of
$1,000,000 or an integral multiple of $500,000 in excess thereof.
(e) Not later than 2:00 p.m. on the relevant Borrowing Date, each Lender whose
Competitive Bid was accepted by the Borrower shall make available to the
Administrative Agent at its office provided for in Section 11.2, in
immediately available
21
funds, the proceeds of such Lender's Competitive Bid Loan(s). The amounts
so made available to the Administrative Agent on such Borrowing Date will
then, subject to the satisfaction of the terms and conditions of this
Agreement, as determined by the Administrative Agent, be made available on
such date to the Borrower by the Administrative Agent at the office of the
Administrative Agent provided for in Section 11.2 by crediting the account
of the Borrower on the books of such office with the aggregate of said
amounts received by the Administrative Agent.
(f) All notices required by this Section 2.4 shall be given in accordance with
Section 11.2.
(g) The Competitive Bid Loans made by each Lender shall be evidenced by a Note
referred to in Section 2.2. Each Competitive Bid Loan shall be due and
payable on the last day of the Competitive Interest Period applicable
thereto.
2.5. Voluntary Reduction or Termination of Aggregate Commitments
The Borrower shall have the right, upon at least three Business Days'
prior written notice to the Administrative Agent, at any time to terminate the
Aggregate Commitments or from time to time to permanently reduce the Aggregate
Commitments, provided, however, that (i) any such reduction shall be in the
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and
(ii) the Borrower shall not terminate or reduce the Aggregate Commitments if,
after giving effect to any concurrent prepayment of the Loans in accordance with
Section 2.6, the aggregate outstanding principal balance of all Lenders'
Revolving Credit Loans and Competitive Bid Loans would exceed the Aggregate
Commitments as so reduced. Reductions of the Aggregate Commitments shall be
applied pro rata according to the Commitment Percentage of each Lender.
2.6. Prepayments of the Loans
(a) Voluntary Prepayments. The Borrower may, at its option, prepay the
Revolving Credit Loans without premium or penalty, in full at any time or
in part from time to time, by notifying the Administrative Agent in writing
no later than 11:30 a.m. on the proposed prepayment date, in the case of
ABR Advances, and at least three Business Days prior to the proposed
prepayment date, in the case of Eurodollar Advances, specifying the
Revolving Credit Loans to be prepaid, the amount to be prepaid and the date
of prepayment. The Borrower may not prepay the Competitive Bid Loans.
Each such notice of a prepayment under this Section shall be irrevocable
and the amount specified in such notice shall be due and payable on the
date specified. Upon receipt of such notice, the Administrative Agent
shall promptly notify each Lender thereof. Each partial prepayment shall
be in an aggregate principal amount of (i) $5,000,000 or an integral
multiple of $1,000,000 in excess thereof or (ii) if the outstanding
principal balance of the Revolving Credit Loans is less that the minimum
amount set forth in clause (a)(i) of this Section, then such lesser
outstanding principal balance, as the case may be. After giving effect to
any partial prepayment with respect to Eurodollar Advances which were made
(whether as the result of a borrowing or a
22
conversion) on the same date and which had the same Interest Period, the
outstanding principal amount of such Eurodollar Advances shall exceed
(subject to Section 2.7) $5,000,000 or an integral multiple of $1,000,000
in excess thereof. If any prepayment is made in respect of any Eurodollar
Advance, in whole or in part, prior to the last day of the applicable
Eurodollar Interest Period, the Borrower agrees to indemnify the applicable
Lenders in accordance with Section 2.13.
(b) Mandatory Prepayments Relating to Reductions or Termination of the
Aggregate Commitments. Concurrently with each reduction or termination of
the Aggregate Commitments under Section 2.5, the Borrower shall prepay the
Revolving Credit Loans by the amount, if any, by which the aggregate unpaid
principal balance of all Lenders' Revolving Credit Loans and Competitive
Bid Loans exceeds the amount of the Aggregate Commitments after giving
effect to such reduction or termination, as the case may be.
(c) In General. Any prepayments under this Section shall be applied pro rata
according to the Commitment Percentage of each Lender.
2.7. Conversions and Continuations
(a) The Borrower may elect from time to time to convert Eurodollar Advances to
ABR Advances by giving the Administrative Agent at least one Business Day's
prior irrevocable notice of such election (confirmed by the delivery of a
Notice of Conversion/Continuation), specifying the amount to be so
converted, provided that any such conversion of Eurodollar Advances shall
only be made on the last day of the Interest Period applicable thereto. In
addition, the Borrower may elect from time to time to (i) convert ABR
Advances to Eurodollar Advances and (ii) to continue Eurodollar Advances by
selecting a new Eurodollar Interest Period therefor, in each case by giving
the Administrative Agent at least three Business Days' prior irrevocable
notice of such election (confirmed by the delivery of a Notice of
Conversion/Continuation), in the case of a conversion to, or continuation
of, Eurodollar Advances, specifying the amount to be so converted and the
initial Eurodollar Interest Period relating thereto, provided that any such
conversion of ABR Advances to Eurodollar Advances shall only be made on a
Business Day and any such continuation of Eurodollar Advances shall only be
made on the last day of the Eurodollar Interest Period applicable to the
Eurodollar Advances which are to be continued as such new Eurodollar
Advances. The Administrative Agent shall promptly provide the Lenders with
a copy of each such Notice of Conversion/Continuation. ABR Advances and
Eurodollar Advances may be converted or continued pursuant to this Section
in whole or in part, provided that conversions of ABR Advances to
Eurodollar Advances, or continuations of Eurodollar Advances, shall be in
an aggregate principal amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof. If the Borrower fails to deliver a notice of
conversion or continuation in accordance with this Section with respect to
any Advance prior to the last day of the Interest Period applicable
thereto, then, unless such Advance is repaid as provided herein, on the
last day of such Interest Period, such Advance shall be converted to, or
continued as, an ABR Advance.
23
(b) Notwithstanding anything in this Section to the contrary, no ABR Advance
may be converted to a Eurodollar Advance, and no Eurodollar Advance may be
continued, if a Default or Event of Default has occurred and is continuing
either (i) at the time the Borrower shall notify the Administrative Agent
of its election to convert or continue or (ii) on the requested
Conversion/Continuation Date. In such event, such ABR Advance shall be
automatically continued as an ABR Advance, or such Eurodollar Advance shall
be automatically converted to an ABR Advance on the last day of the
Eurodollar Interest Period applicable to such Eurodollar Advance. If an
Event of Default shall have occurred and be continuing, the Administrative
Agent shall, at the request of the Required Lenders, notify the Borrower
(by telephone or otherwise) that all, or such lesser amount as the Required
Lenders shall designate, of the outstanding Eurodollar Advances shall be
automatically converted to ABR Advances, in which event such Eurodollar
Advances shall be automatically converted to ABR Advances on the date such
notice is given.
(c) No Eurodollar Interest Period selected in respect of the conversion or
continuation of any Eurodollar Advance shall end after the Maturity Date.
(d) Each conversion or continuation shall be effected by each Lender by
applying the proceeds of its new ABR Advance or Eurodollar Advance, as the
case may be, to its Advances (or portion thereof) being converted (it being
understood that such conversion shall not constitute a borrowing for
purposes of Sections 4, 5 or 6).
(e) Without in any way limiting the obligation of the Borrower to confirm in
writing any telephonic notice of borrowing given to the Administrative
Agent, the Administrative Agent may act without liability upon the basis of
telephonic notice of such borrowing believed by the Administrative Agent in
good faith to be from an authorized officer of the Borrower prior to
receipt of written confirmation. In each such case, the Administrative
Agent's records with regard to any such telephone notice shall be
presumptively correct, absent manifest error.
2.8. Interest Rate and Payment Dates
(a) Prior to Maturity. Except as otherwise provided in Section 2.8(b), prior to
maturity, the Loans shall bear interest on the outstanding principal
balance thereof at the applicable interest rate or rates per annum set
forth below:
24
ADVANCES RATE
-------- ---------
Each ABR Advance Alternate Base Rate.
Each Eurodollar Advance Eurodollar Rate for the applicable
Eurodollar Interest Period plus the
Applicable Margin.
Each Competitive Bid Loan Bid Rate applicable thereto for the
applicable Competitive Interest
Period.
(b) Late Charges. If all or any portion of the principal balance of or interest
payable on any of the Loans or any other amount payable under the Loan
Documents shall not be paid when due (whether at the stated maturity
thereof, by acceleration or otherwise), such overdue balance or amount
shall bear interest at a rate per annum (whether before or after the entry
of a judgment thereon) equal to (i) in the case of the principal balance of
any Loan, 2% plus the rate which would otherwise be applicable pursuant to
Section 2.8(a), or (ii) in the case of any other amount, 2% plus the
Alternate Base Rate, in each case from the date of such nonpayment to, but
not including, the date such balance or such amount, as the case may be, is
paid in full. All such interest shall be payable on demand.
(c) In General. Interest on (i) ABR Advances to the extent based on the BNY
Rate shall be calculated on the basis of a 365 or 366-day year (as the case
may be) and (ii) ABR Advances to the extent based on the Federal Funds
Rate, on Eurodollar Advances and on Competitive Bid Loans shall be
calculated on the basis of a 360-day year, in each case, for the actual
number of days elapsed, including the first day but excluding the last.
Except as otherwise provided in Section 2.8(b), interest shall be payable
in arrears on each Interest Payment Date and upon each payment (including
prepayment) of the Loans (on the amount paid (or prepaid)). Any change in
the interest rate on the Loans resulting from a change in the Alternate
Base Rate shall become effective as of the opening of business on the day
on which such change shall become effective. The Administrative Agent
shall, as soon as practicable, notify the Borrower and the Lenders of the
effective date and the amount of each such change in the BNY Rate, but any
failure to so notify shall not in any manner affect the obligation of the
Borrower to pay interest on the Loans in the amounts and on the dates
required. Each determination of the Alternate Base Rate or a Eurodollar
Rate by the Administrative Agent pursuant to this Agreement shall be
conclusive and binding on all parties hereto absent manifest error. At no
time shall the interest rate payable on the Loans, together with the
Facility Fee, the Utilization Fee and all other amounts payable under the
Loan Documents, to the extent the same are construed to constitute
interest, exceed the Highest Lawful Rate. If any amount paid hereunder
would exceed the maximum amount of interest permitted by the Highest Lawful
Rate, then such amount shall automatically be reduced to such maximum
permitted amount, and interest for any subsequent period, to the extent
less than the maximum amount permitted for such period by the Highest
Lawful Rate, shall be increased
25
by the unpaid amount of such reduction. Any interest actually received for
any period in excess of such maximum allowable amount for such period shall
be deemed to have been applied as a prepayment of the Loans. The Borrower
acknowledges that to the extent interest payable on ABR Advances is based
on the BNY Rate, such rate is only one of the bases for computing interest
on loans made by the Lenders, and by basing interest payable on ABR
Advances on the BNY Rate, the Lenders have not committed to charge, and the
Borrower has not in any way bargained for, interest based on a lower or the
lowest rate at which the Lenders may now or in the future make loans to
other borrowers.
2.9. Substituted Interest Rate
In the event that (i) the Administrative Agent shall have determined
in the exercise of its reasonable discretion (which determination shall be
conclusive and binding upon the Borrower) that by reason of circumstances
affecting the interbank eurodollar market either reasonable means do not exist
for ascertaining the Eurodollar Rate or (ii) the Required Lenders shall have
notified the Administrative Agent that they have determined (which determination
shall be conclusive and binding on the Borrower) that the applicable Eurodollar
Rate will not adequately and fairly reflect the cost to such Lenders of
maintaining or funding loans bearing interest based on such Eurodollar Rate,
with respect to any portion of the Revolving Credit Loans that the Borrower has
requested be made as Eurodollar Advances or Eurodollar Advances that will result
from the requested conversion or continuation of any portion of the Advances
into or as Eurodollar Advances (each an "Affected Advance"), the Administrative
Agent shall promptly notify the Borrower and the Lenders (by telephone or
otherwise, to be promptly confirmed in writing) of such determination on or, to
the extent practicable, prior to the requested Borrowing Date or
Conversion/Continuation Date for such Affected Advances. If the Administrative
Agent shall give such notice, (a) any Affected Advances shall be made as ABR
Advances, (b) the Advances (or any portion thereof) that were to have been
converted to or continued as Affected Advances shall be converted to or
continued as ABR Advances and (c) any outstanding Affected Advances shall be
converted, on the last day of the then current Interest Period with respect
thereto, to ABR Advances. Until any notice under clause (i) or (ii), as the
case may be, of this Section has been withdrawn by the Administrative Agent (by
notice to the Borrower promptly upon either (1) the Administrative Agent's
having determined that such circumstances affecting the interbank eurodollar
market no longer exist and that adequate and reasonable means do exist for
determining the Eurodollar Rate pursuant to Section 2.8 or (2) the
Administrative Agent having been notified by such Required Lenders that
circumstances no longer render the Advances (or any portion thereof) to be
Affected Advances), no further Eurodollar Advances shall be required to be made
by the Lenders, nor shall the Borrower have the right to convert or continue all
or any portion of the Loans to Eurodollar Advances.
2.10. Taxes
(a) Payments to be Free and Clear. Provided that all documentation, if any,
then required to be delivered by any Lender or the Administrative Agent
pursuant to Section 2.10(c) has been delivered, all sums payable by the
Borrower under the Loan Documents shall
26
be paid free and clear of and (except to the extent required by law)
without any deduction or withholding on account of any Tax (other than a
Tax on the Overall Net Income of any Lender (for which payment need not be
free and clear, but no deduction or withholding shall be made unless then
required by applicable law)) imposed, levied, collected, withheld or
assessed by or within the United States or any political subdivision in or
of the United States or any other jurisdiction from or to which a payment
is made by or on behalf of the Borrower or by any federation or
organization of which the United States or any such jurisdiction is a
member at the time of payment.
(b) Grossing-up of Payments. If the Borrower or any other Person is required
by law to make any deduction or withholding on account of any such Tax
from any sum paid or payable by the Borrower to the Administrative Agent
or any Lender under any of the Loan Documents:
(i) the Borrower shall notify the Administrative Agent and such Lender of any
such requirement or any change in any such requirement as soon as the
Borrower becomes aware of it;
(ii) the Borrower shall pay any such Tax before the date on which penalties
attach thereto, such payment to be made (if the liability to pay is
imposed on the Borrower) for its own account or (if that liability is
imposed on the Administrative Agent or such Lender, as the case may be) on
behalf of and in the name of the Administrative Agent or such Lender, as
the case may be;
(iii) the sum payable by the Borrower to the Administrative Agent or a Lender in
respect of which the relevant deduction, withholding or payment is
required shall be increased to the extent necessary to ensure that, after
the making of that deduction, withholding or payment, the Administrative
Agent or such Lender, as the case may be, receives on the due date
therefor a net sum equal to what it would have received had no such
deduction, withholding or payment been required or made; and
(iv) within 30 days after paying any sum from which it is required by law to
make any deduction or withholding, and within 30 days after the due date
of payment of any Tax which it is required by clause (ii) above to pay,
the Borrower shall deliver to the Administrative Agent and the applicable
Lender evidence satisfactory to the other affected parties of such
deduction, withholding or payment and of the remittance thereof to the
relevant Governmental Authority;
provided that no additional amount shall be required to be paid to any Lender
under clause (iii) above except to the extent that any change after the date
hereof (in the case of each Lender listed on the signature pages hereof) or
after the date of the Assignment and Acceptance Agreement pursuant to which such
Lender became a Lender (in the case of each other Lender) if any such
requirement for a deduction, withholding or payment as is mentioned therein
shall result in an increase in the rate of such deduction, withholding or
27
payment from that in effect at the date of this Agreement or at the date of such
Assignment and Acceptance Agreement, as the case may be, in respect of payments
to such Lender, and provided further that any Lender claiming any additional
amounts payable pursuant to this Section 2.10 shall use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Applicable Lending Office or take other
appropriate action if the making of such a change or the taking of such action,
as the case may be, would avoid the need for, or reduce the amount of, any such
additional amounts that may thereafter accrue and would not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to such Lender.
(c) Tax Certificates. Each Lender that is organized under the laws of any
jurisdiction other than the United States shall deliver to the
Administrative Agent for transmission to the Borrower, on or prior to the
Effective Date (in the case of each Lender listed on the signature pages
hereof) or on the effective date of the Assignment and Acceptance Agreement
pursuant to which it becomes a Lender (in the case of each other Lender),
and at such other times as may be necessary in the determination of the
Borrower or the Administrative Agent (each in the reasonable exercise of
its discretion), including upon the occurrence of any event requiring a
change in the most recent counterpart of any form set forth below
previously delivered by such Lender to the Borrower, such certificates,
documents or other evidence, properly completed and duly executed by such
Lender (including Internal Revenue Service Form 1001, Form 4224, Form W-8
or Form W-9, or any successor form, or any other certificate or statement
of exemption required by Treasury Regulations Section 1.1441-4(a) or
Section 1.1441-6(c) or any successor thereto) to establish that such Lender
is not subject to deduction or withholding of United States federal income
tax under Section 1441 or 1442 of the Code or otherwise (or under any
comparable provisions of any successor statute) with respect to any
payments to such Lender of principal, interest, fees or other amounts
payable under any of the Loan Documents. The Borrower shall not be
required to pay any additional amount to any such Lender under Section
2.10(b)(iii) if such Lender shall have failed to satisfy the requirements
of the immediately preceding sentence; provided that if such Lender shall
have satisfied such requirements on the Effective Date (in the case of each
Lender listed on the signature pages hereof) or on the effective date of
the Assignment and Acceptance Agreement pursuant to which it becomes a
Lender (in the case of each other Lender), nothing in this Section shall
relieve the Borrower of its obligation to pay any additional amounts
pursuant to Section 2.10(b)(iii) in the event that, as a result of any
change in applicable law, such Lender is no longer properly entitled to
deliver certificates, documents or other evidence at a subsequent date
establishing the fact that such Lender is not subject to withholding as
described in the immediately preceding sentence.
2.11. Illegality
Notwithstanding anything herein to the contrary, if any law,
regulation, treaty or directive, or any change therein or in the interpretation
or application thereof, shall make it unlawful for any Lender to make or
maintain its Eurodollar Advances as contemplated by this Agreement, (i) the
commitment of such Lender hereunder to make Eurodollar Advances or convert ABR
Advances to Eurodollar Advances shall forthwith be suspended and (ii) such
28
Lender's Loans then outstanding as Eurodollar Advances affected hereby, if any,
shall be converted automatically to ABR Advances on the last day of the then
current Interest Period applicable thereto or on such earlier date if and as
required by law, provided that, before making any such suspension or conversion,
such Lender agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office or take other appropriate action if the making of such
a designation or the taking of such action, as the case may be, would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Advances or to continue to fund or maintain Eurodollar
Advances and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender. If the commitment of any Lender with respect to
Eurodollar Advances is suspended pursuant to this Section and it is thereafter
lawful (in the Lender's determination) for such Lender to make or maintain
Eurodollar Advances, such Lender's commitment to make or maintain Eurodollar
Advances shall be reinstated upon notice to either (a) the Administrative Agent
and the Borrower by such Lender or (b) the Administrative Agent and such Lender
by the Borrower.
2.12. Increased Costs
(a) In the event that any law, regulation, treaty or directive hereafter
enacted, promulgated, approved or issued or any change in any presently
existing law, regulation, treaty or directive therein or in the
interpretation or application thereof (whether or not having the force of
law) by any Governmental Authority charged with the administration thereof
or compliance by any Lender (or any corporation directly or indirectly
owning or controlling such Lender) with any request or directive from any
Governmental Authority:
(i) does or shall subject any Lender to any Taxes of any kind whatsoever with
respect to any Eurodollar Advances or its obligations under this Agreement
to make Eurodollar Advances, or change the basis of taxation of payments
to any Lender of principal, interest or any other amount payable hereunder
in respect of its Eurodollar Advances, including any Taxes required to be
withheld from any amounts payable under the Loan Documents (except for
imposition of, or change in the rate of, Tax on the Overall Net Income of
such Lender or its Applicable Lending Office for any of such Advances by
the jurisdiction in which such Lender is incorporated or has its principal
office or such Applicable Lending Office, including, in the case of
Lenders incorporated in any State of the United States, such tax imposed
by the United States); or
(ii) does or shall impose, modify or make applicable any reserve, special
deposit, compulsory loan, assessment, increased cost or similar
requirement against assets held by, or deposits of, or advances or loans
by, or other credit extended by, or any other acquisition of funds by, any
office of such Lender in respect of its Eurodollar Advances which is not
otherwise included in the determination of a Eurodollar Rate; or
(iii) otherwise increases the cost to any Lender of making, renewing,
29
converting, continuing or maintaining its Eurodollar Advances or its
commitment to make such Eurodollar Advances, or reduces any amount
receivable hereunder in respect of its Eurodollar Advances,
then, in any such case, the Borrower shall pay such Lender, upon its
demand, any additional amounts necessary to compensate such Lender for such
additional cost or reduction in such amount receivable which such Lender
deems to be material as determined by such Lender; provided, however, that
nothing in this Section shall require the Borrower to indemnify the Lenders
with respect to withholding Taxes for which the Borrower has no obligation
under Section 2.10, and provided further, that before making any such
demand, each Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a
different Applicable Lending Office or take other appropriate action if the
making of such a designation or the taking of such action, as the case may
be, would avoid the need for, or reduce the amount of, such increased cost
and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender. No failure by any Lender to demand
compensation for any increased cost during any Interest Period shall
constitute a waiver of such Lender's right to demand such compensation at
any time, provided, that no Lender shall be entitled to demand such
compensation more than 90 days following the last day of the Interest
Period in respect of which such demand is made; provided further, however,
that the foregoing proviso shall in no way limit the right of any Lender to
demand or receive such compensation to the extent that such compensation
relates to the retroactive application of any law, regulation, treaty or
directive described above if such demand is made within 90 days after the
implementation of such retroactive law, interpretation, treaty or
directive. A statement setting forth the calculations of any additional
amounts payable pursuant to the foregoing submitted by a Lender to the
Borrower shall be conclusive absent manifest error.
(b) In the event that any Lender shall determine (which determination shall,
absent manifest error, be conclusive and binding upon all parties hereto),
during any Eurodollar Interest Period during which a Eurodollar Advance of
such Lender shall be outstanding, that such Lender shall be required to
maintain reserves (i) (including marginal, emergency, supplemental and
special reserves) as established by the Board of Governors of the Federal
Reserve System or any other banking authority to which such Lender is
subject, in respect of eurocurrency funding (currently referred to as
"Eurocurrency liabilities" in Regulation D of the Board of Governors of the
Federal Reserve System) of such Lender or (ii) in respect of any other
category of liabilities, including deposits by reference to which the
interest rate on such Eurodollar Advance is determined, or any category of
extensions of credit or other assets, which includes loans by non-domestic
offices of such Lender to United States residents, then such Lender shall
promptly notify the Borrower by telephone (confirmed thereafter by
facsimile or other writing), specifying the additional amounts required to
indemnify such Lender against the cost of maintaining such reserves (such
written notice to provide in reasonably sufficient detail the computation
of such additional amounts), whereupon the Borrower shall pay to such
Lender, on the applicable Interest Payment Dates with respect to the
Eurodollar Advances of such Lender, such specified amounts as additional
interest with respect to such Lender's Eurodollar Advances outstanding at
such time or at any
30
time thereafter (provided that, with respect to any subsequent Eurodollar
Advances of such Lender, no further or additional claims need be made by
such Lender to the Borrower with respect to such reserve requirements,
provided further, however, that such Lender shall promptly notify the
Borrower if such reserve requirements cease to exist). In connection with
the foregoing, Eurodollar Advances shall be deemed to constitute
Eurocurrency liabilities and as such shall be deemed to be subject to such
reserve requirements without benefit of credits for proration, exceptions
or offsets which may be available from time to time to any Lender under
such Regulation D.
2.13. Indemnification for Loss
Notwithstanding anything herein to the contrary, if the Borrower shall
fail to borrow, convert or continue an Advance after it shall have given notice
to do so in which it shall have requested a Eurodollar Advance pursuant to
Section 2.3 or 2.7, as the case may be, or if the Borrower shall fail to borrow
a Competitive Bid Loan after it shall have accepted one or more offers therefor
pursuant to Section 2.4, or if a Eurodollar Advance or a Competitive Bid Loan
shall be terminated for any reason prior to the last day of the Interest Period
applicable thereto, or if any repayment or prepayment of the principal amount of
a Eurodollar Advance or a Competitive Bid Loan is made for any reason on a date
which is prior to the last day of the Interest Period applicable thereto, the
Borrower agrees to indemnify each Lender against, and to pay on demand directly
to such Lender, any loss or expense suffered by such Lender as a result of such
failure to borrow, convert or continue, termination, repayment or prepayment,
including an amount, if greater than zero, equal to:
A x (B-C) x D
---
360
where:
"A" equals such Lender's (i) Commitment Percentage of the Affected Principal
Amount in the case of Eurodollar Advances or (ii) the Affected Principal
Amount in the case of Competitive Bid Loans;
"B" equals the Eurodollar Rate (expressed as a decimal) applicable to such
Eurodollar Advances or the Bid Rate applicable to such Competitive Bid
Loan, as the case may be;
"C" equals the applicable Eurodollar Rate or Proposed Bid Rate (in each case
expressed as a decimal), as the case may be, in effect on or about the
first day of the applicable Remaining Interest Period, based on the
applicable rates offered or bid, as the case may be, on or about such date,
for deposits (or, in the case of a Proposed Bid Rate, based on the rate
such Lender would have quoted) in an amount equal approximately to such
Lender's (i) Commitment Percentage of the Affected Principal Amount in the
case of Eurodollar Advances or (ii) the Affected Principal Amount in the
case of
31
Competitive Bid Loans with an Interest Period equal approximately
to the applicable Remaining Interest Period, as determined by such Lender;
"D" equals the number of days from and including the first day of the
applicable Remaining Interest Period to but excluding the last day of such
Remaining Interest Period;
and any other out-of-pocket loss or expense (including any internal processing
charge customarily charged by such Lender) suffered by such Lender in connection
with such Eurodollar Advance or Competitive Bid Loan, as the case may be,
including in liquidating or employing deposits acquired to fund or maintain the
funding of its Commitment Percentage of the Affected Principal Amount, or
redeploying funds prepaid or repaid, in amounts which correspond to its
Commitment Percentage of the Affected Principal Amount. Each determination by
the Administrative Agent or a Lender pursuant to this Section shall be
conclusive and binding on the Borrower absent manifest error.
2.14. Survival of Certain Obligations
The obligations of the Borrower under Sections 2.9, 2.10, 2.11, 2.12,
2.13, 2.16, 11.5 and 11.11 shall survive the termination of the Aggregate
Commitments and the payment of the Notes and all other amounts payable under the
Loan Documents.
2.15. Use of Proceeds
The proceeds of the Loans shall be used solely for general corporate
purposes not inconsistent with the provisions hereof, including the provisions
set forth in Section 4.9.
2.16. Capital Adequacy
If the amount of capital required or expected to be maintained by any
Lender or any Person directly or indirectly owning or controlling such Lender
(each a "Control Person") shall be affected by (i) the introduction or phasing
in of any law, rule or regulation after the Effective Date, (ii) any change
after the Effective Date in the interpretation of any existing law, rule or
regulation by any Governmental Authority charged with the administration
thereof, or (iii) compliance by such Lender or such Control Person, as the case
may be, with any directive, guideline or request from any Governmental Authority
(whether or not having the force of law) promulgated or made after the Effective
Date, and such Lender shall have reasonably determined that such introduction,
phasing in, change or compliance shall have had or will thereafter have the
effect of reducing (A) the rate of return on such Lender's or such Control
Person's, as the case may be, capital or (B) the asset value to such Lender or
such Control Person, as the case may be, of the Loans made or maintained by such
Lender, in either case to a level below that which such Lender or such Control
Person, as the case may be, could have achieved or would thereafter be able to
achieve but for such introduction, phasing in, change or compliance (after
taking into account such Lender's or such Control Person's, as the case may be,
policies regarding capital adequacy) by an amount deemed by
32
such Lender to be material to such Lender or Control Person, as the case may be,
then, within ten days after demand by such Lender, the Borrower shall pay to
such Lender or such Control Person, as the case may be, such additional amount
or amounts as shall be sufficient to compensate such Lender or such Control
Person, as the case may be, for such reduction, provided that no Lender shall be
entitled to demand such compensation more than 120 days following the last day
of the fiscal year of such Lender during which such capital requirement was
applicable and in respect of which such Lender is seeking compensation; provided
further, however, that the foregoing proviso shall in no way limit the right of
any Lender to demand or receive such compensation to the extent that such
compensation relates to the retroactive application by such Governmental
Authority of any law, rule, regulation, interpretation or phasing in described
above if such demand is made within 120 days after the implementation of such
retroactive law, rule, regulation, interpretation or phasing in. A statement as
to such amounts submitted by a Lender to the Borrower and the Administrative
Agent shall constitute such demand and shall be conclusive absent manifest
error.
2.17. Lenders' Records
Each Lender's records regarding the amount of each Loan, each payment
by the Borrower of principal and interest on the Loans and other information
relating to the Loans shall be presumptively correct absent manifest error.
2.18. Extension of Commitment Period
(a) Provided that no Default or Event of Default shall exist, the Borrower may
request that the Commitment Period be extended for up to 364 days by giving
written notice thereof (each an "Extension Request") to the Administrative
Agent at any time during the period which is not more than 45 days nor less
than 30 days prior to the then current Maturity Date and, upon receipt of
each such notice, the Administrative Agent shall promptly notify each
Lender thereof. Each Lender shall endeavor to respond to each Extension
Request by no later than 15 days prior to the then current Maturity Date,
provided that each Lender which shall have failed so to respond by such
time shall be deemed not to have consented thereto. The Administrative
Agent shall promptly notify the Borrower as to the name of each Lender
that, in accordance with this subsection (a), consented to such extension.
In the event that Lenders having Commitments greater than 50% of the
Aggregate Commitments shall not have consented in accordance with this
subsection (a) to such extension, the then current Maturity Date shall not
be extended and shall remain in full force and effect. In the event that
all Lenders shall have consented in accordance with this subsection (a),
then on the date upon which the last such consent shall have been received
by the Administrative Agent, the then existing Maturity Date shall be
extended to the day which is 364 days after such date (or, if such date is
not a Business Day, the Business Day immediately preceding such day).
(b) Notwithstanding any provision in Section 2.18(a) to the contrary, in the
event Lenders having Commitments greater than 50% of the Aggregate
Commitments consent to an extension of the Maturity Date pursuant to
Section 2.18(a) (the "Continuing Lenders"), the Borrower shall have the
right, provided no Default or Event of Default shall have occurred
33
and be continuing, to replace or remove each Lender that did not so consent
(each a "Non-Extending Lender") by giving the Administrative Agent notice
no later than five days prior to the then current Maturity Date of its
intent to extend such Maturity Date. On or prior to the then current
Maturity Date, the Borrower shall replace each Non-Extending Lender with
either an existing Lender willing to assume such Non-Extending Lender's
Commitment or with another Eligible Assignee willing to assume such Non-
Extending Lender's Commitment. Each Non-Extending Lender agrees, subject to
and in accordance with Section 11.7, to assign its rights and obligations
under the Loan Documents to an Eligible Assignee selected by the Borrower
upon payment by or on behalf of such Eligible Assignee to such Non-
Extending Lender of such Non-Extending Lender's Commitment Percentage or
other applicable percentage of all outstanding Loans and accrued interest,
fees and other sums payable under the Loan Documents. In the event that the
Borrower shall have elected to replace or remove each Non-Extending Lender
pursuant to this subsection (b), then on the date, if any, upon which all
of the Borrower's obligations under this subsection (b) shall have been
satisfied, if any, the then existing Maturity Date shall be extended to the
day which is 364 days after such date (or, if such date is not a Business
Day, the Business Day immediately preceding such day), provided, however,
that if the Borrower shall not have satisfied such obligations on or prior
to the then existing Maturity Date, such Maturity Date shall not be
extended.
2.19. Substitution of Lender
In the event that the Borrower becomes obligated to pay additional
amounts to any Lender pursuant to Section 2.10, 2.12, 2.13 or 2.16, or if any
Lender defaults in its obligation to fund Loans hereunder on three or more
occasions, the Borrower may, within 60 days of the demand by such Lender for
such additional amounts or the relevant default by such Lender, as the case may
be, and subject to and in accordance with the provisions of Section 11.7,
designate an Eligible Assignee to purchase the Loans of such Lender and such
Lender's rights hereunder, without recourse to or warranty by or expense to,
such Lender, for a purchase price equal to the outstanding principal amount of
such Lender's Loans plus any accrued but unpaid interest thereon and accrued but
unpaid Facility Fees and Utilization Fees in respect of such Lender's Commitment
and any other amounts payable to such Lender hereunder, and to assume all the
obligations of such Lender hereunder, and, upon such purchase, such Lender shall
no longer be a party hereto or have any rights hereunder (except those that
survive full repayment hereunder) and shall be relieved from all obligations to
the Borrower hereunder, and the Eligible Assignee shall succeed to the rights
and obligations of such Lender hereunder. The Borrower shall execute and
deliver to such Eligible Assignee a Note. Notwithstanding anything herein to
the contrary, in the event that a Lender is replaced pursuant to this Section
2.19 as a result of the Borrower becoming obligated to pay additional amounts to
such Lender pursuant to Section 2.10, 2.12, 2.13 or 2.16, such Lender shall be
entitled to receive such additional amounts as if it had not been so replaced.
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3. FEES; PAYMENTS
3.1. Facility Fee; Utilization Fee
(a) Facility Fee. The Borrower agrees to pay to the Administrative Agent, for
the account of the Lenders in accordance with each Lender's Commitment
Percentage, during the period from and including the Effective Date through
but excluding the Maturity Date, a fee (the "Facility Fee") equal to the
Applicable Facility Fee Percentage per annum of the average daily sum of
the Aggregate Commitments, regardless of usage, during such period. The
Facility Fee shall be payable (i) quarterly in arrears on the last day of
each March, June, September and December during such period, (ii) on the
date of any reduction in the Aggregate Commitments (to the extent of such
reduction) and (iii) on the Maturity Date. The Facility Fee shall be
calculated on the basis of a 360-day year for the actual number of days
elapsed.
(b) Utilization Fee. The Borrower agrees to pay to the Administrative Agent,
for the account of the Lenders in accordance with each Lender's Commitment
Percentage, during the period from and including the Effective Date through
but excluding the Maturity Date, a fee (the "Utilization Fee") equal to the
Applicable Utilization Fee Percentage per annum of the daily amount during
such period of the sum of the aggregate outstanding principal balance of
all Lenders' Loans, provided that such sum is greater than 25% of the sum
of the Aggregate Commitments on such day. The Utilization Fee shall be
payable (i) quarterly in arrears on the last day of each March, June,
September and December during such period and (ii) on the Maturity Date.
The Utilization Fee shall be calculated on the basis of a 360-day year for
the actual number of days elapsed.
3.2. Other Fees
The Borrower agrees to pay to each of the Administrative Agent and the
Lenders, for its own account, such fees as have been agreed to in writing by it
and the Borrower.
3.3. Pro Rata Treatment and Application of Principal Payments
Each payment, including each prepayment, of principal and interest on
the Loans and of the Facility Fee and the Utilization Fee shall be made by the
Borrower to the Administrative Agent at its office provided for in Section 11.2
in funds immediately available to the Administrative Agent at such office by
1:00 p.m. on the due date for such payment, and, promptly upon receipt thereof
by the Administrative Agent, shall be remitted by the Administrative Agent in
like funds as received, to the Lenders according to the Commitment Percentage of
each Lender, in the case of the Facility Fee and the Utilization Fee then due to
the Lenders, pro rata according to the aggregate outstanding principal balance
of the Revolving Credit Loans, in the case of principal and interest then due
thereon, and to the applicable Lender in the case of principal and interest then
due on a Competitive Bid Loan. The failure of the Borrower to make any such
payment by such time shall not constitute a
35
default hereunder, provided that such payment is made on such due date, but any
such payment made after 1:00 p.m. on such due date shall be deemed to have been
made on the next Business Day for the purpose of calculating interest on amounts
outstanding on the Loans. If any payment hereunder or under the Notes shall be
due and payable on a day which is not a Business Day, the due date thereof
(except as otherwise provided in the definition of Interest Period) shall be
extended to the next Business Day and (except with respect to payments in
respect of the Facility Fee and the Utilization Fee) interest shall be payable
at the applicable rate specified herein during such extension.
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Loans, the Borrower makes the following
representations and warranties to the Administrative Agent and each Lender:
4.1. Subsidiaries; Capitalization
As of the Effective Date, the Borrower has only the Subsidiaries set
forth on Schedule 4.1, and such Schedule accurately designates as of the
Effective Date whether each such Subsidiary is a Material Subsidiary or an
Immaterial Subsidiary for purposes of this Agreement. The shares of each
corporate Material Subsidiary are duly authorized, validly issued, fully paid
and non-assessable and are owned free and clear of any Liens. The interest of
the Borrower in each non-corporate Material Subsidiary is owned free and clear
of any Liens.
4.2. Existence and Power
Each of the Borrower and the Material Subsidiaries is duly organized
or formed and validly existing in good standing under the laws of the
jurisdiction of its incorporation or formation, has all requisite power and
authority to own its Property and to carry on its business as now conducted, and
is in good standing and authorized to do business as a foreign corporation or
other applicable entity in each jurisdiction in which the nature of the business
conducted therein or the Property owned therein makes such qualification
necessary, except where such failure to qualify could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
4.3. Authority
The Borrower has full legal power and authority to enter into,
execute, deliver and perform the terms of the Loan Documents and to make the
borrowings contemplated hereby and by the Notes, and to execute, deliver and
carry out the terms of the Notes and to incur the obligations provided for
herein and therein, all of which have been duly authorized by all proper and
necessary corporate or other applicable action and are in full compliance with
its charter or by-laws or its other organization documents.
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4.4. Binding Agreement
The Loan Documents (other than the Notes) constitute, and the Notes,
when issued and delivered pursuant hereto for value received, will constitute,
the valid and legally binding obligations of the Borrower, enforceable in
accordance with their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally and general
principles of equity.
4.5. Litigation and Regulatory Proceedings
Except as disclosed in Schedule 4.5, there are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority
(whether or not purportedly on behalf of the Borrower or any of the Material
Subsidiaries) pending or, to the knowledge of the Borrower, threatened against
the Borrower or any of the Material Subsidiaries, which (i) if adversely
determined, could individually or in the aggregate reasonably be expected to
have a Material Adverse Effect, except that the commencement by the Borrower,
any of the Material Subsidiaries or any Governmental Authority of a rate
proceeding or earnings review before such Governmental Authority shall not
constitute such a pending or threatened action, suit or proceeding unless and
until such Governmental Authority has made a final determination thereunder that
could reasonably be expected to have a Material Adverse Effect, (ii) call into
question the validity or enforceability of any of the Loan Documents, or (iii)
could reasonably be expected to result in the rescission, termination or
cancellation of any material franchise, right, license, permit or similar
authorization held by the Borrower or any of the Material Subsidiaries.
4.6. Required Consents
Except for information filings required to be made in the ordinary
course of business which are not a condition to the Borrower's performance under
the Loan Documents, no consent, authorization or approval of, filing with,
notice to, or exemption by, equityholders, any Governmental Authority or any
other Person is required to authorize, or is required in connection with the
execution, delivery and performance of the Loan Documents or is required as a
condition to the validity or enforceability of the Loan Documents, except such
as have been obtained or made and are in full force and effect and not subject
to any appeals period (including the FERC Order). As of the Effective Date, the
FERC Order then in effect expires August 14, 2000.
4.7. No Conflicting Agreements, Compliance with Laws
(a) Neither the Borrower nor any of the Material Subsidiaries is in default (i)
under any mortgage, indenture, contract or agreement to which it is a party
or by which it or any of its Property is bound or (ii) with respect to any
judgment, order, writ, injunction, decree or decision of any Governmental
Authority, the effect of which default could reasonably be expected to have
a Material Adverse Effect. The execution, delivery or carrying
37
out of the terms of the Loan Documents will not constitute a default under,
or require the mandatory repayment of, or result in the creation or
imposition of, or obligation to create, any Lien upon any Property of the
Borrower or any of the Material Subsidiaries pursuant to the terms of, any
such mortgage, indenture, contract or agreement.
(b) Each of the Borrower and the Material Subsidiaries (i) is complying in all
material respects with all statutes, regulations, rules and orders
applicable to the Borrower or such Material Subsidiary of all Governmental
Authorities, including Environmental Laws and ERISA, a violation of which
could individually or in the aggregate reasonably be expected to have a
Material Adverse Effect and (ii) has filed or caused to be filed all tax
returns required to be filed and has paid, or has made adequate provision
for the payment of, all taxes shown to be due and payable on said returns
or in any assessments made against it (other than those being contested as
permitted under Section 7.4) which would be material to the Borrower or any
of the Material Subsidiaries, and no tax Liens have been filed with respect
thereto.
4.8. Governmental Regulations
Neither the Borrower nor any of the Material Subsidiaries is (i) an
"investment company" or a company "controlled" by an "investment company" as
defined in, or is otherwise subject to regulation under, the Investment Company
Act of 1940, as amended, or (ii) a "holding company", or an "affiliate" or
"subsidiary company" of a "holding company", as those terms are defined in the
Public Utility Holding Company Act of 1935, as amended, in each case which is
subject to registration thereunder.
4.9. Federal Reserve Regulations; Use of Loan Proceeds
Neither the Borrower nor any of the Material Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. No part of
the proceeds of the Loans will be used, directly or indirectly, for a purpose
which violates any law, rule or regulation of any Governmental Authority,
including the provisions of Regulations T, U or X of the Board of Governors of
the Federal Reserve System, as amended. No part of the proceeds of the Loans
will be used, directly or indirectly, to purchase or carry Margin Stock or to
extend credit to others for the purpose of purchasing or carrying Margin Stock.
4.10. Plans
The only Pension Plan in effect as of the Effective Date is the Cleco
Corporation Pension Plan. Each Employee Benefit Plan of the Borrower, the
Material Subsidiaries and their respective ERISA Affiliates is in compliance
with ERISA and the Code, where applicable, in all material respects. The
Borrower, the Material Subsidiaries and/or any ERISA Affiliate have made all
contributions or payments to or under each such Pension Plan required by law or
the terms of such Pension Plan or any contract or agreement with respect
thereto, and none of the Borrower, the Material Subsidiaries or any of their
38
respective ERISA Affiliates has incurred or expects to incur any withdrawal
liability or other liability (including any joint and several liability) to the
PBGC under ERISA. None of the Borrower, any Material Subsidiary or any ERISA
Affiliate are a party to any Multiemployer Plan.
4.11. Financial Statements
The Borrower has heretofore delivered to the Administrative Agent and
the Lenders copies of its consolidated balance sheet and the related
consolidated statements of income, stockholder's equity and cash flows as of and
for the fiscal year ended December 31, 1999 and December 31, 1998, reported on
by the Accountants (with the applicable related notes and schedules, the
"Financial Statements"). The Financial Statements have been prepared in
accordance with GAAP and fairly present the consolidated financial condition and
results of the operations of the Borrower and the Subsidiaries as of the dates
and for the periods indicated therein. Since December 31, 1999, each of the
Borrower and the Material Subsidiaries has conducted its business only in the
ordinary course and there has been no Material Adverse Change.
4.12. Property
Each of the Borrower and the Material Subsidiaries has good and
marketable title to all of its Property, title to which is material to the
Borrower or such Material Subsidiary, as the case may be, subject to no Liens,
except Permitted Liens.
4.13. Environmental Matters
(a) To the best knowledge of the Borrower, the Borrower and each of the
Material Subsidiaries is in compliance in all material respects with the
requirements of all applicable Environmental Laws.
(b) To the best knowledge of the Borrower, except as described in Schedule
4.13, (i) no Hazardous Substances have been generated or manufactured on,
transported to or from, treated at, stored at or discharged from any Real
Property in violation of any Environmental Laws, (ii) no Hazardous
Substances have been discharged into subsurface waters under any Real
Property in violation of any Environmental Laws, (iii) no Hazardous
Substances have been discharged from any Real Property on or into Property
or waters (including subsurface waters) adjacent to any Real Property in
violation of any Environmental Laws, and (iv) there are not now, nor ever
have been, on any Real Property any underground or above ground storage
tanks of the Borrower or any of the Material Subsidiaries regulated under
any Environmental Laws, which, as to any of the foregoing actions, events
or conditions, individually or collectively, could reasonably be expected
to have a Material Adverse Effect.
(c) Except as described in Schedule 4.13, neither the Borrower nor any of the
Material Subsidiaries (i) has received notice directly or otherwise learned
indirectly
39
(through a Corporate Officer) of any claim, demand, suit, action,
proceeding, event, condition, report, directive, Lien, violation, non-
compliance or investigation indicating or concerning any potential or
actual material liability (including potential liability for enforcement,
investigatory costs, cleanup costs, government response costs, removal
costs, remediation costs, natural resources damages, Property damages,
personal injuries or penalties) arising in connection with: (A) any
material non-compliance with or violation of the requirements of any
applicable Environmental Laws or (B) the presence of any Hazardous
Substance on any Real Property (or any Real Property previously owned by
the Borrower or any of the Material Subsidiaries) or the release or
threatened release of any Hazardous Substance into the environment which
individually or collectively could reasonably be expected to have a
Material Adverse Effect or (ii) has any overtly threatened or actual
liability in connection with the presence of any Hazardous Substance on any
Real Property (or any Real Property previously owned by the Borrower or any
of the Material Subsidiaries) or the release or threatened release of any
Hazardous Substance into the environment.
5. CONDITIONS TO EFFECTIVENESS
This Agreement shall not become effective until such time as each of the
following conditions precedent shall have been satisfied (or waived in
accordance with Section 11.1):
5.1. Evidence of Action
The Administrative Agent shall have received a certificate, dated the
Effective Date, of the Secretary or Assistant Secretary of the Borrower (i)
attaching a true and complete copy of the resolutions of its Board of Directors
and of all documents evidencing other necessary corporate action (in form and
substance satisfactory to the Administrative Agent) taken by it to authorize the
Loan Documents and the transactions contemplated thereby, (ii) attaching a true
and complete copy of its charter and by-laws, (iii) setting forth the incumbency
of its officer or officers who may sign the Loan Documents, including therein a
signature specimen of such officer or officers, and (iv) attaching a certificate
of good standing of the Secretary of State of the jurisdiction of its
incorporation and each other jurisdiction in which the failure to be in good
standing could reasonably be expected to have a Material Adverse Effect.
5.2. This Agreement
The Administrative Agent (or Special Counsel) shall have received, in
respect of each Person listed on the signature pages of this Agreement, either
(i) a counterpart signature page hereof signed on behalf of such Person or (ii)
written evidence satisfactory to the Administrative Agent (which may include a
facsimile transmission of a signed signature page of this Agreement) that a
counterpart signature page hereof has been signed on behalf of such Person.
40
5.3. Notes
The Administrative Agent (or Special Counsel) shall have received a
Note for each Lender, dated the Effective Date, duly executed by a duly
authorized officer of the Borrower.
5.4. Approvals
The Administrative Agent shall have received a certificate of a duly
authorized officer of the Borrower, in form and substance satisfactory to the
Administrative Agent, certifying that all approvals and consents of all Persons
required to be obtained in connection with the consummation of the transactions
contemplated by the Loan Documents have been duly obtained and are in full force
and effect and that all required notices have been given and all required
waiting periods have expired, attaching thereto true and complete copies of all
such required governmental and regulatory authorizations and approvals,
including approval of the FERC and the LPSC.
5.5. Certain Agreements
The Administrative Agent shall have received a certificate of a duly
authorized officer of the Borrower, in form and substance satisfactory to the
Administrative Agent, (i) certifying that there have been no amendments or other
modifications to either the CLECO Mortgage or the Employee Stock Ownership Plan
since August 28, 1998, or, if so, setting forth the same, in which case any such
amendment or modification shall be in form and substance satisfactory to the
Administrative Agent, and (ii) attaching a true, complete and correct copy of
each of (x) the Inter-Affiliate Policies Agreement, which shall be in form and
substance satisfactory to the Administrative Agent and (y) Section 1.04 of the
CLECO Mortgage together with copies of any defined terms used therein.
5.6. Opinion of Counsel to the Borrower
The Administrative Agent shall have received an opinion of Xxxxxx
Xxxxxx, L.L.P., counsel to the Borrower, addressed to the Administrative Agent
and the Lenders and dated the Effective Date, substantially in the form of
Exhibit K, and covering such additional matters as the Required Lenders may
reasonably request. It is understood that such opinion is being delivered to
the Administrative Agent and the Lenders upon the direction of the Borrower and
that the Administrative Agent and the Lenders may and will rely upon such
opinion.
5.7. Terminating Indebtedness
The Terminating Indebtedness shall have been fully repaid and all
agreements and other documents with respect thereto shall have been canceled or
terminated, and the Administrative Agent shall have received reasonably
satisfactory evidence thereof.
41
5.8. Fees
All fees payable to the Administrative Agent and the Lenders on the
Effective Date, and the reasonable fees and expenses of Special Counsel incurred
and recorded to date in connection with the preparation, negotiation and closing
of the Loan Documents, shall have been paid.
6. CONDITIONS OF LENDING - ALL LOANS
The obligation of each Lender to make any Loan (which shall not include a
continuation or conversion of a Loan pursuant to and in accordance with Section
2.7) is subject to the satisfaction of the following conditions precedent as of
the date of such Loan:
6.1. Compliance
On each Borrowing Date and after giving effect to the Loans to be made
thereon, (i) there shall exist no Default or Event of Default, (ii) the
representations and warranties contained in the Loan Documents shall be true and
correct with the same effect as though such representations and warranties had
been made on such Borrowing Date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true and correct on and as of
such earlier date, and (iii) since December 31, 1999, there has been no Material
Adverse Change. Each borrowing by the Borrower shall constitute a certification
by the Borrower as of such Borrowing Date that each of the foregoing matters is
true and correct in all respects.
6.2. Borrowing Request; Competitive Bid Request
In the case of the borrowing of Revolving Credit Loans, the
Administrative Agent shall have received a Borrowing Request, or in the case of
a borrowing of a Competitive Bid Loan, the Administrative Agent shall have
received a Competitive Bid Request and such other documents required to be
provided by the Borrower pursuant to Section 2.4, in each case duly executed by
a duly authorized officer of the Borrower.
6.3. Law
Such Loan shall not be prohibited by any applicable law, rule or
regulation.
6.4. Other Documents
The Administrative Agent shall have received such other documents as
the Administrative Agent or the Lenders shall reasonably request.
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7. AFFIRMATIVE COVENANTS
The Borrower agrees that, so long as this Agreement is in effect, any Loan
remains outstanding and unpaid, or any other amount is owing under any Loan
Document to any Lender or the Administrative Agent, the Borrower shall:
7.1. Financial Statements
Maintain a standard system of accounting in accordance with GAAP, and
furnish or cause to be furnished to the Administrative Agent and each Lender:
(a) within 120 days after the end of each fiscal year, its audited consolidated
balance sheet and related consolidated statements of income, stockholder's
equity and cash flows as of the end of and for such year, setting forth in
each case in comparative form the figures for the previous fiscal year, all
reported on by the Accountants (without a "going concern" or like
qualification or exception and without any qualification or exception as to
the scope of such audit) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition
and results of operations of the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, together
with a listing of all Material Subsidiaries designated as Immaterial
Subsidiaries, and vice versa, during such fiscal year;
(b) within 60 days after the end of each of the first three fiscal quarters of
each fiscal year, its consolidated balance sheet and related consolidated
statements of income, stockholder's equity and cash flows as of the end of
and for such fiscal quarter and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet,
as of the end of the corresponding period in) the previous fiscal year, all
certified by one of its duly authorized financial officers as presenting
fairly in all material respects the financial condition and results of
operations of the Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters
(120 days after the end of the last fiscal quarter), a certificate of the
chief financial officer of the Borrower (or such other officer as shall be
acceptable to the Administrative Agent) as to the Borrower's compliance, as
of such fiscal quarter ending date, with Section 7.11, and as to the
occurrence or continuance of no Default or Event of Default as of such
fiscal quarter ending date and the date of such certificate; and
(d) such other information as the Administrative Agent or any Lender may
reasonably request from time to time.
7.2. Certificates; Other Information
Furnish or cause to be furnished to the Administrative Agent and each
Lender:
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(a) Prompt written notice if: (i) there shall occur and be continuing a Default
or an Event of Default or (ii) a Material Adverse Change shall have
occurred;
(b) Prompt written notice of: (i) any material citation, summons, subpoena,
order to show cause or other document naming the Borrower or any of the
Material Subsidiaries a party to any proceeding before any Governmental
Authority, and include with such notice a copy of such citation, summons,
subpoena, order to show cause or other document, or (ii) any lapse or other
termination of, or refusal to renew or extend, any material Intellectual
Property, license, permit, franchise or other authorization issued to the
Borrower or any of the Material Subsidiaries by any Person or Governmental
Authority, provided that any of the foregoing set forth in this subsection
(b) could, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect or call into question the validity or
enforceability of any of the Loan Documents;
(c) Promptly upon becoming available, copies of all (i) regular, periodic or
special reports, schedules and other material which the Borrower or any of
the Material Subsidiaries may be required to file with or deliver to any
securities exchange or the SEC, or any other Governmental Authority
succeeding to the functions thereof, (ii) material news releases and annual
reports relating to the Borrower or any of the Material Subsidiaries, and
(iii) upon the written request of the Administrative Agent, reports that
the Borrower or any of the Material Subsidiaries sends to or files with
FERC, the LPSC or any similar state or local Governmental Authority;
(d) Prompt written notice of any order, notice, claim or proceeding received
by, or brought against, the Borrower or any of the Material Subsidiaries,
or with respect to any of the Real Property, under any Environmental Law,
that could reasonably be expected to have a Material Adverse Effect;
(e) Prompt written notice of any change by either Xxxxx'x or S&P in the Senior
Debt Rating; and
(f) Such other information as the Administrative Agent or any Lender shall
reasonably request from time to time.
7.3. Legal Existence
Except as permitted under Section 8.2, maintain its legal existence in
good standing in the jurisdiction of its incorporation or formation and in each
other jurisdiction in which the failure so to do could reasonably be expected to
have a Material Adverse Effect, and cause each of the Material Subsidiaries to
maintain its legal existence in good standing in each jurisdiction in which the
failure so to do could reasonably be expected to have a Material Adverse Effect.
44
7.4. Taxes
Pay and discharge when due, and cause each of the Material
Subsidiaries so to do, all Taxes, assessments and governmental charges, license
fees and levies upon, or with respect to the Borrower or such Material
Subsidiary, as the case may be, and all Taxes upon the income, profits and
Property of the Borrower and the Material Subsidiaries, which if unpaid, could
individually or collectively reasonably be expected to have a Material Adverse
Effect or become a Lien on the Property of the Borrower or such Material
Subsidiary, as the case may be (other than a Lien described in Section 8.1(a)),
unless and to the extent only that such Taxes, assessments, charges, license
fees and levies shall be contested in good faith and by appropriate proceedings
diligently conducted by the Borrower or such Material Subsidiary, as the case
may be, provided that the Borrower shall give the Administrative Agent prompt
notice of such contest and that such reserve or other appropriate provision as
shall be required by the Accountants in accordance with GAAP shall have been
made therefor.
7.5. Insurance
Maintain, and cause each of the Material Subsidiaries to maintain,
with financially sound and reputable insurance companies insurance on all its
Property in at least such amounts and against at least such risks (but including
in any event public liability and business interruption coverage) as are usually
insured against in the same general area by companies engaged in the same or a
similar business; and furnish to the Administrative Agent, upon written request
of the Administrative Agent or any Lender, full information as to the insurance
carried.
7.6. Payment of Indebtedness and Performance of Obligations
Pay and discharge when due, and cause each of the Material
Subsidiaries to pay and discharge when due, all lawful Indebtedness, obligations
and claims for labor, materials and supplies or otherwise which, if unpaid,
could individually or collectively reasonably be expected to (i) have a Material
Adverse Effect or (ii) become a Lien upon Property of the Borrower or any of the
Material Subsidiaries (other than a Permitted Lien), unless and to the extent
only that the validity of such Indebtedness, obligation or claim shall be
contested in good faith and by appropriate proceedings diligently conducted by
it, provided that the Borrower shall give the Administrative Agent prompt notice
of any such contest and that such reserve or other appropriate provision as
shall be required by the Accountants in accordance with GAAP shall have been
made therefor.
7.7. Condition of Property
At all times, maintain, protect and keep in good repair, working order
and condition (ordinary wear and tear excepted), and cause each of the Material
Subsidiaries so to do, all Property necessary to the operation of the Borrower's
or such Material Subsidiary's, as the case may be, material businesses.
45
7.8. Observance of Legal Requirements
Observe and comply in all respects, and cause each of the Material
Subsidiaries so to do, with all laws, ordinances, orders, judgments, rules,
regulations, certifications, franchises, permits, licenses, directions and
requirements of all Governmental Authorities, which now or at any time hereafter
may be applicable to it, including ERISA and all Environmental Laws, a violation
of which could individually or collectively reasonably be expected to have a
Material Adverse Effect, except such thereof as shall be contested in good faith
and by appropriate proceedings diligently conducted by it, provided that the
Borrower shall give the Administrative Agent prompt notice of such contest and
that such reserve or other appropriate provision as shall be required by the
Accountants in accordance with GAAP shall have been made therefor.
7.9. Inspection of Property; Books and Records; Discussions
Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all requirements of law shall be
made of all dealings and transactions in relation to its business and activities
and permit representatives of the Administrative Agent and any Lender to visit
its offices, to inspect any of its Property and examine and make copies or
abstracts from any of its books and records at any reasonable time and as often
as may reasonably be desired, and to discuss the business, operations,
prospects, licenses, Property and financial condition of the Borrower and the
Material Subsidiaries with the officers thereof and the Accountants; provided
that, so long as no Default or Event of Default exists, none of the
Administrative Agent, its agents, its representatives or the Lenders shall be
entitled to examine or make copies or abstracts of, or otherwise obtain
information with respect to, the Borrower's records relating to pending or
threatened litigation if any such disclosure by the Borrower could reasonably be
expected (i) to give rise to a waiver of any attorney/client privilege of the
Borrower or any of the Material Subsidiaries relating to such information or
(ii) to be otherwise materially disadvantageous to the Borrower or any of the
Material Subsidiaries in the defense of such litigation.
7.10. Licenses, Intellectual Property
Obtain or maintain, as applicable, and cause each of the Subsidiaries
to obtain or maintain, as applicable, in full force and effect, all licenses,
franchises, Intellectual Property, permits, authorizations and other rights as
are necessary for the conduct of its business and the failure of which to obtain
or maintain could individually or collectively, reasonably be expected to have a
Material Adverse Effect.
7.11. Capitalization Ratio
Maintain, as of the last day of each fiscal quarter, Common Equity
equal to at least 30% of Total Capitalization.
46
7.12. Material/Immaterial Designation of Subsidiaries
Be permitted to designate a Material Subsidiary as an Immaterial
Subsidiary and an Immaterial Subsidiary as a Material Subsidiary by giving the
Administrative Agent and the Lenders written notice thereof not later than 10
Business Days after such designation, specifying the effective date of such
designation and certifying that all of the conditions set forth in this Section
shall have been satisfied as of such effective date, provided that: (i)
immediately before and after giving effect to such designation, no Default or
Event of Default shall exist and (ii) in the case of the designation of an
Immaterial Subsidiary as a Material Subsidiary, such notice shall also serve as
the certification of the Borrower immediately after giving effect to such
designation that, with respect to such Material Subsidiary, the representations
and warranties contained in the Loan Documents shall be true and correct
(provided further that, together with such notice, the Borrower may submit such
revised Schedules to the Loan Documents to make revisions to the existing
Schedules thereto with respect to such Material Subsidiary as may be necessary
for such representations and warranties to be true and correct with respect to
such Material Subsidiary). Notwithstanding anything herein to the contrary, at
no time shall the Borrower permit the total assets of all Persons that were
designated as Immaterial Subsidiaries pursuant to this Section during the
immediately preceding twelve month period, determined on a combined basis in
accordance with GAAP and valued at the time of each such designation, but
excluding any assets acquired by such Persons pursuant to Section 8.2 or 8.3, to
exceed an amount equal to 5% of the total assets of the Borrower and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP, as of
the first day of such period.
8. NEGATIVE COVENANTS
The Borrower agrees that, so long as this Agreement is in effect, any Loan
remains outstanding and unpaid, or any other amount is owing under any Loan
Document to any Lender or the Administrative Agent, the Borrower shall not,
directly or indirectly:
8.1. Liens
Create, incur, assume or suffer to exist any Lien upon any of its
Property, whether now owned or hereafter acquired, or permit any of the Material
Subsidiaries so to do, except:
(a) Liens for Taxes, assessments or similar charges incurred in the ordinary
course of business which are not delinquent or which are being contested in
accordance with Section 7.4, provided that enforcement of such Liens is
stayed pending such contest;
(b) Liens (i) in connection with workers' compensation, unemployment insurance
or other social security obligations (but not ERISA), (ii) in connection
with deposits or pledges to secure bids, tenders, contracts (other than
contracts for
47
the payment of money), leases, statutory obligations, surety and appeal
bonds and other obligations of like nature arising in the ordinary course
of business, (iii) in connection with, or otherwise constituting, zoning
ordinances, easements, rights of way, minor defects, irregularities, and
other similar restrictions affecting real Property which do not materially
and adversely affect the value of such real Property or the financial
condition of the Borrower or such Material Subsidiary, as the case may be,
or materially impair its use for the operation of the business of the
Borrower or such Material Subsidiary, as the case may be, (iv) arising by
operation of law such as mechanics', materialmen's, carriers',
warehousemen's, lessors' and bankers' liens and rights of set-off incurred
in the ordinary course of business which are not delinquent or which are
being contested in accordance with Section 7.6, provided that enforcement
of such Liens is stayed pending such contest, and (v) arising out of
judgments or decrees which are being contested in accordance with Section
7.6, provided that enforcement of such Liens is stayed pending such
contest;
(c) Liens now existing or hereafter arising in favor of the Administrative
Agent or the Lenders under the Loan Documents;
(d) purchase money Liens on Property of the Borrower or any of the Material
Subsidiaries acquired after the date hereof to secure Indebtedness of the
Borrower incurred in connection with the acquisition of such Property,
provided that each such Lien is limited to such Property so acquired;
(e) Liens on Property of the Borrower and the Material Subsidiaries existing on
the Effective Date as set forth on Schedule 8.1 as renewed from time to
time, but not any increases in the amounts secured thereby or the Property
subjected to such Lien thereon (except under the CLECO Mortgage);
(f) Liens existing on Property of the Borrower or any of the Material
Subsidiaries acquired after the Effective Date provided that such Liens are
at all times thereafter limited to the Property so acquired and were not
created in contemplation of such acquisition;
(g) the Lien evidenced by the CLECO Mortgage; provided, however, that such Lien
shall not extend to or over any Property of a character not subject on the
date hereof to the Lien granted under the CLECO Mortgage;
(h) "permitted liens" as defined under Section 1.04 of the CLECO Mortgage, as
in effect on the date hereof, other than "funded liens" described in clause
(ix) of said Section 1.04, other Liens not otherwise prohibited by Section
5.05 of the CLECO Mortgage as in effect on the date hereof, and, in the
event the CLECO Mortgage is terminated, Liens of the same type and nature
as the foregoing Liens referred to in this clause (h), provided that the
amounts secured by such Liens shall not exceed the amounts that may be
secured by such foregoing Liens as the last day on which the CLECO Mortgage
was in effect;
(i) Liens created to secure Indebtedness representing, or incurred to
48
finance, the cost of Property acquired, constructed or improved by the
Borrower in the ordinary course of business after the date hereof and not
subject to (i) the Lien referred to in clause (g) above or (ii) Liens
existing on such Property at the time of acquisition thereof;
(j) Liens existing on property of any Person at the time that such Person
becomes a Subsidiary of the Borrower provided that such Liens were not
created to secure the acquisition of such Person;
(k) Liens to secure Indebtedness of any Subsidiary of the Borrower to the
Borrower or to any of its other Subsidiaries;
(l) Liens on Property (including any natural gas, oil or other mineral
Property) to secure all or a part of the cost of exploration, drilling or
development thereof or to secure Indebtedness incurred to provide funds for
any such purpose;
(m) Liens and security interests created, incurred or assumed in connection
with the purchase, lease, financing or refinancing of pollution control
facilities (and which Liens and security interest are limited to such
pollution control facilities);
(n) Liens (i) created to secure sales or factoring of accounts receivable and
other receivables, and (ii) to the extent not covered by clause (i) of this
subsection, Liens on accounts receivables and other receivables, to secure
Indebtedness of the Borrower or any of the Material Subsidiaries in an
aggregate amount not to exceed $20,000,000;
(o) Liens on any equity interest owned or otherwise held by or on behalf of the
Borrower or any Material Subsidiary created in connection with any project
financing;
(p) Liens to secure obligations of the Borrower in respect of agreements to
purchase electricity, gas or fuel from counterparties, provided that the
aggregate amount secured under this clause (p) shall not exceed
$15,000,000; and
(q) Liens created for the sole purpose of extending, renewing or replacing in
whole or in part Indebtedness secured by any lien, mortgage or security
interest referred to in the foregoing clauses (a) through (p); provided,
however, that the principal amount of Indebtedness secured thereby shall
not exceed the principal amount of Indebtedness so secured at the time of
such extension, renewal or replacement and that such extension, renewal or
replacement, as the case may be, shall be limited to all or a part of the
property or indebtedness that secured the lien or mortgage so extended,
renewed or replaced (and any improvements on such property).
8.2. Merger, Consolidation, Purchase or Sale of Assets, Etc.
Consolidate with, be acquired by, or merge into or with any Person, or
convey, sell, lease or otherwise dispose of all or any part of its Property, or
enter into any sale-
49
leaseback transaction, or purchase or otherwise acquire (in one or a series of
related transactions) any part of the Property (other than purchases or other
acquisitions of inventory, materials, equipment and similar Property in the
ordinary course of business) of any Person, including acquisitions of the Stock
of any Person, or permit any of the Material Subsidiaries so to do, except:
(a) Sales or other dispositions of inventory in the ordinary course of
business;
(b) Sales of accounts receivables and other receivables;
(c) Asset Sales, provided that (i) no Default or Event of Default shall exist
immediately before or after giving effect thereto and (ii) the amount of
such Asset Sale, when added to the total amount of all Asset Sales made by
the Borrower and the Material Subsidiaries during the immediately preceding
twelve month period, shall not exceed 10% or more of Material Total Assets
as of the first day of such twelve month period;
(d) any of the Material Subsidiaries may merge or consolidate with or into, or
acquire control of, or acquire all or any portion of the assets of any
Person, provided that immediately after giving effect thereto, the total
consideration to be paid by the Material Subsidiaries to or for the account
of any Person (other than the Borrower and the Material Subsidiaries) in
connection therewith, when added to the total consideration paid by the
Borrower and the Material Subsidiaries to or for the account of any Person
(other than the Borrower and the Material Subsidiaries) in connection with
all other mergers, consolidations and acquisitions permitted under Sections
8.2(d) and 8.2(e) during the period from the Effective Date through and
including the date thereof, and all loans, advances and other arrangements
outstanding at such time and permitted under Section 8.3, shall not exceed
the greater of (i) $110,000,000 or (ii) 10% of Material Total Assets as of
the most recently completed fiscal quarter; and
(e) mergers, consolidations or acquisitions of or by the Borrower with, into or
of another Person (including acquisitions by the Borrower of all or any
portion of the assets of any Person), in each case as to which the
following conditions have been satisfied:
(i) immediately before and after giving effect thereto, no Default or Event of
Default shall exist;
(ii) immediately before and after giving effect thereto, all of the
representations and warranties contained in the Loan Documents shall be
true and correct except as the context thereof otherwise requires and
except for those representations and warranties which by their terms or by
necessary implication are expressly limited to a state of facts existing at
a time prior to such merger, consolidation or acquisition, as the case may
be, or such other matters relating thereto as are identified in a writing
to the Administrative Agent and the Lenders and are
50
satisfactory to the Administrative Agent and the Lenders;
(iii) the Borrower shall be the surviving corporation thereof or such surviving
corporation shall be incorporated in a State of the United States with
substantially all of its assets and business located and conducted in the
United States and shall have expressly assumed the obligations of the
Borrower under the Loan Documents pursuant to a writing in form and
substance satisfactory to the Administrative Agent,
(iv) immediately after giving effect thereto, the total consideration to be
paid by the Borrower to or for the account of any Person (other than the
Material Subsidiaries of the Borrower) in connection therewith, when added
to the total consideration paid by the Borrower and the Material
Subsidiaries to or for the account of any Person (other than the Borrower
and the Material Subsidiaries) in connection with all mergers,
consolidations and acquisitions permitted under Sections 8.2(d) and 8.2(e)
during the period from the Effective Date through and including the date
thereof, and all loans, advances, investments and other arrangements
outstanding at such time and permitted under Section 8.3, shall not exceed
the greater of (1) $110,000,000 or (2) 10% of Material Total Assets as of
the most recently completed fiscal quarter, and
(v) the Administrative Agent and the Lenders shall have received a certificate
duly signed by a duly authorized officer of the Borrower identifying the
Person to be merged with or into, consolidated with, or acquired by, the
Borrower, and certifying as to each of the matters set forth in subclauses
(i) through (iv) of this clause (e).
8.3. Loans, Advances, etc.
At any time, make any loan or advance to, or enter into any
arrangement for the purpose of providing funds or credit to, any Person, or
permit any of the Material Subsidiaries so to do, other than loans, advances or
arrangements the total outstanding amount of which, when added to the total
consideration paid by the Borrower and the Material Subsidiaries in connection
with all mergers, consolidations and acquisitions of or by the Borrower and the
Material Subsidiaries during the period from the Effective Date through and
including the date thereof, shall not exceed the greater of (i) $110,000,000 or
(ii) 10% of Material Total Assets as of the most recently completed fiscal
quarter.
8.4. Amendments, etc. of Certain Agreements
Enter into or agree to any amendment, modification or waiver, or
permit any of the Material Subsidiaries so to do, of any term or condition of
the CLECO Mortgage or the Employee Stock Ownership Plan (other than amendments
and modifications described in the certificate delivered pursuant to Section 5.5
and any adoptive instruments or other agreements providing for the participation
in the Employee Stock Ownership Plan by the Borrower's
51
affiliates), which amendment, modification or waiver could, in the reasonable
opinion of the Administrative Agent, adversely affect the interests of the
Lenders under the Loan Documents.
9. DEFAULT
9.1. Events of Default
The following shall each constitute an "Event of Default" hereunder:
(a) The failure of the Borrower to pay any installment of principal of any Loan
on the date when due and payable; or
(b) The failure of the Borrower to pay any interest on any Loan, or any other
fees or expenses payable under any Loan Document, on the date when due and
payable, and such failure shall continue unremedied for a period of three
Business Days;
(c) The use of the proceeds of any Loan in a manner inconsistent with or in
violation of Section 2.15; or
(d) The failure of the Borrower to observe or perform any covenant or agreement
contained in Sections 7.3, 7.11 or Section 8; or
(e) The failure of the Borrower to observe or perform any other term, covenant,
or agreement contained in any Loan Document and such failure or event shall
have continued unremedied for a period of 30 days after the Borrower shall
have obtained knowledge thereof; or
(f) Any representation or warranty made in any Loan Document or deemed made by
the Borrower pursuant to Section 6.1, or in any certificate, report (other
than an auditor's report), opinion (other than an opinion of counsel), or
other document delivered or to be delivered pursuant thereto, shall prove
to have been incorrect or misleading (whether because of misstatement or
omission) in any material respect when made; or
(g) Any obligation of the Borrower or any of the Material Subsidiaries, whether
as principal, guarantor, surety or other obligor, for the payment of any
Indebtedness (other than Indebtedness under the Loan Documents), operating
leases or, in the case of the Borrower only, any other Contingent
Obligation, in excess of $10,000,000 in the aggregate for all such
Indebtedness, operating leases and other Contingent Obligations: (i) shall
become or shall be declared to be due and payable prior to the expressed
maturity thereof, (ii) shall not be paid when due or within any grace
period (as such grace period may be extended from time to time pursuant to
and in accordance with the documentation evidencing such obligation) for
the payment thereof, or (iii) any holder of any such obligation shall have
the right to declare such obligation due and payable prior to the expressed
maturity thereof; or
52
(h) The Borrower or any of the Material Subsidiaries shall (i) suspend or
discontinue its business, (ii) make an assignment for the benefit of
creditors, (iii) generally not pay its debts as such debts become due, (iv)
admit in writing its inability to pay its debts as they become due, (v)
file a voluntary petition in bankruptcy, (vi) become insolvent (however
such insolvency shall be evidenced), (vii) file any petition or answer
seeking for itself any reorganization, arrangement, composition,
readjustment of debt, liquidation or dissolution or similar relief under
any present or future statute, law or regulation of any jurisdiction,
(viii) petition or apply to any tribunal for any receiver, custodian or any
trustee for any substantial part of its Property, (ix) be the subject of
any such proceeding filed against it which remains undismissed for a period
of 45 days, (x) file any answer admitting or not contesting the material
allegations of any such petition filed against it or any order, judgment or
decree approving such petition in any such proceeding, (xi) seek, approve,
consent to, or acquiesce in any such proceeding, or in the appointment of
any trustee, receiver, sequestrator, custodian, liquidator, or fiscal agent
for it, or any substantial part of its Property, or an order is entered
appointing any such trustee, receiver, custodian, liquidator or fiscal
agent and such order remains in effect for 45 days, or (xii) take any
formal action for the purpose of effecting any of the foregoing or looking
to the liquidation or dissolution of the Borrower or such Material
Subsidiary, as the case may be; or
(i) An order for relief is entered under the United States bankruptcy laws or
any other decree or order is entered by a court having jurisdiction (i)
adjudging the Borrower or any of the Material Subsidiaries bankrupt or
insolvent, (ii) approving as properly filed a petition seeking
reorganization, liquidation, arrangement, adjustment or composition of or
in respect of the Borrower or any of the Material Subsidiaries under the
United States bankruptcy laws or any other applicable Federal or state law,
(iii) appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Borrower or any of the
Material Subsidiaries or of any substantial part of the Property thereof,
or (iv) ordering the winding up or liquidation of the affairs of the
Borrower or any of the Material Subsidiaries, and any such decree or order
continues unstayed and in effect for a period of 45 days; or
(j) Judgments or decrees against the Borrower or any of the Material
Subsidiaries aggregating in excess of $10,000,000 (which shall not be fully
covered by insurance after taking into account any applicable deductibles)
shall remain unpaid, unstayed on appeal, undischarged, unbonded or
undismissed for a period of at least 30 days; or
(k) Any Loan Document shall cease, for any reason, to be in full force and
effect or the Borrower shall so assert in writing or shall disavow any of
its obligations thereunder; or
(l) (i) Any Termination Event shall occur, (ii) any Accumulated Funding
Deficiency, whether waived, shall exist with respect to any Pension Plan,
(iii) any Person shall engage in any Prohibited Transaction involving any
Employee Benefit Plan, (iv) the Borrower, any of the Material Subsidiaries
or any ERISA Affiliate shall fail to pay when due an amount which is
payable by it to the PBGC or to a Pension Plan under Title IV of ERISA,
53
or (v) any other event or condition shall occur or exist with respect to an
Employee Benefit Plan, provided that the occurrence of any of the foregoing
actions or events set forth in clauses (i) through (v) of this clause (l),
individually or collectively could reasonably be expected to have a
Material Adverse Effect.
Upon the occurrence of an Event of Default or at any time thereafter
during the continuance thereof, (a) if such event is an Event of Default
specified in clause (h) or (i) of this Section 9.1, the Aggregate Commitments
shall immediately and automatically terminate and the Loans, all accrued and
unpaid interest thereon and all other amounts owing under the Loan Documents
shall immediately become due and payable, and the Administrative Agent may, and,
upon the direction of the Required Lenders shall, exercise any and all remedies
and other rights provided in the Loan Documents, and (b) if such event is any
other Event of Default, any or all of the following actions may be taken: (i)
with the consent of the Required Lenders, the Administrative Agent may, and upon
the direction of the Required Lenders shall, by notice to the Borrower, declare
the Aggregate Commitments to be terminated forthwith, whereupon the Aggregate
Commitments shall immediately terminate, and (ii) with the consent of the
Required Lenders, the Administrative Agent may, and upon the direction of the
Required Lenders shall, by notice of default to the Borrower, declare the Loans,
all accrued and unpaid interest thereon, and all other amounts owing under the
Loan Documents to be due and payable forthwith, whereupon the same shall
immediately become due and payable, and the Administrative Agent may, and upon
the direction of the Required Lenders shall, exercise any and all remedies and
other rights provided pursuant to the Loan Documents. Except as otherwise
provided in this Section, presentment, demand, protest and all other notices of
any kind are hereby expressly waived. The Borrower hereby further expressly
waives and covenants not to assert any appraisement, valuation, stay, extension,
redemption or similar laws, now or at any time hereafter in force which might
delay, prevent or otherwise impede the performance or enforcement of any Loan
Document.
In the event that the Aggregate Commitments shall have been terminated
or the Loans, accrued and unpaid interest thereon and all other amounts owing
under the Loan Documents shall have been declared due and payable pursuant to
the provisions of this Section, any funds received by the Administrative Agent
and the Lenders from or on behalf of the Borrower shall be applied by the
Administrative Agent and the Lenders in liquidation of the Loans and the
obligations of the Borrower under the Loan Documents in the following manner and
order: (i) first, to the payment of interest on, and then the principal portion
of, any Loans which the Administrative Agent may have advanced on behalf of any
Lender for which the Administrative Agent has not then been reimbursed by such
Lender or the Borrower; (ii) second, to the payment of any fees or expenses due
to the Administrative Agent from the Borrower hereunder, (iii) third, to
reimburse the Administrative Agent and the Lenders for any expenses (to the
extent not paid pursuant to clause (ii) above) due from the Borrower pursuant to
the provisions of Section 11.5; (iv) fourth, to the payment of accrued Facility
Fees, Utilization Fees and all other fees, expenses and amounts due under the
Loan Documents (other than principal of, and interest on, the Loans); (v) fifth,
to the payment of interest due on the Loans; (vi) sixth, to the payment of
principal outstanding on the Loans, pro rata according
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to each Lender's aggregate outstanding Loans; and (vii) seventh, to the payment
of any other amounts owing to the Administrative Agent and the Lenders under any
Loan Document.
10. THE ADMINISTRATIVE AGENT
10.1. Appointment
Each Lender hereby irrevocably designates and appoints BNY as the
Administrative Agent of such Lender under the Loan Documents and each such
Lender hereby irrevocably authorizes BNY, as the Administrative Agent for such
Lender, to take such action on its behalf under the provisions of the Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of the Loan Documents,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in any Loan Document,
the Administrative Agent shall not have any duties or responsibilities other
than those expressly set forth therein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into the Loan Documents or otherwise
exist against the Administrative Agent.
10.2. Delegation of Duties
The Administrative Agent may execute any of its duties under the Loan
Documents by or through agents or attorneys-in-fact and shall be entitled to
rely upon the advice of counsel concerning all matters pertaining to such
duties.
10.3. Exculpatory Provisions
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with the Loan Documents (except the Administrative Agent for its own
gross negligence or willful misconduct) or (ii) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties made
by the Borrower or any officer thereof contained in the Loan Documents or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, the Loan
Documents or for the value, validity, effectiveness, genuineness, perfection,
enforceability or sufficiency of any of the Loan Documents or for any failure of
the Borrower or any other Person to perform its obligations thereunder. The
Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, the Loan Documents, or to inspect the
properties, books or records of the Borrower. The Administrative Agent shall
not be under any liability or responsibility whatsoever, as Administrative
Agent, to the Borrower or any other Person as a consequence of any failure or
delay in performance, or any breach, by any Lender of any of its obligations
under any of the Loan Documents.
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10.4. Reliance by Administrative Agent
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, opinion, letter, cablegram, telegram, facsimile, telex
or teletype message, statement, order or other document or conversation believed
by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including counsel to the Borrower), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent may treat each
Lender, or the Person designated in the last notice filed with it under this
Section, as the holder of all of the interests of such Lender in its Loans and
in its Notes until written notice of transfer, signed by such Lender (or the
Person designated in the last notice filed with the Administrative Agent) and by
the Person designated in such written notice of transfer, in form and substance
satisfactory to the Administrative Agent, shall have been filed with the
Administrative Agent. The Administrative Agent shall not be under any duty to
examine or pass upon the validity, effectiveness, enforceability, perfection or
genuineness of the Loan Documents or any instrument, document or communication
furnished pursuant thereto or in connection therewith, and the Administrative
Agent shall be entitled to assume that the same are valid, effective and
genuine, have been signed or sent by the proper parties and are what they
purport to be. The Administrative Agent shall be fully justified in failing or
refusing to take any action under the Loan Documents unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under the Loan Documents in accordance
with a request or direction of the Required Lenders, and such request or
direction and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Notes.
10.5. Notice of Default
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default unless the
Administrative Agent has received written notice thereof from a Lender or the
Borrower. In the event that the Administrative Agent receives such a notice,
the Administrative Agent shall promptly give notice thereof to the Lenders and
the Borrower. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be directed by the Required Lenders,
provided, however, that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem to be in the best interests
of the Lenders.
10.6. Non-Reliance on Administrative Agent and Other Lenders
Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its respective officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations or warranties to it
and that no act by the Administrative Agent
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hereinafter, including any review of the affairs of the Borrower, shall be
deemed to constitute any representation or warranty by the Administrative Agent
to any Lender. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own evaluation of and investigation into the business,
operations, Property, financial and other condition and creditworthiness of the
Borrower and made its own decision to enter into this Agreement. Each Lender
also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, evaluations and decisions in taking or not taking action under
any Loan Document, and to make such investigation as it deems necessary to
inform itself as to the business, operations, Property, financial and other
condition and creditworthiness of the Borrower. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, Property, financial and other condition or
creditworthiness of the Borrower which may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
10.7. Indemnification
Each Lender agrees to indemnify and reimburse the Administrative Agent
in its capacity as such (to the extent not promptly reimbursed by the Borrower
and without limiting the obligation of the Borrower to do so), pro rata
according to the outstanding principal balance of the Revolving Credit Loans (or
at any time when no Revolving Credit Loans are outstanding, according to its
Commitment Percentage), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever (including any amounts paid to the Lenders
(through the Administrative Agent) by the Borrower pursuant to the terms of the
Loan Documents that are subsequently rescinded or avoided, or must otherwise be
restored or returned) which may at any time (including at any time following the
payment of the Notes) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of the Loan Documents
or any other documents contemplated by or referred to therein or the
transactions contemplated thereby or any action taken or omitted to be taken by
the Administrative Agent under or in connection with any of the foregoing;
provided, however, that no Lender shall be liable for the payment of any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements to the extent resulting
solely from the finally adjudicated gross negligence or willful misconduct of
the Administrative Agent. Without limitation of the foregoing, each Lender
agrees to reimburse the Administrative Agent promptly upon demand for its pro
rata share of any unpaid fees owing to the Administrative Agent, and any costs
and expenses (including reasonable fees and expenses of counsel) payable by the
Borrower under Section 11.5, to the extent that the Administrative Agent has not
been paid such fees or has not be reimbursed for such costs and expenses by the
Borrower. The failure of any Lender to reimburse the Administrative Agent
promptly upon demand for its pro rata share of any amount required to
57
be by the Lenders to the Administrative Agent as provided in this Section shall
not relieve any other Lender of its obligation hereunder to reimburse the
Administrative Agent for its pro rata share of such amount, but no Lender shall
be responsible for the failure of other Lender to reimburse the Administrative
Agent for such other Lender's pro rata share of such amount. The agreements in
this Section shall survive the termination of the Aggregate Commitments and the
payment of the Notes and all other amounts payable under the Loan Documents.
10.8. Administrative Agent in Its Individual Capacity
BNY and its respective affiliates may make loans to, accept deposits
from, issue letters of credit for the account of, and generally engage in any
kind of business with, the Borrower as though BNY were not Administrative Agent
hereunder. With respect to the Commitment and Loans made or renewed by BNY and
the Note issued to BNY, BNY shall have the same rights and powers under the Loan
Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall in each case
include BNY.
10.9. Successor Administrative Agent
If at any time the Administrative Agent deems it advisable, in its
sole discretion, it may submit to each of the Lenders a written notice of its
resignation as Administrative Agent under the Loan Documents, such resignation
to be effective upon the earlier of (i) the written acceptance of the duties of
the Administrative Agent under the Loan Documents by a successor Administrative
Agent and (ii) on the 30th day after the date of such notice. Upon any such
resignation, the Required Lenders shall have the right to appoint from among the
Lenders a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Required Lenders and accepted such
appointment in writing within 30 days after the retiring Administrative Agent's
giving of notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent, which successor
Administrative Agent shall be a commercial bank organized under the laws of the
United States or any State thereof and having a combined capital, surplus, and
undivided profits of at least $100,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent's rights, powers,
privileges and duties as Administrative Agent under the Loan Documents shall be
terminated. The Borrower and the Lenders shall execute such documents as shall
be necessary to effect such appointment. After any retiring Administrative
Agent's resignation as Administrative Agent, the provisions of the Loan
Documents shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under the Loan Documents. If at
any time there shall not be a duly appointed and acting Administrative Agent,
the Borrower agrees to make each payment due under the Loan Documents directly
to the Lenders entitled thereto during such time.
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11. OTHER PROVISIONS
11.1. Amendments and Waivers
(a) No failure to exercise and no delay in exercising, on the part of any
Lender, any right, remedy, power or privilege under any Loan Document
shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege under any Loan Document
preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges under the Loan Documents are cumulative and not exclusive of
any rights, remedies, powers and privileges provided by law. No waiver of
any provision of any Loan Document or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall
be permitted by this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a
Loan shall not be construed as a waiver of any Default, regardless of
whether any Lender may have had notice or knowledge of such Default at the
time.
(b) Notwithstanding anything to the contrary contained in any Loan Document,
with the written consent of the Required Lenders, the Administrative Agent
and the Borrower may, from time to time, enter into written amendments,
supplements or modifications thereof and, with the consent of the Required
Lenders, the Administrative Agent on behalf of the Lenders, may execute
and deliver to any such parties a written instrument waiving or consenting
to the departure from, on such terms and conditions as the Administrative
Agent may specify in such instrument, any of the requirements of the Loan
Documents or any Default and its consequences; provided, however, that no
such amendment, supplement, modification, waiver or consent shall:
(i) increase the Commitment of any Lender, without such Lender's consent;
(ii) unless agreed to by each Lender affected thereby, (1) reduce the principal
amount of any Loan, or reduce the rate of interest thereon, or reduce any
fees or other obligations payable under the Loan Documents or (2) extend
any date (including the Maturity Date except as provided in Section 2.18)
fixed for the payment of any principal of or interest on any Loan, any
fees, or any other obligation payable under the Loan Documents;
(iii) unless agreed to by all of the Lenders, (1) increase the Aggregate
Commitments, (2) change the definition of "Required Lenders" or any other
provision hereof specifying the number or percentage of Lenders required
to waive, amend or modify any rights hereunder or make any determination
or grant any consent hereunder, (3) change Section 3.3 or any other
provision of the Loan Documents in a manner that would alter the pro rata
sharing of payments required thereby, or (4) consent to any assignment or
delegation by the Borrower of any of its rights or obligations under any
Loan Document; and
59
(iv) unless agreed to by the Administrative Agent, amend, modify or otherwise
affect the rights or duties of the Administrative Agent under the Loan
Documents.
Any such amendment, supplement, modification or waiver shall apply equally to
each of the Lenders and shall be binding upon the parties to the applicable Loan
Documents, the Lenders, the Administrative Agent and all future holders of the
Notes. In the case of any waiver, the parties to the applicable Loan Documents,
the Lenders and the Administrative Agent shall be restored to their former
position and rights hereunder and under the outstanding Notes and other Loan
Documents to the extent provided for in such waiver, and any Default or Event of
Default waived shall not extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon. The Loan Documents may not be
amended orally or by any course of conduct.
11.2. Notices
All notices, requests and demands to or upon the respective parties to
the Loan Documents to be effective shall be in writing and, unless otherwise
expressly provided therein, shall be deemed to have been duly given or made when
delivered by hand, or when received, in the case of mail, first-class postage
prepaid or commercial overnight courier service, or when sent, in the case of
notice by facsimile, addressed as follows, in the case of the Borrower or the
Administrative Agent, at the Domestic Lending Office, in the case of each
Lender, or to such other addresses as to which the Administrative Agent may be
hereafter notified by the respective parties thereto or any future holders of
the Notes:
The Borrower:
CLECO Utility Group Inc.
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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The Administrative Agent:
The Bank of Xxx Xxxx
Xxx Xxxx Xxxxxx
Agency Function Administration
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 or 6366 or 6367;
with a copy to:
The Bank of New York
Energy Industries Division
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 or 7924;
except that any notice, request or demand by the Borrower to or upon the
Administrative Agent or the Lenders pursuant to Sections 2.3, 2.4, 2.5, 2.6 or
2.7 shall not be effective until received. Any party to a Loan Document may
rely on signatures of the parties thereto which are transmitted by facsimile or
other electronic means as fully as if originally signed.
11.3. No Waiver; Cumulative Remedies
No failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege under
any Loan Document shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege under any Loan
Document preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges under the Loan Documents are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
11.4. Survival of Representations and Warranties
All representations and warranties made under the Loan Documents and
in any document, certificate or statement delivered pursuant thereto or in
connection therewith shall survive the execution and delivery of the Loan
Documents.
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11.5. Payment of Expenses and Taxes
The Borrower agrees, promptly upon presentation of a statement or
invoice therefor, and whether any Loan is made (i) to pay or reimburse the
Administrative Agent for all its out-of-pocket costs and expenses reasonably
incurred in connection with the development, preparation and execution of the
Loan Documents and any amendment, supplement or modification thereto (whether or
not executed), any documents prepared in connection therewith and the
consummation of the transactions contemplated thereby, including the reasonable
fees and disbursements of Special Counsel, (ii) to pay or reimburse the
Administrative Agent and the Lenders for all of their respective costs and
expenses, including reasonable fees and disbursements of counsel, incurred in
connection with (a) any Default or Event of Default and any enforcement or
collection proceedings resulting therefrom or in connection with the negotiation
of any restructuring or "work-out" (whether consummated or not) of the
obligations of the Borrower under any of the Loan Documents and (b) the
enforcement of this Section, (iii) to pay, indemnify, and hold each Lender and
the Administrative Agent harmless from and against, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from, any
delay in paying, stamp, excise and other similar taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation of any of the transactions contemplated by, or any
amendment, supplement or modification of, or any waiver or consent under or in
respect of, the Loan Documents and any such other documents, and (iv) to pay,
indemnify and hold each Lender and the Administrative Agent and each of their
respective officers, directors and employees harmless from and against any and
all other liabilities, obligations, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever (including reasonable fees and disbursements of counsel) with respect
to the enforcement and performance of the Loan Documents, the use of the
proceeds of the Loans and the enforcement and performance of the provisions of
any subordination agreement in favor of the Administrative Agent and the Lenders
(all the foregoing, collectively, the "indemnified liabilities") and, if and to
the extent that the foregoing indemnity may be unenforceable for any reason, the
Borrower agrees to make the maximum payment permitted or not prohibited under
applicable law; provided, however, that the Borrower shall have no obligation
hereunder to pay indemnified liabilities to the Administrative Agent or any
Lender arising from the finally adjudicated gross negligence or willful
misconduct of the Administrative Agent or such Lender, as the case may be, or
claims between one indemnified party and another indemnified party. The
agreements in this Section shall survive the termination of the Aggregate
Commitments and the payment of the Notes and all other amounts payable under the
Loan Documents.
11.6. Lending Offices
Each Lender shall have the right at any time and from time to time to
transfer its Loans to a different office, provided that such Lender shall
promptly notify the Administrative Agent and the Borrower of any such change of
office. Such office shall thereupon become such Lender's Domestic Lending
Office or Eurodollar Lending Office, as the case may be, provided, however, that
no such Lender shall be entitled to receive any
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greater amount under Section 2.10, 2.12, 2.13 or 2.16 as a result of a transfer
of any such Loans to a different office of such Lender than it would be entitled
to immediately prior thereto unless such claim would have arisen even if such
transfer had not occurred.
11.7. Assignments and Participations
(a) The Loan Documents shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Administrative Agent, all future holders of the
Notes and their respective successors and assigns, except that, other than
as provided in Section 8.2(e), the Borrower may not assign, delegate or
transfer any of its rights or obligations under the Loan Documents without
the prior written consent of the Administrative Agent and each Lender.
(b) Each Lender shall have the right at any time, with the prior written
consent of the Borrower and the Administrative Agent (which consents shall
not be unreasonably withheld or delayed and, with respect to the Borrower,
shall not be required upon the occurrence and during the continuance of an
Event of Default), to sell, assign, transfer or negotiate all or any part
of such Lender's rights and obligations under the Loan Documents to any
Eligible Assignee, provided that:
(i) each such assignment shall be of a constant, and not a varying, percentage
of all of the assignor Lender's rights and obligations under the Loan
Documents; and
(ii) the assignor and such assignee shall deliver to the Administrative Agent
three copies of an Assignment and Acceptance Agreement executed by each of
them, along with an assignment fee in the sum of $3,500 for the account of
the Administrative Agent.
Upon receipt of such number of executed copies of each such Assignment and
Acceptance Agreement, together with the assignment fee therefor and the consents
required to such assignment, if required, the Administrative Agent shall record
the same and execute not less than two copies of such Assignment and Acceptance
Agreement in the appropriate place, deliver one such copy to the assignor and
one such copy to the assignee, and deliver one photocopy thereof, as executed,
to the Borrower. From and after the effective date specified in, and as defined
in, such Assignment and Acceptance Agreement, the assignee thereunder shall,
unless already a Lender, become a party hereto and shall, for all purposes of
the Loan Documents, be deemed a "Lender" and, to the extent provided in such
Assignment and Acceptance Agreement, the assignor Lender thereunder shall be
released from its obligations under this Agreement and the other Loan Documents.
The Borrower agrees that, if requested, in connection with each such assignment,
it shall at its own cost and expense execute and deliver to the Administrative
Agent or such assignee a Note, each payable to the order of such assignee and
dated the Effective Date. The Administrative Agent shall be entitled to rely
upon the representations and warranties made by the assignee under each
Assignment and Acceptance Agreement.
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(c) Each Lender may grant participations in all or any part of its rights under
the Loan Documents to one or more banks, insurance companies, financial
institutions, pension funds or mutual funds, provided that (i) such
Lender's obligations under the Loan Documents shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties to the
Loan Documents for the performance of such obligations, (iii) the Borrower,
the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under the Loan Documents, and (iv) the voting rights
of any holder of any participation shall be limited to decisions that only
do any of the following: (1) subject the participant to any additional
obligation, (2) reduce the principal of, or interest on, the Loans or any
fees or other amounts payable under the Loan Documents, or (3) postpone any
date fixed for the payment of principal of, or interest on, the Loans or
any fees or other amounts payable under the Loan Documents (except as
provided in Section 2.18). The Borrower acknowledges and agrees that any
such participant shall for purposes of Sections 2.10, 2.12, 2.13 and 2.16
be deemed to be a "Lender"; provided, however, the Borrower shall not, at
any time, be obligated to pay any participant in any interest of any Lender
hereunder any sum in excess of the sum which the Borrower would have been
obligated to pay to such Lender in respect of such interest had such Lender
not sold such participation.
(d) If any (i) assignment is made pursuant to subsection (b) above or (ii) any
participation is granted pursuant to subsection (c) of this Section shall
be made to any Person that is organized under the laws of any jurisdiction
other than the United States, the assignee or participant, as the case may
be, shall furnish such certificates, documents or other evidence to the
Borrower and the Administrative Agent, in the case of clause (i), and to
the Borrower and the Lender which sold such participation, in the case of
clause (ii), as shall be required by Section 2.10(c).
(e) No Lender shall, as between and among the Borrower, the Administrative
Agent and such Lender, be relieved of any of its obligations under the Loan
Documents as a result of any sale, assignment, transfer or negotiation of,
or granting of participations in, all or any part of its rights and
obligations under Loan Documents, except that a Lender shall be relieved of
its obligations to the extent of any such sale, assignment, transfer, or
negotiation of all or any part of its rights and obligations under the Loan
Documents pursuant to subsection (b) of this Section.
(f) Notwithstanding anything to the contrary contained in this Section, any
Lender may at any time or from time to time assign all or any portion of
its rights under the Loan Documents to a Federal Reserve Bank, provided
that any such assignment shall not release such assignor from its
obligations thereunder and provided further that no assignment fee shall be
payable to or for the account of the Administrative Agent in connection
therewith.
11.8. Counterparts
Each Loan Document (other than the Notes) may be executed by one or
more of the parties thereto on any number of separate counterparts and all of
said counterparts taken
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together shall be deemed to constitute one and the same document. It shall not
be necessary in making proof of any Loan Document to produce or account for more
than one counterpart signed by the party to be charged. A counterpart of any
Loan Document, or to any document evidencing, and of any an amendment,
modification, consent or waiver to or of any Loan Document transmitted by
facsimile shall be deemed to be an originally executed counterpart. A set of the
copies of the Loan Documents signed by all the parties thereto shall be
deposited with each of the Borrower and the Administrative Agent. Any party to a
Loan Document may rely upon the signatures of any other party thereto which are
transmitted by facsimile or other electronic means to the same extent as if
originally signed.
11.9. Adjustments; Set-off
(a) If any Lender (a "Benefited Lender") shall at any time receive any payment
of all or any part of its Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in
Section 9.1(h) or (i), or otherwise) in a greater proportion than any such
payment to and collateral received by any other Lender in respect of such
other Lender's Loans, or interest thereon (other than payments of principal
or interest in respect of Competitive Bid Loans when no Default or Event of
Default exists), such Benefited Lender shall purchase for cash from each of
the other Lenders such portion of each such other Lender's Loans, and shall
provide each of such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefited Lender to share the excess payment or benefits of such collateral
or proceeds ratably with each of the Lenders, provided, however, that if
all or any portion of such excess payment or benefits is thereafter
recovered from such Benefited Lender, such purchase shall be rescinded, and
the purchase price and benefits returned, to the extent of such recovery,
but without interest. The Borrower agrees that each Lender so purchasing a
portion of another Lender's Loans may exercise all rights of payment
(including rights of set-off, to the extent not prohibited by law) with
respect to such portion as fully as if such Lender were the direct holder
of such portion.
(b) In addition to any rights and remedies of the Lenders provided by law, upon
the occurrence of an Event of Default and the acceleration of the
obligations owing in connection with the Loan Documents, or at any time
upon the occurrence and during the continuance of an Event of Default under
Section 9.1(a), each Lender shall have the right, without prior notice to
the Borrower, any such notice being expressly waived by the Borrower to the
extent not prohibited by applicable law, to set-off and apply against any
indebtedness, whether matured or unmatured, of the Borrower to such Lender,
any amount owing from such Lender to the Borrower, at, or at any time
after, the happening of any of the above-mentioned events. To the extent
not prohibited by applicable law, the aforesaid right of set-off may be
exercised by such Lender against the Borrower or against any trustee in
bankruptcy, custodian, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment creditor of the
Borrower, or against anyone else claiming through or against the Borrower
or such trustee in bankruptcy, custodian, debtor in possession, assignee
for the benefit of creditors, receiver, or execution, judgment or
attachment creditor, notwithstanding the fact that such right of set-off
shall not have been exercised by such Lender prior to the
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making, filing or issuance, or service upon such Lender of, or of notice
of, any such petition, assignment for the benefit of creditors, appointment
or application for the appointment of a receiver, or issuance of execution,
subpoena, order or warrant. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off and
application made by such Lender, provided that the failure to give such
notice shall not affect the validity of such set-off and application.
11.10. Construction
The Borrower represents that it has been represented by counsel in
connection with the Loan Documents and the transactions contemplated thereby and
that the principle that agreements are to be construed against the draftsman
shall be inapplicable.
11.11. Indemnity
The Borrower agrees to indemnify and hold harmless the Administrative
Agent and each Lender and their respective affiliates, directors, officers,
employees, attorneys and agents (each an "Indemnified Person") from and against
any loss, cost, liability, damage or expense (including the reasonable fees and
disbursements of counsel of such Indemnified Person, including all local counsel
hired by any such counsel) incurred by such Indemnified Person in investigating,
preparing for, defending against, or providing evidence, producing documents or
taking any other action in respect of, any commenced or threatened litigation,
administrative proceeding or investigation under any federal securities law or
any other statute of any jurisdiction, or any regulation, or at common law or
otherwise, which is alleged to arise out of or is based upon (i) any untrue
statement or alleged untrue statement of any material fact by the Borrower in
any document or schedule executed or filed with any Governmental Authority by or
on behalf of the Borrower; (ii) any omission or alleged omission by the Borrower
to state any material fact required to be stated in such document or schedule,
or necessary to make the statements made therein, in light of the circumstances
under which made, not misleading; (iii) any acts, practices or omissions or
alleged acts, practices or omissions of the Borrower or its agents relating to
the use of the proceeds of any or all borrowings made by the Borrower which are
alleged to be in violation of Section 2.15, or in violation of any federal
securities law or of any other statute, regulation or other law of any
jurisdiction applicable thereto; or (iv) any acquisition or proposed acquisition
by the Borrower of all or a portion of the Stock, or all or a portion of the
assets, of any Person whether such Indemnified Person is a party thereto. The
indemnity set forth herein shall be in addition to any other obligations or
liabilities of the Borrower to each Indemnified Person under the Loan Documents
or at common law or otherwise, and shall survive any termination of the Loan
Documents, the expiration of the Aggregate Commitments and the payment of all
indebtedness of the Borrower under the Loan Documents, provided that the
Borrower shall have no obligation under this Section to an Indemnified Person
with respect to any of the foregoing to the extent found in a final judgment of
a court having jurisdiction to have resulted primarily out of the gross
negligence or willful misconduct of such Indemnified Person or arising solely
from claims between one such Indemnified Person and another such Indemnified
Person.
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11.12. Governing Law
The Loan Documents and the rights and obligations of the parties
thereunder shall be governed by, and construed and interpreted in accordance
with, the internal laws of the State of New York, without regard to principles
of conflict of laws.
11.13. Headings Descriptive
Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof.
11.14. Severability
Every provision of the Loan Documents is intended to be severable, and
if any term or provision thereof shall be invalid, illegal or unenforceable for
any reason, the validity, legality and enforceability of the remaining
provisions thereof shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the validity, legality or enforceability of any such term or provision in any
other jurisdiction.
11.15. Integration
All exhibits to a Loan Document shall be deemed to be a part thereof.
Except for agreements between or among the Administrative Agent, the Lenders and
the Borrower with respect to certain fees, the Loan Documents embody the entire
agreement and understanding among the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter thereof and supersede all prior
agreements and understandings among the Borrower, the Administrative Agent and
the Lenders with respect to the subject matter thereof.
11.16. Consent to Jurisdiction
The Borrower hereby irrevocably submits to the jurisdiction of any New
York State or Federal court sitting in the City of New York over any suit,
action or proceeding arising out of or relating to the Loan Documents. The
Borrower hereby irrevocably waives, to the fullest extent permitted or not
prohibited by law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding brought in such a
court and any claim that any such suit, action or proceeding brought in such a
court has been brought in an inconvenient forum. The Borrower hereby agrees
that a final judgment in any such suit, action or proceeding brought in such a
court, after all appropriate appeals, shall be conclusive and binding upon it.
11.17. Service of Process
The Borrower hereby further irrevocably consents to the service of
process in any suit, action or proceeding by sending the same by first class
mail, return receipt requested
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or by overnight courier service, to the address of the Borrower provided for in
Section 11.2. The Borrower hereby agrees that any such service (i) shall be
deemed in every respect effective service of process upon it in any such suit,
action, or proceeding and (ii) shall to the fullest extent enforceable by law,
be taken and held to be valid personal service upon and personal delivery to it.
11.18. No Limitation on Service or Suit
Nothing in the Loan Documents or any modification, waiver, consent or
amendment thereto shall affect the right of the Administrative Agent or any
Lender to serve process in any manner permitted by law or limit the right of the
Administrative Agent or any Lender to bring proceedings against the Borrower in
the courts of any jurisdiction or jurisdictions in which the Borrower may be
served.
11.19. WAIVER OF TRIAL BY JURY
THE ADMINISTRATIVE AGENT, THE LENDERS AND THE BORROWER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH
THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREIN. FURTHER, THE
BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE ADMINISTRATIVE
AGENT OR THE LENDERS, OR COUNSEL TO THE ADMINISTRATIVE AGENT OR THE LENDERS, HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR THE
LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER
OF RIGHT TO JURY TRIAL PROVISION. THE BORROWER ACKNOWLEDGES THAT THE
ADMINISTRATIVE AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS SECTION.
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IN WITNESS WHEREOF, the parties hereto have caused this 364-Day Credit
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
