EXHIBIT 99.02
EXECUTION COPY
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$400,000,000
FIVE-YEAR CREDIT AGREEMENT
Dated as of November 10, 2000
Among
XCEL ENERGY INC.,
THE BANKS LISTED ON THE SIGNATURE PAGES HEREOF,
BANK OF AMERICA, N.A. and CITICORP USA, INC.
as Syndication Agents
and
THE BANK OF NEW YORK,
as Administrative Agent.
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BNY CAPITAL MARKETS, INC.
Sole Lead Arranger and Book Manager
BANC OF AMERICA SECURITIES, LLC and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
Co-Arrangers
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TABLE OF CONTENTS
Page
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ARTICLE I
CREDIT FACILITY
Section 1.01 RC Loans................................................................................1
Section 1.02 Bid Rate Loans..........................................................................2
Section 1.03 Letters of Credit.......................................................................3
Section 1.04 Interest................................................................................8
Section 1.05 Repayment...............................................................................9
Section 1.06 Prepayment of Loans....................................................................10
Section 1.07 Limitation on Types of RC Loans........................................................10
Section 1.08 Reduction of Commitments...............................................................10
Section 1.09 Increase in Commitments................................................................11
Section 1.10 Fees...................................................................................11
Section 1.11 Computation of Interest and Fees.......................................................12
Section 1.12 Evidence of Indebtedness...............................................................12
Section 1.13 Mandatory Suspension and Conversion of Eurodollar Rate Loans...........................12
Section 1.14 Increased Costs; Reduced Return........................................................13
Section 1.15 Funding Losses.........................................................................14
Section 1.16 Certain Determinations.................................................................14
Section 1.17 Payments by the Borrower...............................................................15
Section 1.18 Distribution of Payments by the Administrative Agent...................................16
Section 1.19 Taxes..................................................................................16
Section 1.20 Change of Lending Office...............................................................18
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Section 1.21 Pro Rata Treatment.....................................................................18
Section 1.22 Sharing of Recoveries..................................................................19
Section 1.23 Bank Obligations Several...............................................................19
Section 1.24 Disbursement to Borrower by Administrative Agent Prior to Receipt of Funds.............19
ARTICLE II
CONDITIONS TO LOANS AND LETTERS OF CREDIT
Section 2.01 Conditions to Initial Loans and Letters of Credit......................................20
Section 2.02 Conditions to Each Loan and Letter of Credit...........................................22
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Organization; Power; Qualification.....................................................23
Section 3.02 Subsidiaries...........................................................................23
Section 3.03 Authorization; Enforceability; Required Consents; Absence of Conflicts.................23
Section 3.04 Taxes..................................................................................24
Section 3.05 Litigation.............................................................................24
Section 3.06 Financial Statements...................................................................24
Section 3.07 No Adverse Change or Event.............................................................25
Section 3.08 Investment Company Act; Public Utility Holding Company Act.............................25
Section 3.09 Compliance with Applicable Law and Contracts...........................................25
Section 3.10 Substance Release and Disposal.........................................................25
Section 3.11 Accuracy of Information................................................................25
Section 3.12 Pari Passu Status......................................................................26
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ARTICLE IV
AFFIRMATIVE COVENANTS
Section 4.01 Preservation of Existence and Properties...............................................26
Section 4.02 Scope of Business......................................................................26
Section 4.03 Compliance with Law; Payment of Taxes and Claims.......................................26
Section 4.04 Preservation of Enforceability.........................................................26
Section 4.05 Insurance..............................................................................26
Section 4.06 Use of Proceeds........................................................................26
Section 4.07 Ownership of Significant Subsidiaries..................................................27
Section 4.08 Delivery of Information................................................................27
Section 4.09 Accounting Matters.....................................................................28
Section 4.10 Visits, Inspections and Discussions....................................................28
ARTICLE V
NEGATIVE COVENANTS
Section 5.01 Benefit Plans..........................................................................29
Section 5.02 Merger or Consolidation................................................................29
Section 5.03 Disposition of Assets..................................................................29
Section 5.04 Transactions with Affiliates...........................................................30
Section 5.05 Liens..................................................................................30
Section 5.06 Leverage Ratio.........................................................................30
Section 5.07 Restrictive Agreements.................................................................30
ARTICLE VI
DEFAULT
Section 6.01 Events of Default......................................................................30
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Section 6.02 Remedies upon Event of Default.........................................................33
ARTICLE VII
THE ADMINISTRATIVE AGENT
Section 7.01 Appointment and Powers.................................................................34
Section 7.02 Limitation on Administrative Agent's Liability.........................................34
Section 7.03 Defaults...............................................................................34
Section 7.04 Rights as a Bank.......................................................................35
Section 7.05 Indemnification........................................................................35
Section 7.06 Non-Reliance on Administrative Agent and Other Banks...................................35
Section 7.07 Resignation of the Administrative Agent................................................36
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Notices and Deliveries.................................................................36
Section 8.02 Expenses; Indemnification..............................................................37
Section 8.03 Amounts Payable Due upon Request for Payment...........................................39
Section 8.04 Rights Cumulative......................................................................39
Section 8.05 Disclosures............................................................................39
Section 8.06 Amendments; Waivers....................................................................39
Section 8.07 Set-Off................................................................................40
Section 8.08 Assignments and Participations.........................................................40
Section 8.09 Governing Law..........................................................................43
Section 8.10 Judicial Proceedings; Waiver of Jury Trial.............................................43
Section 8.11 LIMITATION OF LIABILITY................................................................44
Section 8.12 Severability of Provisions.............................................................44
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Section 8.13 Counterparts...........................................................................44
Section 8.14 Survival of Obligations................................................................44
Section 8.15 Entire Agreement.......................................................................44
Section 8.16 Successors and Assigns.................................................................44
Section 8.17 Cash Collateral........................................................................44
Section 8.18 Syndication Agent Obligations..........................................................45
ARTICLE IX
INTERPRETATION
Section 9.01 Defined Terms..........................................................................45
Section 9.02 Other Interpretive Provisions..........................................................60
Section 9.03 Accounting Matters.....................................................................61
Section 9.04 Representations and Warranties.........................................................61
Section 9.05 Captions...............................................................................61
Section 9.06 Interpretation of Related Documents....................................................61
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ANNEX A Banks, Lending Offices and Notice Addresses
Schedule 1.01 FORM OF NOTICE OF BORROWING
Schedule 1.02(b) FORM OF REQUEST FOR BID RATE LOANS
Schedule 1.02(c) FORM OF BID RATE LOAN OFFER
Schedule 1.03 FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
Schedule 1.04 NOTICE OF CONVERSION OR CONTINUATION
Schedule 1.06 NOTICE OF PREPAYMENT
Schedule 1.09 FORM OF COMMITMENT INCREASE SUPPLEMENT
Schedule 1.19(a)(iv) NON-US BANK CERTIFICATE
Schedule 2.01(a)(i) CERTIFICATE AS TO RESOLUTIONS, ETC.
Schedule 3.02 SCHEDULE OF SUBSIDIARIES
Schedule 3.03 SCHEDULE OF REQUIRED CONSENTS AND GOVERNMENTAL APPROVALS
Schedule 3.05 SCHEDULE OF MATERIAL LITIGATION
Schedule 3.06 FINANCIAL STATEMENTS
Schedule 3.10 SCHEDULE OF ENVIRONMENTAL MATTERS
Schedule 4.08 CERTIFICATE AS TO FINANCIAL STATEMENTS AND DEFAULTS
Schedule 5.05 SCHEDULE OF EXISTING LIENS
Schedule 8.08(a) FORM OF ASSIGNMENT AND ACCEPTANCE
EXHIBIT A RC NOTE
EXHIBIT B BID RATE NOTE
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EXECUTION COPY
FIVE-YEAR
CREDIT AGREEMENT
Dated as of November 10, 2000
XCEL ENERGY INC., a Minnesota corporation, the BANKS listed on the
signature pages hereof, BANK OF AMERICA, N.A. and CITICORP USA, INC., as
Syndication Agents, and THE BANK OF NEW YORK, as Issuing Bank and Administrative
Agent, agree as follows (with certain terms used herein being defined in Article
10):
ARTICLE I
CREDIT FACILITY
Section 1.01 RC Loans. (a) Commitment to Lend. Upon the terms and
subject to the conditions of this Agreement, each Bank agrees to make, from time
to time during the period from the Agreement Date through the Termination Date,
RC Loans to the Borrower, provided that (i) the sum of (A) the aggregate unpaid
principal amount of such Bank's RC Loans and (B) the aggregate amount of such
Bank's Letter of Credit Participations shall not at any time exceed such Bank's
Commitment at such time and (ii) the sum of (A) the aggregate unpaid principal
amount of all Loans and (ii) the aggregate amount of all Letter of Credit
Participations shall not exceed at any time the aggregate amount of the
Commitments at such time. Subject to Section 1.07 and the other terms and
conditions of this Agreement, the RC Loans may, at the option of the Borrower,
be made as, and from time to time continued as or converted into, Base Rate or
Eurodollar Rate Loans of any permitted Type, or any combination thereof.
(b) Manner of Request. In order to request RC Loans, the
Borrower shall give the Administrative Agent notice (which shall be irrevocable)
no later than 10:00 a.m. (New York time) on, in the case of Base Rate Loans, the
requested date for the making of such RC Loans, and, in the case of Eurodollar
Rate Loans, the third Eurodollar Business Day before the requested date for the
making of such RC Loans. Each such notice shall be in the form of Schedule 1.01
and shall specify (A) the requested date for the making of the requested RC
Loans, which shall be, in the case of Base Rate Loans, a Business Day and, in
the case of Eurodollar Rate Loans, a Eurodollar Business Day, (B) the Type or
Types of RC Loans requested and (C) the amount of each such Type of RC Loan, the
aggregate of which amounts for all Types of RC Loans requested shall be
$2,000,000 or any multiple of $500,000 in excess thereof, or, if less, the
aggregate amount of the unused Commitments. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each Bank of the contents thereof and
of the amount and Type of each RC Loan to be made by such Bank on the requested
date specified therein.
(c) Funding by the Banks. Not later than 2:00 p.m. (New York
time) on each requested date for the making of RC Loans, each Bank shall, if it
has received the notice contemplated by Section 1.01(b) on or prior to 12:00
noon (New York time) on such date, in the case of Base Rate Loans, or on or
prior to its close of business on the third Eurodollar Business Day before such
date, in the case of Eurodollar Rate Loans, make available to the Administrative
Agent, in Dollars in funds immediately available to the Administrative Agent at
the Administrative Agent's Office, the RC Loans to be made by such Bank on such
date.
(d) Disbursement to the Borrower. All RC Loans made available
to the Administrative Agent in accordance with Section 1.01(c) shall be
disbursed by the Administrative Agent not later than 3:00 p.m. (New York time)
on the requested date therefor in Dollars in funds immediately available to the
Borrower by credit to an account of the Borrower at the Administrative Agent's
Office or in such other manner as may have been specified in the applicable
notice and as shall be acceptable to the Administrative Agent.
Section 1.02 Bid Rate Loans. (a) Right to Request. The Borrower may
request the Banks to make, from time to time during the period from the
Agreement Date through the Termination Date, Bid Rate Loans to the Borrower;
provided that the sum of (i) the aggregate unpaid principal amount of all Loans
and (ii) the aggregate amount of all Letter of Credit Participations shall not
exceed at any time the aggregate amount of the Commitments at such time.
(b) Manner of Request. In order to request Bid Rate Loans, the
Borrower shall give the Administrative Agent a request for Bid Rate Loans no
later than 1:00 p.m. (New York time) on the Business Day prior to the Bid Rate
Loan Date. Each such request shall be submitted substantially in the form of
Schedule 1.02(b) and shall specify (i) the Bid Rate Loan Date, which shall be a
Business Day, (ii) the aggregate principal amount of each Type of requested Bid
Rate Loans and (iii) the duration of the Interest Periods (each of which shall
end on a Business Day (x) no earlier than 7 days and no later than 180 days
after the Bid Rate Loan Date and (y) no later than the Termination Date) for
each Type of requested Bid Rate Loans. Upon receipt of a timely request for Bid
Rate Loans on a Business Day, the Administrative Agent shall notify each Bank of
the contents thereof no later than 2:30 p.m. (New York time) on such Business
Day.
(c) Submission of Offers by the Banks. Each Bank may, in its
sole and absolute discretion, submit one or more offers to make each Type of
requested Bid Rate Loan in response to a request for Bid Rate Loans. Offers
shall be irrevocable (but Loans to be made pursuant thereto shall be subject to
Article 2), except with the written consent of the Administrative Agent given on
the written instructions of the Borrower, and may not be modified except to
correct a manifest error. Offers shall (i) be submitted substantially in the
form of Schedule 1.02(c), (ii) identify the Bank making such offer, (iii)
identify the request for Bid Rate Loans to which such offer relates, (iv)
specify the Types of Bid Rate Loans such Bank is making an offer for, (v) for
each such Type of Bid Rate Loans, specify (A) the principal amount, or the
maximum and minimum principal amounts, of the Bid Rate Loan such Bank is willing
make (which amounts, singly or in the aggregate, may exceed such Bank's
Commitment at such time) and (B) the rate of interest per annum on the Bid Rate
Loan that such Bank is willing to accept, and (vi) be submitted by telecopier to
the Administrative Agent no later than 11:00 a.m. (New York time) on the Bid
Rate Loan Date, except that offers for requested Bid Rate Loans submitted by a
Bank that is the Administrative Agent or any Affiliate thereof shall be
submitted not later than one half hour prior to the deadline applicable to the
other Banks. No offer submitted by a Bank may contain qualifying, conditional or
similar language or contain proposed terms other than those specified in this
paragraph (c). No later than 11:30 a.m. (New York time) on the Bid Rate Loan
Date, the Administrative Agent shall notify the Borrower of the contents of all
offers received by the Administrative Agent at or prior to 11:00 a.m. (New York
time) on such day from the Banks.
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(d) Acceptance/Rejection of Offers. Not later than 12:00 noon
(New York time) on the Bid Rate Loan Date, the Borrower shall notify the
Administrative Agent (which notice shall be irrevocable except, with respect to
notices that have not yet been relied upon by any Bank, in the case of manifest
error) of the offers, if any, received from the Administrative Agent that the
Borrower is accepting. Each offer that the Borrower has not notified the
Administrative Agent by such time that it is accepting shall be deemed to have
been rejected. The Borrower may, in its sole discretion, accept or reject any
offer in whole or in part; provided that (i) the aggregate principal amount of
offers accepted may not (after giving effect to the making of the Bid Loans to
which such offers relate) cause the sum of (A) the aggregate unpaid principal
amount of all Loans and (B) the aggregate amount of all Letter of Credit
Participations to exceed the aggregate amount of the Commitments at such time,
(ii) the aggregate principal amount of offers accepted with respect to each
requested Type of Bid Rate Loan may not exceed the principal amount specified
for such Type in the request therefor, (iii) the aggregate principal amount of
any offer by any Bank accepted with respect to a requested Type of Bid Rate Loan
may not exceed the maximum, nor be less than the minimum, aggregate principal
amount thereof specified in such Bank's offer with respect to such Type of Bid
Rate Loan and (iv) subject to clauses (ii) and (iii) above, offers may be
accepted only on the basis of ascending rates of interest. If offers with
identical rates of interest are made by two or more Banks with respect to the
same Type of requested Bid Rate Loans for a greater aggregate principal amount
than the amount accepted by the Borrower, the principal amount accepted shall be
allocated by the Administrative Agent among such Banks as nearly as possible
(but in such multiples as the Administrative Agent may deem appropriate) in
proportion to the aggregate principal amount of such offers. Such determination
by the Administrative Agent shall be conclusive in the absence of manifest
error. Upon receipt of any notice from the Borrower accepting any offer or
offers, the Administrative Agent shall promptly notify each of the Banks that
submitted offers in response to the applicable request whether its offers were
accepted or rejected and, if any of such Bank's offers were accepted, shall
identify such offers and the respective amounts thereof accepted.
(e) Funding by the Banks. Not later than 3:00 p.m. (New York
time) on the Bid Rate Loan Date, each Bank shall make the amount of the Bid Rate
Loan or Bid Rate Loans to be made by such Bank available to the Administrative
Agent, in Dollars in funds immediately available to the Administrative Agent at
the Administrative Agent's Office.
(f) Disbursement to the Borrower. Bid Rate Loans shall be
disbursed by the Administrative Agent not later than 3:30 p.m. (New York time)
on the date specified therefor and shall be applied in the following order:
first, to repay Bid Rate Loans maturing or matured as of such date that have not
otherwise been repaid or for which provision for repayment has not been made;
and second, by credit to an account of the Borrower at the Administrative
Agent's Office or in such other manner as may have been specified to and as
shall be reasonably acceptable to the Administrative Agent, in each case in
Dollars in funds immediately available to the Borrower or the appropriate Bank,
as the case may be.
Section 1.03 Letters of Credit. (a) Commitment to Issue. Upon the terms
and subject to the conditions of this Agreement, the Issuing Bank agrees to
issue, from time to time during the period from the Agreement Date through the
Termination Date, one or more Letters of Credit for the account of the Borrower,
provided that (i) for each Bank, the sum of (A) the aggregate
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unpaid principal amount of such Bank's RC Loans and (B) the aggregate amount of
such Bank's Letter of Credit Participations shall not at any time exceed such
Bank's Commitment at such time, (ii) the sum of (A) the aggregate unpaid
principal amount of all Loans and (B) the aggregate amount of all Letter of
Credit Participations shall not exceed at any time the aggregate amount of the
Commitments at such time and (iii) the sum of the aggregate amount of all Letter
of Credit Participations and 364-Day Letter of Credit Participations shall not
exceed at any time the LC Sublimit at such time.
(b) Terms of Letters of Credit. Each Letter of Credit shall
(i) be in a form and shall contain such terms as shall be reasonably
satisfactory to the Issuing Bank, (ii) be denominated only in Dollars and shall
expire on or before the date that is one year after the date of issuance thereof
(provided, that any Letter of Credit may include terms that provide for the
automatic renewal thereof for successive one-year periods so long as such terms
include a provision whereby the Issuing Bank shall be entitled to elect that any
such renewal shall not occur if the conditions set forth in Section 2.02(b) and
(c) could not be fulfilled at such time, and the Issuing Bank shall give notice
of such election to the beneficiary thereof) and in any event not later than the
tenth Business Day preceding the Termination Date. Any extension of the expiry
date, or automatic renewal, of a Letter of Credit to a date beyond the then
existing expiry date thereof shall constitute an "issuance" of such Letter of
Credit for all purposes hereof on, in the case of any such extension, the date
on which such extension shall have been granted and, in the case of any such
automatic renewal, on the tenth Business Day preceding the last day on which the
Issuing Bank is entitled to give notice of its election that any such renewal
shall not occur.
(c) Manner of Request. In order to request a Letter of Credit,
the Borrower shall furnish to the Administrative Agent and the Issuing Bank, at
least five Business Days before the requested date of such issuance (which shall
be a Business Day), (i) notice thereof in the form of Schedule 1.03 and (ii) a
duly completed and executed copy of the Issuing Bank's then customary form of
letter of credit application. In the event of a conflict between the terms of
this Agreement and any such letter of credit application, the terms of this
Agreement shall control.
(d) Bank Participations. Upon the date of issuance of a Letter
of Credit, the Issuing Bank shall be deemed to have granted to each
Participating Bank (other than the Issuing Bank), and each Participating Bank
(other than the Issuing Bank) shall be deemed to have acquired from the Issuing
Bank, without further action by any party hereto, a participation in such Letter
of Credit and any Drawings that may at any time be made thereunder, to the
extent of such Bank's Participating Bank Percentage thereof.
(e) Existing Letter of Credit. The Existing Letter of Credit
shall be deemed to be a Letter of Credit hereunder and, on the Agreement Date,
the Issuing Bank shall be deemed to have granted to each Participating Bank
(other than the Issuing Bank), and each Participating Bank (other than the
Issuing Bank) shall be deemed to have acquired from the Issuing Bank, without
further action by any party hereto, a participation in the Existing Letter of
Credit and any Drawings that may at any time be made thereunder, to the extent
of such Bank's Participating Bank Percentage thereof.
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(f) Notice of Drawings. The Issuing Bank shall, within one
Business Day of receiving a Drawing request with respect to a Letter of Credit,
notify the Borrower of its receipt thereof, stating the date and amount of the
Drawing requested thereby and the date and amount of each Drawing disbursed
pursuant to such request; provided that the failure of the Issuing Bank to give,
or delay in giving, any such notice shall not release or diminish the
obligations hereunder of the Borrower in respect of such Drawing.
(g) Reimbursement of Drawings. The Borrower shall, on the
Business Day following the day it receives notice of each Drawing, if such
notice is received at or prior to 3:00 p.m. (New York time) on such day, and on
the second Business Day following the day it receives such notice, if such
notice is received after 3:00 p.m. (New York time) on such day, reimburse such
Drawing by paying to the Issuing Bank in immediately available funds the amount
of the payment made by the Issuing Bank with respect to such Drawing, together
with, if such Drawing is not reimbursed on the date made, interest thereon, from
(and including) the date of drawing to (but excluding) the date reimbursement is
due (or, if earlier, the date reimbursement is made), at a rate per annum equal
to the Base Rate as in effect from time to time.
(h) Funding of Participations. In the event that the Borrower
shall fail to make any such payment when due and for so long as such failure
shall be continuing, the Issuing Bank may give notice of such failure to the
Administrative Agent and each Participating Bank, which notice shall include, in
the case of a Participating Bank, the amount of such Participating Bank's
Participating Bank Percentage of such Drawing. Each Participating Bank (other
than the Issuing Bank) shall, in the event that it receives such notice from the
Issuing Bank at or before 12:00 noon (New York time) on any Business Day, fund
its participation in any unreimbursed Drawing by remitting to the Administrative
Agent, no later than 2:00 p.m. (New York time) on such day, in immediately
available funds, its Participating Bank Percentage of such Drawing, together
with, if such funds are not remitted on the date of drawing, interest thereon,
from (and including) the date of drawing to (but excluding) the date such funds
are to be remitted to the Administrative Agent (or, if earlier, the date such
funds are in fact so remitted), at a rate per annum equal to the Federal Funds
Rate as in effect from time to time. The Administrative Agent shall, in the
event it receives such funds from such Participating Bank at or before 2:00 p.m.
(New York time) on any day, no later than 4:00 p.m. (New York time) on such day,
make available the amount thereof to the Issuing Bank, in immediately available
funds. Any amount payable by any Participating Bank to the Administrative Agent
for the account of the Issuing Bank under this Section 1.03(h), and any amount
payable by the Administrative Agent to the Issuing Bank under this Section
1.03(h), that is not paid when due shall bear interest, for each day from the
date due (and including such day if paid after 2:00 p.m. (New York time) on such
day, in the case of any such payment by a Participating Bank to the
Administrative Agent, or 4:00 p.m. (New York time) on such day, in the case of
any such payment by the Administrative Agent to the Issuing Bank) in accordance
with this Section 1.03(h) until the date it is received by the Issuing Bank, at
a rate equal to the Federal Funds Rate until (and including) the third Business
Day after the date due and thereafter at the Base Rate plus 2%.
(i) Participating Banks' Entitlement to Payments. Upon payment
of the principal of or interest on a Drawing (whether by payment by the
Borrower, by exercise of any right of set-off, counterclaim or banker's lien, or
otherwise), (i) if a Participating Bank has not been
5
required to fund its participation in such Drawing in accordance with Section
1.03(h), (A) such Participating Bank shall be entitled to its Participating Bank
Percentage of any such payment of interest on such Drawing to the extent such
payment (together with any prior payments of interest on such Drawing) exceeds
interest calculated on the amount of such Drawing at a rate per annum equal to
the Federal Funds Rate as in effect from time to time for period from (and
including) the date of drawing to (but excluding) the date such payment is made,
but (B) such Participating Bank shall not be entitled to any portion of any
payment of principal of such Drawing; and (ii) if the Participating Bank has
been required to fund its participation of such Drawing in accordance with
Section 1.03(h), such Participating Bank shall be entitled to its Participating
Bank Percentage of any such payment of principal or interest.
(j) Obligations Absolute. The obligation of the Borrower to
reimburse the Issuing Bank, the Administrative Agent and each Participating Bank
for payments made with respect to any Letter of Credit, and the obligation of
each Participating Bank to acquire Letter of Credit Participations and to make
payments to the Issuing Bank with respect to Letters of Credit, shall be
absolute, unconditional and irrevocable under any and all circumstances without
reduction for any set-off or counterclaim of any nature whatsoever, may not be
terminated, suspended or delayed for any reason whatsoever, shall not be subject
to any qualification or exception, and shall be made in accordance with the
terms and conditions of this Agreement under all circumstances, including,
without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this
Agreement, any of the other Loan Documents or any other agreement;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower or any of its Affiliates or any Bank may have
at any time against a beneficiary or any transferee of any Letter of
Credit (or any Person for whom any such transferee may be acting), the
Administrative Agent, the Issuing Bank, any Participating Bank or any
other Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or therein or any
unrelated transactions (including any underlying transaction between
the Borrower or any of its Affiliates and the beneficiary for which any
such Letter of Credit was procured);
(iii) any draft, certificate or any other document
presented under any Letter of Credit proving to be forged, fraudulent
or invalid in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) payment by the Issuing Bank under any Letter of
Credit against presentation of demand, draft or certificate or other
document which does not comply with the terms of such Letter of Credit;
(v) the fact that a Default or Event of Default shall have
occurred and be continuing; or
(vi) any other circumstance or happening whatsoever.
(k) Limitation of Liability. (i) The Borrower agrees that none
of the Participating Banks, the Issuing Bank, the Administrative Agent or their
respective officers or directors shall
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be liable or responsible for, and the obligations of the Borrower to the
Participating Banks, the Issuing Bank and the Administrative Agent hereunder
shall not in any manner be affected by, (A) the use that may be made of any
Letter of Credit or the proceeds thereof by the beneficiary thereof or any other
Person or any acts or omissions of such beneficiary or any other Person; (B) the
validity or genuineness of documents presented in connection with any Drawing,
or of any endorsements thereon, even if such documents should, in fact, prove to
be in any or all respects, invalid, fraudulent or forged; or (C) any other
circumstances whatsoever in making or failing to make payment under any Letter
of Credit or any other action taken or omitted to be taken by any Person under
or in connection with any Letter of Credit; provided that the Borrower shall
have a claim against the Issuing Bank, and the Issuing Bank shall be liable to
the Borrower for, any damages suffered by the Borrower that are caused by (1)
the Issuing Bank's willful misconduct or gross negligence (as determined by a
court of competent jurisdiction) in determining whether documents presented
under any Letter of Credit issued by the Issuing Bank complied with the terms of
such Letter of Credit or (2) the Issuing Bank's willful failure or gross
negligence in failing (as determined by a court of competent jurisdiction) to
pay under such Letter of Credit after the presentation to it of documents
strictly complying with the terms and conditions of such Letter of Credit.
(ii) Without limiting the generality of the foregoing, the
Issuing Bank shall not be responsible for:
(A) the validity, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the issuance of
Letters of Credit,
(B) the validity of any instrument transferring or assigning
or purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof in whole or in part,
(C) errors, omissions, interruptions or delays in
transmissions or delivery of any messages, by mail, cable, telecopy,
telex or otherwise,
(D) the misapplication by the beneficiary of any Letter of
Credit of the proceeds of any drawing under such Letter of Credit, or
(E) any consequence arising from causes beyond the control of
the Issuing Bank, including, without limitation, any governmental acts.
(l) Indemnification and Reimbursement of Costs, Expenses and
Claims. (i) In addition to any other amounts payable under this Agreement, the
Borrower agrees to protect, indemnify, pay and hold the Issuing Bank harmless
from and against any and all claims, costs, charges and expenses (including
reasonable attorneys' fees) which the Issuing Bank may incur or be subject to as
a consequence, direct or indirect, of the issuance, amendment or administration
of, or payment of any Drawing under, any Letter of Credit, other than as a
result of the gross negligence or willful misconduct of the Issuing Bank as
determined by a court of competent jurisdiction.
(ii) Each Participating Bank shall, upon the demand of the
Issuing Bank, reimburse the Issuing Bank, to the extent the Issuing Bank has not
been reimbursed by the
7
Borrower after demand therefor, for the reasonable costs and expenses (including
reasonable legal fees) incurred by it (other than as a result of its willful
misconduct or gross negligence) in connection with the collection of amounts due
under, the administration of, and the preservation and enforcement of any rights
conferred by, the Letters of Credit or the performance of the Issuing Bank's
obligations under this Agreement in respect thereof (other than its obligation
to make Loans in its capacity as a Bank), to the extent of such Participating
Bank's Participating Bank Percentage (as of the time such costs and expenses are
incurred) of the amount of such costs and expenses. The Issuing Bank shall
refund any costs and expenses reimbursed by such Participating Bank that are
subsequently recovered from the Borrower in an amount equal to such
Participating Bank's Participating Bank Percentage thereof.
(m) Assignment by Nonparticipating Banks. If any Bank
Nonparticipation occurs with respect to any Bank, (i) the Administrative Agent
agrees, if requested by the Borrower, to attempt to locate a bank or other
financial institution that desires to accept the assignment of the Loans, Letter
of Credit Participations, Commitments and other rights and obligations hereunder
of such Bank and (ii) if such bank or other financial institution is located,
such Bank agrees to assign its interest in its Loans, Letter of Credit
Participations, Commitments and other rights and obligations hereunder to such
bank or other financial institution in accordance with, and subject to the
conditions set forth in, Section 8.08(a).
Section 1.04 Interest. (a) Rates. (i) Except during an Event of
Default, (A) each RC Loan shall bear interest on the outstanding principal
amount thereof until due at a rate per annum equal to, (1) so long as it is a
Base Rate Loan, the Base Rate as in effect from time to time and (2) so long as
it is a Eurodollar Rate Loan, the applicable Adjusted Eurodollar Rate plus the
Applicable Eurodollar Rate Margin and (B) each Bid Rate Loan shall bear interest
on the outstanding principal amount thereof at the rate determined in accordance
with Section 1.02(b). During an Event of Default, each Loan shall bear interest
on the outstanding principal amount thereof until due at the rate otherwise
applicable under the preceding sentence plus 2%.
(ii) If any amount payable under the Loan Documents (other
than principal of a Loan) is not paid when due (whether at maturity, by reason
of notice of prepayment or acceleration or otherwise), such unpaid amount shall,
to the maximum extent permitted by Applicable Law, bear interest at a rate per
annum equal to the applicable Overdue Rate.
(b) Payment. Interest shall be payable, in the case of (i) RC
Loans that are Base Rate Loans, on each Interest Payment Date, (ii) RC Loans
that are Eurodollar Rate Loans, on the last day of each applicable Interest
Period (and, if an Interest Period is longer than three months, at intervals of
three months after the first day of such Interest Period), (iii) Bid Rate Loans,
on the last day of the applicable Interest Period (and, if an Interest Period is
longer than 90 days, at intervals of 90 days after the first day of such
Interest Period) and (iv) any Loan, when such Loan shall be due (whether at
maturity, by reason of notice of prepayment or acceleration or otherwise) or
converted, but only to the extent then accrued on the amount then so due or
converted. Interest at the Overdue Rate shall be payable on demand.
(c) Conversion and Continuation of RC Loans. (i) All or any
part of the principal amount of RC Loans of any Type may, on any Business Day,
be converted into any other Type or Types of RC Loans, except that (A)
Eurodollar Rate Loans may be converted only
8
on the last day of an applicable Interest Period and (B) Base Rate Loans may be
converted into Eurodollar Rate Loans only on a Eurodollar Business Day.
(ii) Base Rate Loans shall continue as Base Rate Loans unless
and until such Loans are converted into RC Loans of another Type. Eurodollar
Rate Loans of any Type shall continue as RC Loans of such Type until the end of
the then current Interest Period therefor, at which time they shall be
automatically converted into Base Rate Loans unless the Borrower shall have
given the Administrative Agent notice in accordance with Section 1.04(c)(iv)
requesting either that such Loans continue as RC Loans of such Type for another
Interest Period or that such Loans be converted into RC Loans of another Type at
the end of such Interest Period.
(iii) Notwithstanding anything to the contrary contained in
Section 1.04(c)(i) or (ii), during a Default, the Administrative Agent may
notify the Borrower that RC Loans may only be converted into or continued as RC
Loans of certain specified Types and, thereafter, until no Default shall
continue to exist, RC Loans may not be converted into or continued as Loans of
any Type other than one or more of such specified Types.
(iv) The Borrower shall give the Administrative Agent notice
(which shall be irrevocable) of each conversion of RC Loans or continuation of
Eurodollar Rate Loans no later than 11:00 a.m. (New York time) on the third
Business Day before the requested date of such conversion or continuation. Each
notice of conversion or continuation shall be in the form of Schedule 1.04 and
shall specify (A) the requested date of such conversion or continuation, (B) the
amount and Type and, in the case of Eurodollar Rate Loans, the last day of the
applicable Interest Period of the RC Loans to be converted or continued and (C)
the amount and Type or Types of RC Loans into which such RC Loans are to be
converted or as which such RC Loans are to be continued. Upon receipt of any
such notice, the Administrative Agent shall promptly notify each Bank of (x) the
contents thereof, (y) the amount and Type and, in the case of Eurodollar Rate
Loans, the last day of the applicable Interest Period of each RC Loan to be
converted or continued by such Bank and (z) the amount and Type or Types of RC
Loans into which such RC Loans are to be converted or as which such RC Loans are
to be continued.
(v) RC Loans may not be converted into Bid Rate Loans, and
Bid Rate Loans may not be converted, except as required under Article VIII, or
continued.
(d) Maximum Interest Rate. Nothing contained in the Loan
Documents shall require the Borrower at any time to pay interest at a rate
exceeding the Maximum Permissible Rate. If interest payable by the Borrower on
any date would exceed the maximum amount permitted by the Maximum Permissible
Rate, such interest payment 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 Maximum Permissible
Rate, shall be increased by the unpaid amount of such reduction. Any interest
actually received for any period in excess of such maximum amount permitted for
such period shall be deemed to have been applied as a prepayment of the Loans.
Section 1.05 Repayment. (a) RC Loans. Each RC Loan shall mature and
become due and payable, and shall be repaid by the Borrower, in full on the
Termination Date.
9
(b) Bid Rate Loans. Each Bid Rate Loan shall mature and become
due and payable, and shall be repaid by the Borrower in full, on the last day of
the applicable Interest Period specified in accordance with Section 1.02(b).
(c) Drawings. The Borrower shall reimburse the Issuing Bank
for each Drawing under a Letter of Credit on the date determined with respect to
such Drawing in the manner set forth in Section 1.03(g).
Section 1.06 Prepayment of Loans. (a) RC Loans. The Borrower may, at
any time and from time to time, prepay the RC Loans in whole or in part, without
premium or penalty (but subject to Section 1.15), except that any partial
prepayment shall be in an aggregate principal amount of $2,000,000 or any
multiple of $500,000 in excess thereof. The Borrower shall give the
Administrative Agent notice of each prepayment no later than 11:00 a.m. (New
York time) on, in the case of a prepayment of Base Rate Loans, the day of such
prepayment (which shall be a Business Day) and, in the case of a prepayment of
Eurodollar Rate Loans, the third Eurodollar Business Day before the date of such
prepayment (which shall be a Eurodollar Business Day). Each such notice of
prepayment shall be in the form of Schedule 1.06 and shall specify (i) the date
such prepayment is to be made and (ii) the amount and Type and, in the case of
Eurodollar Rate Loans, the last day of the applicable Interest Period of the RC
Loans to be prepaid. Upon receipt of any such notice, the Administrative Agent
shall promptly notify each Bank of the contents thereof and the amount and Type
and, in the case of Eurodollar Rate Loans, the last day of the applicable
Interest Period of each RC Loan of such Bank to be prepaid. Amounts to be
prepaid shall irrevocably be due and payable on the date specified in the
applicable notice of prepayment, together with interest thereon as provided in
Section 1.04(b).
(b) Bid Rate Loans. Bid Rate Loans may not be optionally
prepaid in whole or in part.
Section 1.07 Limitation on Types of RC Loans. Notwithstanding anything
to the contrary contained in this Agreement, the Borrower shall borrow, prepay,
convert and continue RC Loans in a manner such that (a) the aggregate principal
amount of Eurodollar Rate Loans of the same Type and having the same Interest
Period shall at all times be not less than $1,000,000, (b) there shall not be,
at any one time, more than six Interest Periods in effect with respect to
Eurodollar Rate Loans of all Types and (c) no payment of Eurodollar Rate Loans
will have to be made prior to the last day of an applicable Interest Period in
order to repay the RC Loans on the date specified in Section 1.05.
Section 1.08 Reduction of Commitments. The Borrower may reduce the
Commitments by giving the Administrative Agent notice (which shall be
irrevocable) thereof no later than 11:00 a.m. (New York time) on the third
Business Day before the requested date of such reduction, except that, (a) no
partial reduction of the Commitments shall be in an aggregate amount other than
$10,000,000 or any multiple of $1,000,000 in excess thereof and (b) no reduction
may reduce the Commitments to an amount less than the sum of the aggregate
principal amount of Loans outstanding and the amount of all Letter of Credit
Participations outstanding at such time. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each Bank of the contents thereof and
the amount to which such Bank's Commitment is to be reduced.
10
Section 1.09 Increase in Commitments. At any time following the
Agreement Date and prior to the Termination Date the aggregate amount of the
Commitments may, at the option of the Borrower, be increased by an amount not in
excess of $200,000,000, either by new Banks establishing such additional
Commitments or by one or more then-existing Banks increasing their Commitments
(each such increase by either means, a "Commitment Increase," and each such new
Bank or Bank increasing its Commitment, an "Additional Commitment Bank");
provided that (a) each Additional Commitment Bank shall be reasonably acceptable
to the Administrative Agent and the Issuing Bank, (b) no Default shall exist
immediately prior to or after the effective date of such Commitment Increase,
(c) each such Commitment Increase shall be in an amount not less than
$10,000,000 and multiples of $5,000,000 in excess thereof, (d) no such
Commitment Increase shall become effective unless and until the Borrower, the
Administrative Agent, the Issuing Bank and the Additional Commitment Banks shall
have executed and delivered an agreement substantially in the form of Schedule
1.09 (a "Commitment Increase Supplement"), and (d) the increase in the Total
Commitments shall not exceed $200,000,000. On the effective date of such
Commitment Increase, each Additional Commitment Bank shall purchase, for
assignment, from each other existing Bank the portion of such other Bank's RC
Loans and Letter of Credit Participations outstanding at such time such that,
after giving effect to such assignments, the respective aggregate amount of RC
Loans and Letter of Credit Participations of each Bank shall be equal to such
Bank's pro rata share (based on the total Commitments, as increased pursuant
hereto) of the aggregate RC Loans and Letter of Credit Participations
outstanding. The purchase price for the RC Loans and Letter of Credit
Participations so assigned shall be the principal amount of the RC Loans and
unreimbursed Drawings so assigned plus the amount of accrued and unpaid interest
thereon on the date of assignment. Upon payment of such purchase price, each
other Bank shall be automatically deemed to have sold and made such an
assignment to such Additional Commitment Bank and shall, to the extent of the
interest assigned, be released from its obligations under this Agreement, and
such Additional Commitment Bank shall be automatically deemed to have purchased
and assumed such an assignment from each other Bank and, if not already a Bank
hereunder, shall be a party hereto and, to the extent of the interest assigned,
have the rights and obligations of a Bank under this Agreement.
Section 1.10 Fees. (a) Facility Fees. The Borrower shall pay to the
Administrative Agent for the account of each Bank a facility fee, for each day
from the Agreement Date through the Repayment Date, on the daily amount of the
greater of (i) such Bank's Commitment on such day and (ii) the sum of (A) an
aggregate unpaid principal amount of such Bank's RC Loans on such day and (B)
the aggregate amount of such Bank's Letter of Credit Participations on such day,
at a rate per annum equal to the Applicable Facility Fee Rate for such day. The
facility fee shall be payable on successive Interest Payment Dates, on the date
of the termination or any reduction of the Commitments (to the extent accrued
and unpaid on the amount of the reduction) and, at any time after the
termination of the Commitments, on demand.
(b) Letter of Credit Fees. The Borrower shall pay to the
Administrative Agent for the account of each Bank a letter of credit fee on the
daily aggregate amount of such Bank's Participating Bank Percentage of the
Contingent Reimbursement Obligations under all Letters of Credit with respect to
which such Bank is a Participating Bank, at a rate per annum equal to the
Applicable Eurodollar Rate Margin from time to time in effect. Such fees shall
be payable in arrears on successive Interest Payment Dates and on the date of
expiration or termination of each
11
Letter of Credit (to the extent accrued and unpaid with respect to the
Contingent Reimbursement Obligations under such Letter of Credit).
(c) Fees Non-Refundable. None of the fees payable under this
Section 1.10 shall be refundable in whole or in part.
Section 1.11 Computation of Interest and Fees. Interest calculated on
the basis of the Prime Rate shall be computed on the basis of a year of 365 or
366 days, as applicable, and paid for the actual number of days elapsed.
Interest calculated on any basis other than the Prime Rate and all fees payable
pursuant to this Agreement shall be computed on the basis of a year of 360 days
and paid for the actual number of days elapsed. Interest for any period shall be
calculated from and including the first day thereof to but excluding the last
day thereof.
Section 1.12 Evidence of Indebtedness. Each Bank's Loans and the
Borrower's obligation to repay such Loans with interest in accordance with the
terms of this Agreement shall be evidenced by this Agreement, the records of
such Bank and, in the case of RC Loans, a single RC Note payable to the order of
such Bank and, in the case of Bid Rate Loans, a single Bid Rate Note payable to
the order of such Bank. Each Bank's Letter of Credit Participations shall be
evidenced by this Agreement, the records of such Bank and the Letters of Credit.
The records of each Bank shall be prima facie evidence of such Bank's Loans and
Letter of Credit Participations and, in each case, of accrued interest thereon
and of all payments made in respect thereof.
Section 1.13 Mandatory Suspension and Conversion of Eurodollar Rate
Loans. A Bank's obligations to make, continue or convert into Eurodollar Rate
Loans of any Type shall be suspended, all such Bank's outstanding RC Loans of
that Type shall be converted on the last day of their applicable Interest
Periods (or, if earlier, in the case of clause (iii) below, on the last day such
Bank may lawfully continue to maintain RC Loans of that Type or, in the case of
clause (iv) below, on the day determined by such Bank to be the last Business
Day before the effective date of the applicable restriction) into, and all
pending requests for the making or continuation of or conversion into RC Loans
of such Type by such Bank shall be deemed requests for, Base Rate Loans, if:
(i) on or prior to the determination of an interest rate
for a Eurodollar Rate Loan of that Type for any Interest Period, the
Administrative Agent determines that for any reason appropriate
information is not available to it for purposes of determining the
Adjusted Eurodollar Rate for such Interest Period;
(ii) on or prior to the first day of any Interest Period
for a Eurodollar Rate Loan of that Type, the Required Banks determine
that the Adjusted Eurodollar Rate as determined by the Administrative
Agent for such Interest Period would not accurately reflect the cost to
such Banks of making, continuing or converting into a Eurodollar Rate
Loan of such Type for such Interest Period;
(iii) at any time such Bank determines that any Regulatory
Change Enacted after the Agreement Date makes it unlawful or
impracticable for such Bank or its applicable Lending Office to make,
continue or convert into any Eurodollar Rate Loan of that Type, or to
comply with its obligations hereunder in respect thereof; or
12
(iv) such Bank determines that, by reason of any
Regulatory Change Enacted after the Agreement Date, such Bank or its
applicable Lending Office is restricted, directly or indirectly, in the
amount that it may hold of (A) a category of liabilities that includes
deposits by reference to which, or on the basis of which, the interest
rate applicable to Eurodollar Rate Loans of that Type is directly or
indirectly determined or (B) the category of assets that includes
Eurodollar Rate Loans of that Type.
If, as a result of this Section 1.13, any RC Loan of any Bank that would
otherwise be made or maintained as or converted into a Eurodollar Rate Loan of
any Type for any Interest Period is instead made or maintained as or converted
into a Base Rate Loan, then, unless the corresponding RC Loan of each of the
other Banks is also to be made or maintained as or converted into a Base Rate
Loan, such RC Loan shall be treated as being a Eurodollar Rate Loan of such Type
for such Interest Period for all purposes of this Agreement (including the
timing, application and proration among the Banks of interest payments,
conversions and prepayments) except for the calculation of the interest rate
borne by such RC Loan. The Administrative Agent shall promptly notify the
Borrower and each Bank of the existence or occurrence of any condition or
circumstance specified in clause (a) (i) above, and each Bank shall promptly
notify the Borrower and the Administrative Agent of the existence or occurrence
of any condition or circumstance specified in clause (a) (ii), (iii) or (iv)
above applicable to such Bank's RC Loans, but the failure by the Administrative
Agent or such Bank to give any such notice shall not affect any Bank's rights
hereunder.
Section 1.14 Increased Costs; Reduced Return. If in the determination
of any Bank or, in the case of any Letter of Credit or Drawing, the Issuing
Bank, (a) any Regulatory Change Enacted after the Agreement Date shall directly
or indirectly (i) reduce the amount of any sum received or receivable by (A)
such Bank with respect to any Loan or Letter of Credit Participation or the
return to be earned by such Bank on any Loan or Letter of Credit Participation,
or (B) the Issuing Bank with respect to any Letter of Credit or Drawing, (ii)
impose a cost on (A) such Bank or any Affiliate of such Bank that is
attributable to the making, funding or maintaining of, or such Bank's commitment
to make or acquire, any Loan or Letter of Credit Participation, or (B) the
Issuing Bank or any of its Affiliates that is attributable to the issuance or
maintaining of, or the commitment to issue, any Letter of Credit or the making
or maintaining of any Drawing, (iii) require (A) such Bank or any Affiliate of
such Bank to make any payment on or calculated by reference to the gross amount
of any amount received by such Bank under any Loan Document in respect of its
Loans or its obligations to make Loans or (B) the Issuing Bank or any of its
Affiliates to make any payment on or calculated by reference to the gross amount
of any amount received by the Issuing Bank or any of its Affiliates in respect
of any Letter of Credit or its commitment to issue any Letter of Credit or
Drawing or (iv) reduce, or have the effect of reducing, the rate of return on
any capital of (A) such Bank or any Affiliate of such Bank that such Bank or
such Affiliate is required to maintain on account of any Loan or Letter of
Credit Participation or such Bank's commitment to make or acquire any Loan or
Letter of Credit Participation or (B) the Issuing Bank or any of its Affiliates
that the Issuing Bank or such Affiliate is required to maintain on account of
any Letter of Credit or Drawing or the Issuing Bank's commitment to issue any
Letter of Credit and (b) such reduction, increased cost or payment shall not be
fully compensated for by an adjustment in the applicable rates of interest
payable under the Loan Documents, then the Borrower shall, upon request, pay to
such Bank or
13
the Issuing Bank, as the case may be, such additional amounts as such Bank or
the Issuing Bank, as the case may be, determines will, together with any
adjustment in the applicable rates of interest payable hereunder, fully
compensate for such reduction, increased cost or payment; provided that (x)
neither any Bank nor the Issuing Bank may request compensation for any such
reduction, increased cost or payment unless such Bank or the Issuing Bank, as
the case may be, is generally requesting compensation for comparable reductions,
increased costs or payments from similarly situated customers from which it is
entitled to request compensation therefor and (y) the Borrower shall not be
required to pay compensation to any Bank or the Issuing Bank pursuant to this
Section 1.14 for any period prior to the date that is 180 days before request
for compensation is made by such Bank or the Issuing Bank, as the case may be
(except, in the event of a retroactive Regulatory Change, for the period that
such Regulatory Change is made retroactively effective). Additional amounts
payable by the Borrower under this Section 1.14 shall be payable, in the case of
those applicable to prior periods, within 15 days after request by such Bank or
the Issuing Bank, as the case may be, for such payment and, in the case of those
applicable to future periods, on the dates specified, or determined in
accordance with a method specified, by such Bank or the Issuing Bank, as the
case may be. Any request by a Bank or the Issuing Bank for the payment of
additional amounts under this Section 1.14 as a result of an increased cost,
reduced return or payment shall be accompanied by a certificate setting forth in
reasonable detail the basis for the determination that such additional amounts
are necessary to compensate such Bank or the Issuing Bank, as the case may be,
for such increased cost, reduced return or payment.
Section 1.15 Funding Losses. The Borrower shall pay to each Bank, upon
request, such amount or amounts as such Bank determines are necessary to
compensate it for any reasonable loss, cost or expense incurred by it as a
result of (a) any assignment pursuant to Section 1.09 of a Eurodollar Rate Loan
other than on the last day of an Interest Period for such Eurodollar Rate Loan,
(b) any payment, prepayment or conversion of a Eurodollar Rate Loan or payment
or prepayment of a Bid Rate Loan on a date other than the last day of an
Interest Period for such Eurodollar Rate Loan or Bid Rate Loan or (c) a
Eurodollar Rate Loan or a Bid Rate Loan for any reason not being made or, in the
case of a Eurodollar Rate Loans converted (other than as a result of the failure
of such Bank to make such Loan available to the Borrower upon the fulfillment of
the conditions specified in Article II without any determination by the
Administrative Agent or such Bank under Section 1.13), or any payment of
principal thereof or interest thereon not being made, on the date therefor
determined in accordance with the applicable provisions of this Agreement. At
the election of such Bank, and without limiting the generality of the foregoing,
but without duplication, such compensation on account of losses may include an
amount equal to the excess of (i) the interest that would have been received
from the Borrower under this Agreement on any amounts to be reemployed during an
Interest Period or its remaining portion over (ii) the interest component of the
return that such Bank determines it could have obtained had it placed such
amount on deposit in the interbank Dollar market selected by it for a period
equal to such Interest Period or its remaining portion. Any request for
compensation under this Section 1.15 shall be accompanied by a certificate
setting forth in reasonable detail the loss, cost or expense for which
compensation is claimed (including calculations setting forth in reasonable
detail the computation of such loss, cost or expense).
Section 1.16 Certain Determinations. In making the determinations
contemplated by Sections 1.13, 1.14 and 1.15, each Bank and the Issuing Bank may
make such estimates,
14
assumptions, allocations and the like that such Person in good faith determines
to be appropriate, and such Person's selection thereof in accordance with this
Section 1.16, and the determinations made by such Person on the basis thereof,
shall be final, binding and conclusive upon the Borrower, except, in the case of
such determinations, for manifest errors in computation or transmission.
Section 1.17 Payments by the Borrower. (a) Time, Place and Manner. All
amounts payable for the account of the Administrative Agent or the Issuing Bank
under the Loan Documents shall be made to the Administrative Agent at the
Administrative Agent's Office or at such other address as the Administrative
Agent or the Issuing Bank, respectively, may designate by notice to the
Borrower. All amounts payable for the account of any Bank under the Loan
Documents shall, in the case of payments on account of principal of or interest
on the Loans or fees, be made to the Administrative Agent at the Administrative
Agent's Office and, in the case of all other payments, be made directly to such
Bank at its Domestic Lending Office or at such other address as such Bank may
designate by notice to the Borrower. All amounts payable for the account of any
Bank under the Loan Documents, whether made to the Administrative Agent or
directly to such Bank, shall be made for the account of, in the case of payments
in respect of Eurodollar Rate Loans, such Bank's Eurodollar Lending Office and,
in the case of all other payments, such Bank's Domestic Lending Office. An
amount shall not be deemed to have been paid by or on behalf of the Borrower on
any day unless such amount has been received by the required Person, at the
required place of payment, in Dollars in funds immediately available to such
Person at such place, no later than 3:00 p.m. (New York time) on such day.
(b) No Reductions. All payments due to the Administrative
Agent, the Issuing Bank or any Bank under the Loan Documents shall be made,
observed or performed by the Borrower without any reduction or deduction
whatsoever, including any reduction or deduction for any set-off, recoupment,
counterclaim (whether sounding in tort, contract or otherwise) or Tax, except,
subject to Section 1.19, for any withholding or deduction for Taxes required to
be withheld or deducted under Applicable Law.
(c) Authorization to Charge Accounts. The Borrower hereby
authorizes the Administrative Agent, the Issuing Bank and each Bank, if and to
the extent any amount payable by the Borrower under the Loan Documents (whether
payable to such Person or to any other Person that is the Administrative Agent,
the Issuing Bank or a Bank) is not otherwise paid when due, to charge such
amount against any or all of the accounts of the Borrower with such Person or
any of its Affiliates (whether maintained at a branch or office located within
or without the United States), with the Borrower remaining liable for any
deficiency. Any Bank charging an amount against an account of the Borrower shall
provide notice thereof to the Borrower, within a reasonable time thereafter,
which notice shall include a description in reasonable detail of such action.
(d) Extension of Payment Dates. Whenever any payment to the
Administrative Agent, the Issuing Bank or any Bank under the Loan Documents
would otherwise be due on a day that is not a Business Day, such payment shall
instead be due on the next succeeding Business Day. If the date any payment
under the Loan Documents is due is extended (whether by operation of any Loan
Document, Applicable Law or otherwise), such payment shall bear interest for
such extended time at the rate of interest applicable hereunder.
15
Section 1.18 Distribution of Payments by the Administrative Agent. (a)
The Administrative Agent shall promptly distribute to the Issuing Bank and each
Bank its share of each payment received by the Administrative Agent under the
Loan Documents for the account of the Issuing Bank and the Banks; provided that,
if at the time of distribution, any Bank is in default of a payment obligation
to the Issuing Bank hereunder, the Administrative Agent may remit to the Issuing
Bank so much of any amount otherwise distributable to such Bank as shall be
necessary to cure such default. Distributions by the Administrative Agent to the
Issuing Bank or a Bank shall be made by credit to an account of the Issuing Bank
or such Bank at the Administrative Agent's Office or by wire transfer to an
account of the Issuing Bank or such Bank at an office of any other commercial
bank located in the United States.
(b) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Issuing
Bank or the Banks under the Loan Documents that the Borrower will not make such
payment in full, the Administrative Agent may assume that the Borrower has made
such payment in full to the Administrative Agent on such date and the
Administrative Agent in its sole discretion may, in reliance upon such
assumption, cause to be distributed to the Issuing Bank and each Bank on such
due date a corresponding amount with respect to the amount then due the Issuing
Bank and such Bank. If and to the extent the Borrower shall not have so made
such payment in full to the Administrative Agent and the Administrative Agent
shall have so distributed to the Issuing Bank or any Bank a corresponding
amount, the Issuing Bank or such Bank shall, on demand, repay to the
Administrative Agent the amount so distributed together with interest thereon,
for each day from the date such amount is distributed to the Issuing Bank or
such Bank until the date the Issuing Bank or such Bank repays such amount to the
Administrative Agent, at the Federal Funds Rate until (and including) the third
Business Day after demand is made and thereafter at the Base Rate plus 2%.
Section 1.19 Taxes. (a) (i) Taxes Payable by the Borrower. If under
Applicable Law any Tax (other than Bank Taxes) is required to be withheld or
deducted by the Borrower from, or is otherwise payable by the Borrower in
connection with, any payment to the Administrative Agent, the Issuing Bank or
any Bank under the Loan Documents, the Borrower (A) shall (1), if so required,
withhold or deduct the amount of such Tax from such payment and, in any case,
pay such Tax to the appropriate taxing authority in accordance with Applicable
Law and (2) indemnify the Administrative Agent, the Issuing Bank and such Bank
in accordance with the provisions of Section 8.02(d) against its failure so to
do and (B) shall, subject to Section 1.19(a)(iii), pay to the Administrative
Agent, the Issuing Bank or such Bank, as applicable, such additional amounts as
may be necessary so that the net amount received by the Administrative Agent,
the Issuing Bank or such Bank with respect to such payment, after withholding or
deducting all such Taxes required to be withheld or deducted by the Borrower, is
equal to the full amount payable under the Loan Documents. If any such Tax is
withheld or deducted by the Borrower from, or is otherwise payable by the
Borrower in connection with, any payment payable to the Administrative Agent,
the Issuing Bank or any Bank under the Loan Documents, the Borrower shall, as
soon as possible after the date of such payment, furnish to the Administrative
Agent, the Issuing Bank or such Bank, as applicable, the original or a certified
copy of a receipt for such Tax from the applicable taxing authority.
16
(ii) Taxes Payable by the Administrative Agent, the Issuing
Bank or any Bank. The Borrower shall, promptly upon request by the
Administrative Agent, the Issuing Bank or any Bank for the payment thereof, but
subject to Section 1.19(a)(iii), pay to the Administrative Agent, the Issuing
Bank or such Bank, as the case may be, all Taxes (other than Bank Taxes) payable
by the Administrative Agent, the Issuing Bank or such Bank, as the case may be,
with respect to any payment due to the Administrative Agent, the Issuing Bank or
such Bank under the Loan Documents.
(iii) Limitations. Notwithstanding anything to the contrary
contained herein, the Borrower shall not be required to pay any additional
amount in respect of withholding of United States Federal income taxes pursuant
to this Section 1.19 to any Bank except (A) in the case of a Person that is a
Bank on the Agreement Date, to the extent such Taxes are required to be withheld
as a result of a Regulatory Change Enacted after the Agreement Date and (B) in
the case of a Person that becomes a Bank after the Agreement Date, to the extent
(1) such Taxes are required to be withheld as a result of a Regulatory Change
Enacted after the date such Person becomes a Bank or (2) such additional amount
would have been payable had such Person not become a Bank; provided, however,
that the Borrower shall not be required to pay any additional amount in respect
of withholding of United States Federal income taxes pursuant to this Section
1.19 to the extent such withholding is required because such Bank has failed to
submit any form or certificate that it is entitled to so submit under Applicable
Law.
(iv) Exemption from US Withholding Taxes. There shall be
submitted to the Borrower and the Administrative Agent, (A) on or before the
first date that interest or fees are payable to the Issuing Bank or such Bank
under the Loan Documents, (1) if at the time the same are applicable, (aa) by
each Bank that is not a United States Person and the Issuing Bank, if it is not
a United States Person, two duly completed and signed copies of Internal Revenue
Service Form W-8BEN or W-8ECI (or successor forms), in either case entitling the
Issuing Bank or such Bank to a complete exemption from withholding of any United
States federal income taxes on all amounts to be received by the Issuing Bank or
such Bank under the Loan Documents, or (bb) by each Bank that is a Non-US Bank
and the Issuing Bank if it is a Non-US Bank, (x) a duly completed Internal
Revenue Service Form W-8BEN (or successor form) and (y) a certification in the
form of Schedule 1.19(a)(iv) that the Issuing Bank or such Bank, as the case may
be, is a Non-US Bank or (2) if at the time any of the foregoing are
inapplicable, duly completed and signed copies of such form, if any, as entitles
the Issuing Bank or such Bank, as the case may be, to exemption from withholding
of United States federal income taxes to the maximum extent to which the Issuing
Bank or such Bank is then entitled under Applicable Law, and (B) from time to
time thereafter, prior to the expiration or obsolescence of any previously
delivered form or upon any previously delivered form becoming inaccurate or
inapplicable, such further duly completed and signed copies of such form, if
any, as entitles the Issuing Bank or such Bank, as the case may be, to exemption
from withholding of United States Federal income taxes to the maximum extent to
which such Person is then entitled under Applicable Law. The Issuing Bank and
each Bank shall promptly notify the Borrower and the Administrative Agent if (A)
it is required to withdraw or cancel any form or certificate previously
submitted by it or any such form or certificate has otherwise become ineffective
or inaccurate or (B) payments to it are or will be subject to withholding of
United States Federal income taxes to a greater extent than the extent to which
payments to it were previously subject. Upon the request of the Borrower or the
Administrative Agent, each Bank that is a
17
United States Person and the Issuing Bank if it is a United States Person shall
from time to time submit to the Borrower and the Administrative Agent a
certificate to the effect that it is such a United States Person and a duly
completed Internal Revenue Service Form W-9 (or successor form).
(b) Credits and Deductions. If the Administrative Agent, the
Issuing Bank or any Bank obtains any credit, deduction or other reduction in
Bank Taxes with respect to any payment made by the Borrower under Section
1.19(a)(i), the Administrative Agent, the Issuing Bank or such Bank, as the case
may be, shall pay to the Borrower such amount, not exceeding the increased
amount paid by the Borrower, as is equal to the net after-tax value to the
Administrative Agent, the Issuing Bank or such Bank, in its sole opinion, of
such part of such credit, deduction or other reduction as it considers to be
allocable to such payment by the Borrower, having regard to all of the
Administrative Agent's, the Issuing Bank's or such Bank's dealings giving rise
to similar credits, deductions or other reductions in relation to the same tax
period and to the cost of obtaining the same; provided, however, that (i) the
Administrative Agent, the Issuing Bank or such Bank, as the case may be, shall
not be obligated to disclose to the Borrower any information regarding its tax
affairs or computations and (ii) nothing in this Section 1.19(b) shall interfere
with the right of the Administrative Agent, the Issuing Bank or such Bank to
arrange its tax affairs as it deems appropriate.
Section 1.20 Change of Lending Office. If an event occurs with respect
to a Lending Office of any Bank or, in the case of any Letter of Credit or
Drawing, the Issuing Bank, that obligates the Borrower to pay any amount under
Section 1.19(a), makes operable the provisions of clause (a)(iii) or (iv), or
(b), of Section 1.13 or entitles such Bank or the Issuing Bank, as the case may
be, to make a claim under Section 1.19(a) or 1.14, such Bank or the Issuing
Bank, as the case may be, shall, if requested by the Borrower, use reasonable
efforts to designate another Lending Office or Offices the designation of which
will reduce the amount the Borrower is so obligated to pay, eliminate such
operability or reduce the amount such Bank or the Issuing Bank, as the case may
be, is so entitled to claim, provided that such designation would not, in the
sole and absolute discretion of such Bank or the Issuing Bank, as the case may
be, be disadvantageous to such Bank or the Issuing Bank in any manner or
contrary to such Bank's or the Issuing Bank's, as the case may be, policies.
Each Bank and the Issuing Bank may at any time and from time to time change any
Lending Office and shall give notice of any such change to the Administrative
Agent and the Borrower. Except in the case of a change in Lending Offices made
at the request of the Borrower, the designation of a new Lending Office by any
Bank or the Issuing Bank shall not obligate the Borrower to pay any amount to
such Bank under Section 1.19(a), make operable the provisions of clause (a)(iii)
or (a)(iv) or (b) of Section 1.13 or entitle such Bank or the Issuing Bank to
make a claim under Section 1.19(a) or 1.14 if such obligation, the operability
of such clause or such claim results solely from such designation and not from a
Regulatory Change Enacted thereafter.
Section 1.21 Pro Rata Treatment. Except to the extent otherwise
provided herein, (a) RC Loans of each Type to be made on any day shall be made
by the Banks pro rata in accordance with their respective Commitments, (b) RC
Loans of the Banks shall be converted and continued pro rata in accordance with
their respective amounts of RC Loans of the Type and, in the case of Eurodollar
Rate Loans, having the Interest Period being so converted or continued, (c) each
reduction in the Commitments shall be made pro rata in accordance with the
respective amounts thereof and (d) each payment of the principal of or interest
on the RC Loans,
18
reimbursement of Drawings under Letters of Credit or of facility and letter of
credit fees shall be made for the account of the Banks pro rata in accordance
with the respective amounts thereof then due to the Banks.
Section 1.22 Sharing of Recoveries. Each Bank agrees that, if, for any
reason, including as a result of (a) the exercise of any right of counterclaim,
set-off, banker's lien or similar right, (b) its claim in any applicable
bankruptcy, insolvency or other similar law being deemed secured by a Debt owed
by it to the Borrower, including a claim deemed secured under Section 506 of the
Bankruptcy Code, or (c) the allocation of payments by the Administrative Agent
or the Borrower in a manner contrary to the provisions of Section 1.21, such
Bank shall receive payment of a proportion of the aggregate amount due and
payable to it hereunder as principal of or interest on the Loans or Letter of
Credit Participations or fees that is greater than the proportion received by
any other Bank in respect of the aggregate of such amounts due and payable to
such other Bank hereunder, then the Bank receiving such proportionately greater
payment shall purchase participations (which it shall be deemed to have done
simultaneously upon the receipt of such payment) in the rights of the other
Banks hereunder so that all such recoveries with respect to such amounts due and
payable hereunder (net of costs of collection) shall be pro rata; provided,
however, that no such participation shall be deemed to have been so purchased in
any Bid Rate Loans of any of the other Banks; provided, further, that if all or
part of such proportionately greater payment received by the purchasing Bank is
thereafter recovered by or on behalf of the Borrower from such Bank, such
purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such Bank to the extent of such recovery,
but without interest (unless the purchasing Bank is required to pay interest on
the amount recovered to the Person recovering such amount, in which case the
selling Bank shall be required to pay interest at a like rate). The Borrower
expressly consents to the foregoing arrangements and agrees that any holder of a
participation in any rights hereunder so purchased or acquired pursuant to this
Section 1.22 shall, with respect to such participation, be entitled to all of
the rights of a Bank under Sections 1.14, 1.15, 1.16, 1.19, 1.20, 8.02, and 8.07
(subject to any condition imposed on a Bank hereunder with respect thereto,
including delivery of the forms and certificates required under Section
1.19(a)(iv)) and may exercise any and all rights of set-off with respect to such
participation as fully as though the Borrower were directly indebted to the
holder of such participation for Loans in the amount of such participation.
Section 1.23 Bank Obligations Several. The obligations of the Banks
under this Agreement are several and not joint. Any Bank's failure to make any
Loan to be made by it on the requested date therefor shall not relieve any other
Bank of its obligation to make any Loan to be made by such other Bank on such
date, but such other Bank shall not be liable for such failure. Any
Participating Bank's failure to fund its participation in a Drawing shall not
relieve any other Participating Bank of its obligation to fund its participation
in such Drawing, but such other Participating Bank shall not be liable for such
failure.
Section 1.24 Disbursement to Borrower by Administrative Agent Prior to
Receipt of Funds. Unless the Administrative Agent shall have received notice
from a Bank prior to 2:00 p.m. (New York time) on the requested date for the
making of any Loans that such Bank will not make available to the Administrative
Agent the Loans to be made by such Bank on such date, the Administrative Agent
may assume that such Bank has made such Loans available to the Administrative
Agent on such date in accordance with Section 1.01(c) or 1.02(e), as the case
19
may be, and the Administrative Agent in its sole discretion may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount on behalf of such Bank. If and to the extent such Bank
shall not have so made available to the Administrative Agent the Loans to be
made by such Bank on such date and the Administrative Agent shall have so made
available to the Borrower a corresponding amount on behalf of such Bank, such
Bank shall, on demand, pay to the Administrative Agent such corresponding amount
together with interest thereon, for each day from the date such amount shall
have been so made available by the Administrative Agent to the Borrower until
the date such amount shall have been repaid to the Administrative Agent, at the
Federal Funds Rate until (and including) the third Business Day after demand is
made and thereafter at the Base Rate plus 2%. If such Bank does not pay such
corresponding amount promptly upon the Administrative Agent's demand therefor,
the Administrative Agent shall promptly notify the Borrower and the Borrower
shall immediately repay such corresponding amount to the Administrative Agent
together with accrued interest thereon at the applicable rate or rates provided
in Section 1.04(a).
ARTICLE II
CONDITIONS TO LOANS AND LETTERS OF CREDIT
Section 2.01 Conditions to Initial Loans and Letters of Credit. The
obligation of each Bank to make its initial Loan (whether such initial Loans are
RC Loans or Bid Rate Loans) or the Issuing Bank to issue the initial Letter of
Credit hereunder, whichever shall first occur, is subject to the determination
of each Bank and the Issuing Bank, each in its sole and absolute discretion,
that each of the following conditions has been fulfilled:
(a) The Administrative Agent shall have received on the
Agreement Date each of the following, in form and substance and, in the case of
the materials referred to in clauses (i), (ii), (iii), (vi) and (vii), certified
in a manner satisfactory to the Administrative Agent:
(i) a certificate of the Secretary or an Assistant
Secretary of the Borrower, dated the Agreement Date, substantially in
the form of Schedule 2.01(a)(i), to which shall be attached copies of
the resolutions and by-laws referred to in such certificate;
(ii) a certificate of the Secretary or an Assistant
Secretary of the Borrower dated the Agreement Date certifying the names
and true signatures of the officers of the Borrower authorized to sign
this Agreement and the other documents to be delivered hereunder;
(iii) a copy of the certificate of incorporation of the
Borrower and each Significant Subsidiary, certified, as of a recent
date, by the Secretary of State or other appropriate official of the
Borrower's or such Significant Subsidiary's jurisdiction of
incorporation;
(iv) a good standing certificate with respect to the
Borrower and each Significant Subsidiary, issued as of a recent date by
the Secretary of State or other appropriate official of the Borrower's
or such Significant Subsidiary's jurisdiction of
20
incorporation, together with a telegram, if available, from such
Secretary of State or other official, updating the information in such
certificate;
(v) an opinion of counsel for the Borrower, dated the
Agreement Date and addressed to the Administrative Agent and the Banks,
with respect to such matters as the Administrative Agent may reasonably
request;
(vi) an opinion of counsel for the Administrative Agent,
dated the Agreement Date and addressed to the Administrative Agent and
the Banks, with respect to such matters as the Administrative Agent may
reasonably request;
(vii) a copy of, each Governmental Approval and other
consent or approval, and each Governmental Registration, listed on
Schedule 3.03;
(viii) a certificate of the president, a vice president,
the treasurer, an assistant treasurer or chief financial officer of the
Borrower, dated the Agreement Date, setting forth the manner and degree
of detail in which the Borrower will make the calculations required by
paragraph 3 of Schedule 4.08;
(ix) a duly executed RC Note and Bid Rate Note for each
Bank; and
(x) such additional Information regarding the Loan
Documents, the Loans, the Letters of Credit or the business, assets,
Liabilities, financial condition or results of operations of the
Borrower and the Significant Subsidiaries as the Administrative Agent,
the Issuing Bank or any Bank may have reasonably requested.
(b) On the Agreement Date, the following statements shall be
true and the Administrative Agent shall have received a certificate signed by a
duly authorized officer of the Borrower, dated the Agreement Date, stating that:
(i) the representations and warranties contained in
Article III are true and correct in all material respects on and as of
the Agreement Date; and
(ii) no event has occurred and is continuing that
constitutes a Default.
(c) On the Agreement Date, the Administrative Agent shall be
satisfied that (i) all outstanding loans and letters of credit under the
Existing Facilities will be repaid in full, and (ii) all commitments for the
making of loans and issuance of letters of credit under the Existing Facilities
will terminate.
(d) All fees payable on or prior to the Agreement Date,
whether pursuant to Section 1.10 or otherwise, and all amounts payable pursuant
to Section 8.02 for which invoices have been delivered to the Borrower on or
prior to such date, shall have been paid in full or arrangements satisfactory to
the Administrative Agent shall have been made to cause them to be paid in full
concurrently with the disbursement of the proceeds of such Loan or the issuance
of such Letter of Credit.
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Section 2.02 Conditions to Each Loan and Letter of Credit. The
obligation of each Bank to make each Loan requested to be made by it, including
its initial Loan, and the obligation of the Issuing Bank to issue each Letter of
Credit requested to be issued by it (including any request to extend the expiry
date of any Letter of Credit to a date beyond the then current expiry date
thereof or any automatic renewal thereof as provided in Section 1.03(b)), is
subject to the determination of the Issuing Bank or such Bank, as the case may
be, each in its sole and absolute discretion, that each of the following
conditions has been fulfilled:
(a) the Administrative Agent shall have received (i) in the
case of an RC Loan, a notice of borrowing with respect to such Loan in
accordance with the requirements of Section 1.01, (ii) in the case of a Bid Rate
Loan, notice of acceptance of an offer by such Bank to make such Loan in
accordance with the requirements of Section 1.02, or (iii) in the case of a
Letter of Credit, a notice of a request for issuance with respect to such Letter
of Credit in accordance with the requirements of Section 1.03;
(b) each Representation and Warranty shall be true and correct
at and as of the time such Loan is to be made or Letter of Credit issued, both
with and without giving effect to such Loan or the issuance of such Letter of
Credit and all other Loans and Letters of Credit to be made or issued at such
time and to the application of the proceeds thereof;
(c) no Default shall have occurred and be continuing at the
time such Loan is to be made or such Letter of Credit is to be issued or would
result from the making of such Loan or the issuance of such Letter of Credit and
all other Loans and Letters of Credit to be made or issued at such time or from
the application of the proceeds thereof;
(d) in the case of any such Loan, such Loan will not
contravene any Applicable Law applicable to such Bank, including Regulation U;
and
(e) in the case of any such Letter of Credit, the Issuing Bank
shall have received such other instruments and agreements related thereto as the
Issuing Bank shall have reasonably requested.
Except to the extent that the Borrower shall have disclosed in the
applicable notice of borrowing, a request for Bid Rate Loans or notice of
request for Letter of Credit issuance, or in a subsequent notice given to the
Banks or the Issuing Bank, as the case may be, prior to 5:00 p.m. (New York
time) on the Business Day before the requested date for the making of the
requested Loans or the issuance of the requested Letter of Credit that a
condition specified in clause (b) or (c) above will not be fulfilled as of the
requested time for the making of such Loans or the issuance of the requested
Letter of Credit, the Borrower shall be deemed to have made a Representation and
Warranty as of the time of the making of such Loans or the issuance of the
requested Letter of Credit that the conditions specified in such clauses have
been fulfilled as of such time. No such disclosure by the Borrower that a
condition specified in clause (b) or (c) above will not be fulfilled as of the
requested time for the making of the requested Loans or the issuance of the
requested Letter of Credit shall affect the right of each Bank or the Issuing
Bank, as the case may be, to not make the Loans requested to be made by it or to
not issue the Letter of Credit requested to be issued by it if, in such Bank's
or the Issuing Bank's determination, such condition has not been fulfilled at
such time.
22
ARTICLE III
REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent, each Bank and the Issuing
Bank to enter into this Agreement and to make each Loan requested to be made by
it or to issue each Letter of Credit, the Borrower represents and warrants as
follows:
Section 3.01 Organization; Power; Qualification. The Borrower and each
Significant Subsidiary are corporations duly organized, validly existing and in
good standing under the laws of their respective jurisdictions of incorporation,
have the corporate power and authority to own their respective properties and to
carry on their respective businesses as now being and hereafter proposed to be
conducted and are duly qualified and in good standing as foreign corporations,
and are authorized to do business, in all jurisdictions in which the character
of their respective properties or the nature of their respective businesses
requires such qualification or authorization, except for qualifications or
authorizations the lack of which, singly or in the aggregate, has not and will
not have a Materially Adverse Effect on the Borrower and the Consolidated
Subsidiaries taken as a whole.
Section 3.02 Subsidiaries. Schedule 3.02 sets forth, as of the
Agreement Date, all of the Subsidiaries, their jurisdictions of incorporation,
the percentages of the various classes of their Capital Securities owned by the
Borrower or another Subsidiary, which Subsidiaries are Consolidated Subsidiaries
and which Subsidiaries are Significant Subsidiaries. The Borrower or another
Subsidiary, as the case may be, has the unrestricted right to vote, and (subject
to limitations imposed by Applicable Law) to receive dividends and distributions
on, all Capital Securities of the Significant Subsidiaries indicated on Schedule
3.02 as owned by the Borrower or such Subsidiary. All such Capital Securities
have been duly authorized and issued and are fully paid and nonassessable.
Section 3.03 Authorization; Enforceability; Required Consents; Absence
of Conflicts. The Borrower has the power, and has taken all necessary action
(including, if a corporation, any necessary stockholder action) to authorize it,
to execute, deliver and perform in accordance with their respective terms the
Loan Documents and to borrow Loans and have Letters of Credit issued in the
maximum amount available hereunder. This Agreement has been, and each of the
other Loan Documents when delivered to the Administrative Agent will have been,
duly executed and delivered by the Borrower and is, or when so delivered will
be, a legal, valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally. The
execution, delivery and performance in accordance with their respective terms by
the Borrower of the Loan Documents, and each borrowing of Loans and issuance of
Letters of Credit, whether or not in the maximum amount then available
hereunder, do not and (absent any change in any Applicable Law or applicable
Contract) will not (a) require any Governmental Approval or any other consent or
approval, including any consent or approval of the stockholders of the Borrower,
to have been obtained or any Governmental Registration to have been made, by the
Borrower or any Significant Subsidiary, other than Governmental Approvals and
other consents and approvals and Governmental Registrations that have been
obtained or made, as the
23
case may be, are final and not subject to review on appeal or to collateral
attack, are in full force and effect and, in the case of any such required under
any Applicable Law or Contract as in effect on the Agreement Date, are listed on
Schedule 3.03, or (b) violate, conflict with, result in a breach of, constitute
a default under, or result in or require the creation of any Lien upon any
assets of the Borrower or any Significant Subsidiary under, (i) any Contract to
which the Borrower or any Significant Subsidiary is a party or by which the
Borrower or any Significant Subsidiary or any of their respective properties may
be bound or (ii) any Applicable Law.
Section 3.04 Taxes. The Borrower and each Subsidiary have (a) filed all
Tax returns required to have been filed by it under Applicable Law and paid all
Taxes that are due and payable by it or have been assessed against it, except to
the extent the failure to file such Tax returns or pay such Taxes, singly or in
the aggregate, has not and will not have a Materially Adverse Effect on the
Borrower and its Consolidated Subsidiaries taken as a whole and (b) to the
extent required by generally accepted accounting principles, reserved against
all Taxes in excess of $1,000,000 that are payable by it but are not yet due or
that are due and payable by it or have been assessed against it but have not yet
been paid.
Section 3.05 Litigation. Except as set forth on Schedule 3.05, there
are not, in any court or before any arbitrator of any kind or before or by any
governmental or non-governmental body, any actions, suits or proceedings pending
or threatened (nor, to the knowledge of the Borrower and its Subsidiaries, is
there any basis therefor) against or in any other way relating to or affecting
(a) such Borrower or any of its Subsidiaries or any of their respective
businesses or properties or (b) any Loan Document, except actions, suits or
proceedings that (x) could not, singly or in the aggregate, reasonably be
expected (taking into account the likelihood of an adverse determination) to
have a Materially Adverse Effect on the Borrower and its Consolidated
Subsidiaries taken as a whole and (y) if adversely determined, would not, singly
or in the aggregate, have a Materially Adverse Effect on any Loan Document.
Section 3.06 Financial Statements. The financial statements set forth
on Schedule 3.06 fairly present, in accordance with Generally Accepted
Accounting Principles, (i) in the case of the financial statements of New
Century Energies, Inc., the consolidated financial position of New Century
Energies, Inc. and its Consolidated Subsidiaries as at their respective dates
and the consolidated results of operations, retained earnings and, as
applicable, changes in financial position or cash flows of New Century Energies,
Inc. and such Subsidiaries for the respective periods to which such statements
relate, (ii) in the case of the financial statements of Northern States Power
Company, the consolidated financial position of Northern States Power Company
and its Consolidated Subsidiaries as at their respective dates and the
consolidated results of operations, retained earnings and, as applicable,
changes in financial position or cash flows of Northern States Power Company and
such Subsidiaries for the respective periods to which such statements relate,
and (iii) in the case of the pro-forma financial statements of the Borrower, the
consolidated pro-forma financial position of the Borrower and its Consolidated
Subsidiaries (after giving effect to the merger of Northern States Power Company
and New Century Energies, Inc) as at their respective dates and the consolidated
results of operations, retained earnings and, as applicable, changes in
financial position or cash flows of the Borrower and such Subsidiaries for the
respective periods to which such statements relate. Except as disclosed or
reflected in the December 31, 1999 balance sheet referred to in clause (iii) of
the immediately preceding sentence, as at December 31, 1999 neither the Borrower
nor any Subsidiary had any Liability,
24
contingent or otherwise, or any unrealized or anticipated loss, that, singly or
in the aggregate, has had or might have a Materially Adverse Effect on the
Borrower and the Consolidated Subsidiaries taken as a whole.
Section 3.07 No Adverse Change or Event. Except as set forth on
Schedule 3.07, since December 31, 1999, no change in the business, assets,
Liabilities, financial condition or results of operations of the Borrower or any
Subsidiary has occurred, and no event has occurred or failed to occur, that has
had or might have, either alone or in conjunction with all other such changes,
events and failures, a Materially Adverse Effect on (a) the Borrower and the
Consolidated Subsidiaries taken as a whole or (b) any Loan Document. Such an
adverse change may have occurred, and such event may have occurred or failed to
occur, at any particular time notwithstanding the fact that at such time no
Default shall have occurred and be continuing.
Section 3.08 Investment Company Act; Public Utility Holding Company
Act. Neither the Borrower nor any Subsidiary is an "investment company" or a
Person "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940. The Borrower is a "holding company", within the
meaning of PUHCA.
Section 3.09 Compliance with Applicable Law and Contracts. The Borrower
and each Subsidiary is in compliance with all Applicable Law and the terms of
all Contracts to which such Person is a party or by which it or any of its
properties may be bound, except for non-compliances that, either singly or in
the aggregate, would not have a Materially Adverse Effect on (a) the Borrower
and its Consolidated Subsidiaries taken as a whole or (b) any Loan Document.
Section 3.10 Substance Release and Disposal. Except as set forth on
Schedule 3.10, there have been no releases or disposals of hazardous wastes,
environmental contaminants or other substances in quantities or locations that,
singly or in the aggregate, could reasonably be expected to result in the
incurrence by the Borrower or any of its Subsidiaries of remedial obligations
under Applicable Law that could reasonably be expected to have a Materially
Adverse Effect on the Borrower and its Consolidated Subsidiaries taken as a
whole. Except as set forth on Schedule 3.10, neither the Borrower nor any of its
Subsidiaries has received any notice or order advising it that it has or may
have any remedial obligation with respect to any such releases or disposals or
that it is or may be responsible for the costs of any remedial action taken or
to be taken by any other Persons with respect to any such releases or disposals,
which obligation or cost, if fully payable could reasonably be expected to,
singly or in the aggregate, have a Materially Adverse Effect on the Borrower and
its Consolidated Subsidiaries taken as a whole.
Section 3.11 Accuracy of Information. The Information furnished to the
Administrative Agent or the Banks by or on behalf of the Borrower or any
Subsidiary on or prior to the Agreement Date (other than the financial
statements referred to in Section 3.06) does not contain any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements contained therein not misleading in the light of the circumstances
under which they were made.
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Section 3.12 Pari Passu Status. The Loans and other obligations of the
Borrower to the Banks and Issuing Banks under the Loan Documents will at all
times rank at least pari passu in priority of payment with all of the Borrower's
other unsecured indebtedness.
ARTICLE IV
AFFIRMATIVE COVENANTS
From the Agreement Date and until the Repayment Date:
Section 4.01 Preservation of Existence and Properties. The Borrower
shall, and shall cause each Subsidiary to (a) preserve and maintain its
corporate existence and all of its other franchises, licenses, rights and
privileges and (b) preserve, protect and obtain all Intellectual Property, and
preserve and maintain in good repair, working order and condition all other
properties, required for the conduct of its business, except that this Section
4.01 (other than clause (a), in so far as it requires the Borrower or, subject
to Section 5.02, the Significant Subsidiaries, to preserve its corporate
existence) shall not apply in any circumstance where noncompliance, together
with all other noncompliances with this Section 4.01, would not have a
significant possibility of having a Materially Adverse Effect on (x) the
Borrower and the Consolidated Subsidiaries taken as a whole or (y) any Loan
Document.
Section 4.02 Scope of Business. The Borrower shall, and shall cause
each Subsidiary to, engage only in energy-related businesses, functionally
related businesses (as interpreted under PUHCA) or such other businesses as may
be permitted pursuant to an order issued by the Securities and Exchange
Commission pursuant to PUHCA.
Section 4.03 Compliance with Law; Payment of Taxes and Claims. The
Borrower shall, and shall cause each Subsidiary to, (a) comply with Applicable
Law and (b) pay or discharge when due all Taxes and all Liabilities that are or
might become Liens on any of its properties, except that this Section 4.03 shall
not apply in any circumstance where noncompliance, together with all other
noncompliances with this Section 4.03, would not have a significant possibility
of having a Materially Adverse Effect on (x) the Borrower and the Consolidated
Subsidiaries taken as a whole or (y) any Loan Document.
Section 4.04 Preservation of Enforceability. The Borrower shall take
all action and obtain all consents and Governmental Approvals and make all
Governmental Registrations required so that its obligations under the Loan
Documents will at all times be legal, valid and binding and enforceable in
accordance with their respective terms.
Section 4.05 Insurance. The Borrower shall, and shall cause each
Significant Subsidiary to, maintain insurance with responsible insurance
companies against at least such risks and in at least such amounts as is
customarily maintained by similar businesses, or as may be required by
Applicable Law or reasonably requested by the Required Banks.
Section 4.06 Use of Proceeds. The Borrower may use the proceeds of the
Loans and use the Letters of Credit for the Borrower's general corporate
purposes; provided, that so long as there shall be any Indebtedness outstanding
pursuant to the Existing Facilities, the proceeds of Loans shall be used first
for the repayment of such Indebtedness. None of the proceeds of
26
any of the Loans and none of the Letters of Credit shall be used to purchase or
carry, or to reduce or retire or refinance any credit incurred to purchase or
carry, any margin stock (within the meaning of Regulations U and X of the Board
of Governors of the Federal Reserve System) or to extend credit to others for
the purpose of purchasing or carrying any margin stock. If requested by the
Issuing Bank or any Bank, the Borrower shall complete and sign Part I of a copy
of Federal Reserve Form U-1 referred to in Regulation U and deliver such copy to
the Issuing Bank or such Bank.
Section 4.07 Ownership of Significant Subsidiaries. The Borrower shall
at all times (a) directly or indirectly own, beneficially and of record, at
least 51% of each class of issued and outstanding common stock of NRG, provided
that, subsequent to June 30, 2002, the Borrower may own less than 51% of each
class of issued and outstanding common stock of NRG so long as the Leverage
Ratio immediately after any transaction that reduces its ownership interest of
any such class to less than 51% (or if such ownership interest is already less
than 51%, further reduces its ownership interest) is not greater than the
Leverage Ratio immediately prior to such transaction, (b) directly own,
beneficially and of record, 100% of each class of issued and outstanding common
stock of each Existing Utility Subsidiary other than SPS and (c) directly or
indirectly own, beneficially and of record, 100% of each class of issued and
outstanding common stock of each other Significant Subsidiary.
Section 4.08 Delivery of Information. The Borrower shall furnish to
each Bank:
(a) Quarterly Financial Statements. As soon as available and
in any event within 45 days after the close of each of the first three quarterly
accounting periods in each fiscal year of the Borrower, commencing with the
quarterly period ending September 30, 2000, a copy of the Borrower's Quarterly
Report on Form 10-Q for such quarter, as filed with the SEC, which shall contain
a consolidated balance sheet of the Borrower and the Consolidated Subsidiaries
as at the end of such quarterly period and the related consolidated statements
of income, retained earnings and cash flows of the Borrower and the Consolidated
Subsidiaries for such quarterly period and for the elapsed portion of the fiscal
year ended with the last day of such quarterly period, setting forth in each
case in comparative form the figures for the corresponding periods of the
previous fiscal year.
(b) Year-End Financial Statements; Accountants' Certificate.
As soon as available and in any event within 90 days after the end of each
fiscal year of the Borrower, commencing with the fiscal year ending December 31,
2000:
(i) a copy of the Borrower's Annual Report on Form 10-K
for such year, as filed with the SEC, which shall contain a
consolidated balance sheet of the Borrower and the Consolidated
Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income, retained earnings and cash flows of
the Borrower and the Consolidated Subsidiaries for such fiscal year,
setting forth in comparative form the figures as at the end of and for
the previous fiscal year and
(ii) an audit report of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or other
independent certified public accountants of recognized standing
satisfactory to the Required Banks, on such of
27
the financial statements referred to in clause (i) as are consolidated
financial statements, which report shall be in scope and substance
satisfactory to the Required Banks.
(c) Officer's Certificate as to Financial Statements and
Defaults. At the time that financial statements are furnished pursuant to
Section 4.08(a) or (b), a certificate of the president, a vice president, the
treasurer, an assistant treasurer or chief financial officer of the Borrower in
the form of Schedule 4.08.
(d) Reports and Filings. (i) Promptly upon receipt thereof,
copies of all reports, if any, submitted to the Borrower or any Significant
Subsidiary, or the Board of Directors of the Borrower or any Significant
Subsidiary, by its independent certified public accountants, including any
management letter; (ii) as soon as practicable, copies of all such financial
statements and reports as the Borrower or any Significant Subsidiary shall send
to its stockholders (other than, in the case of the Significant Subsidiaries,
those sent solely to the Borrower or its other Subsidiaries) and of all
registration statements and all regular or periodic reports that the Borrower or
any Significant Subsidiary shall file, or may be required to file, with the
Securities and Exchange Commission or any successor commission.
(e) Requested Information. From time to time and promptly upon
request of the Issuing Bank or any Bank, such Information regarding the Loan
Documents, the Loans, the Letters of Credit or the business, assets,
Liabilities, financial condition or results of operations of the Borrower and
the Subsidiaries as the Issuing Bank or such Bank may reasonably request, in
each case in form and substance and certified in a manner reasonably
satisfactory to the Issuing Bank or the requesting Bank.
(f) Notice of Default. Promptly after becoming aware thereof,
notice of any Default.
Section 4.09 Accounting Matters. The Borrower shall and shall cause
each Consolidated Subsidiary to (a) maintain a system of accounting, and keep
such books, records and accounts (which shall be true and complete), as may be
required or necessary to permit (i) the preparation of financial statements
required to be delivered pursuant to Section 4.08(a) and (b) and (ii) the
determination of the compliance of the Borrower with the terms of the Loan
Documents and (b) maintain a closing date of December 31 for each fiscal year.
Section 4.10 Visits, Inspections and Discussions. The Borrower shall,
and shall cause each of its Significant Subsidiaries to, permit, or, in the case
of premises, property, books, records or Persons not within its immediate
control, promptly take such actions as are necessary or desirable in order to
permit, representatives (whether or not officers or employees) of the
Administrative Agent or any Bank, from time to time during normal business
hours, as often as may be reasonably requested, upon reasonable prior notice, to
(a) visit any of its premises or property or any premises or property of others
on which any of its property or books and records (or books and records of
others relating to it) may be located, (b) inspect, and verify the amount,
character and condition of, any of its property, (c) review its books and
records, including management letters prepared by its independent certified
public accountants, and (d) discuss with
28
any Person (including its principal officers and its independent certified
public accountants) its business, assets, Liabilities, financial condition or
results of operation.
ARTICLE V
NEGATIVE COVENANTS
From the Agreement Date and until the Repayment Date:
Section 5.01 Benefit Plans. The Borrower shall not, and shall not
permit any Subsidiary to, directly or indirectly, (a) adopt any amendment to any
Benefit Plan then maintained or contributed to by the Borrower or any of its
ERISA Affiliates for which security would be required under Code Section
401(a)(29), or (b) permit the projected benefit obligation under any Benefit
Plan then maintained or contributed to by the Borrower or any of its ERISA
Affiliates to exceed the fair market value of the assets of such Benefit Plan by
more than $50,000,000, determined as of the most recent actuarial valuation
report for such Benefit Plan in accordance with Statement of Financial
Accounting Standards No. 87.
Section 5.02 Merger or Consolidation. The Borrower shall not, and shall
not permit any Significant Subsidiary to, directly or indirectly, merge or
consolidate with any Person, except that, if after giving effect thereto no
Default would exist, this Section 5.02 shall not apply to (a) any merger or
consolidation of the Borrower with any one or more Persons so long as (i) the
successor entity (if other than the Borrower) assumes, in form reasonably
satisfactory to the Administrative Agent, all of the obligations of the Borrower
under this Agreement and (ii) the successor (whether or not the Borrower) has
long-term unsecured debt ratings issued (and confirmed after giving effect to
such merger) by S&P and ▇▇▇▇▇'▇ of at least BBB- and Baa3 or, if no such ratings
have been issued, commercial paper ratings of at least A-2 and P-2, and (b) any
merger or consolidation of a Significant Subsidiary with another Subsidiary
provided that such Significant Subsidiary shall be the continuing Person.
Section 5.03 Disposition of Assets. The Borrower shall not, and shall
not permit any Significant Subsidiary to, directly or indirectly, sell, lease,
license, transfer or otherwise dispose of any asset or any interest therein,
except that this Section 5.03 shall not apply to (a) any disposition of any
asset or any interest therein in the ordinary course of business, (b) any
disposition of any obsolete or retired property not used or useful in its
business, (c) any disposition of any asset or any interest therein to the
Borrower or a wholly owned Subsidiary, (d) the SPS Generation Assets
Disposition, (e) any disposition of shares of NRG permitted under Section
4.07(a), and (f) any disposition of any asset or any interest therein that,
together with any other assets and interests therein disposed of by the Borrower
and the Significant Subsidiaries during the twelve-month period ending with the
month during which such disposition occurs, other than dispositions to which
this Section 5.03 does not otherwise apply by virtue of clauses (a), (b), (c) or
(d) hereof, represents less than 15% of the consolidated assets of the Borrower
and the Consolidated Subsidiaries, determined on a consolidated basis, as
reflected on the financial statements most recently delivered pursuant to
Section 4.08(a) or (b) prior to such disposition, provided that, all sales,
transfers and other dispositions made before the Termination Date pursuant to
this clause (f) shall not exceed 50% of the consolidated assets of the Borrower
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and the Consolidated Subsidiaries, determined on a consolidated basis, as
reflected in the September 30, 2000 financial statements of the Borrower and the
Consolidated Subsidiaries.
Section 5.04 Transactions with Affiliates. The Borrower shall not, and
shall not permit any Subsidiary to, directly or indirectly, effect any
transaction with any Affiliate that is (a) outside the ordinary course of
business or (b) on a basis less favorable than would at the time be obtainable
for a comparable transaction in arms-length dealing with an unrelated third
party.
Section 5.05 Liens. The Borrower shall not, and shall not permit any
Subsidiary (other than NRG and its Subsidiaries) to, directly or indirectly,
permit to exist, at any time, any Lien upon any of its properties or assets of
any character, whether now owned or hereafter acquired, or upon any income or
profits therefrom, except that this Section 5.05 shall not apply to Permitted
Liens.
Section 5.06 Leverage Ratio. The Borrower shall not permit the Leverage
Ratio to exceed 0.675 to 1.000 at any time.
Section 5.07 Restrictive Agreements. The Borrower shall not, and shall
not permit any Existing Utility Subsidiary to, enter into any agreement after
the date hereof, or amend, supplement, or otherwise modify any agreement
existing on the date hereof, that imposes any restriction on the ability of any
Existing Utility Subsidiary to make payments, directly or indirectly, to its
shareholders by way of dividends, advances, repayment of loans or intercompany
charges, expenses or accruals or other returns on investments that is more
restrictive than any such restriction applicable to such Existing Utility
Subsidiary on the date hereof.
ARTICLE VI
DEFAULT
Section 6.01 Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary, or within or without the control of the Borrower or
any Subsidiary, or be effected by operation of law or pursuant to any judgment
or order of any court or any order, rule or regulation of any governmental or
non-governmental body:
(a) Any payment of principal of any Loan or any reimbursement
of any Drawing shall not be made when and as due (whether at maturity, by reason
of notice of prepayment or acceleration or otherwise) and in accordance with the
terms of this Agreement;
(b) Any payment of interest on any Loan or any payment of any
fees or other amounts due hereunder shall not be made when and as due and in
accordance with the terms of this Agreement and such failure shall continue for
three Business Days;
(c) (i) Any Representation and Warranty shall at any time
prove to have been incorrect or misleading in any material respect when made;
(ii) any financial statement furnished pursuant to Section 4.08(a) or (b) shall
not fairly present, in accordance with Generally Accepted
30
Accounting Principles (except for changes therein or departures therefrom that
are described in the certificate or report accompanying such statements and that
have been approved in writing by the Borrower's then current independent
certified public accountants), the consolidated financial position of the
Borrower and the Consolidated Subsidiaries as at their respective dates and the
consolidated results of operations, retained earnings and cash flows of the
Borrower and such Subsidiaries for the respective periods to which such
statements relate; or (iii) any Information furnished to the Administrative
Agent or Banks by or on behalf of the Borrower or any Subsidiary after the
Agreement Date (other than the financial statements referred to in clause (ii))
shall contain any untrue statement of a material fact or omits a material fact
necessary in order to make the statements contained therein not misleading in
the light of the circumstances under which they were made;
(d) The Borrower shall default in the performance or
observance of:
(i) any term, covenant, condition or agreement contained
in Section 4.01 (insofar as such Section requires the preservation of
the corporate existence of the Borrower or any Significant Subsidiary),
4.04, 4.06, 4.07, 4.08(e), 4.08(f), 4.10, 5.01(b) or 5.02 through 5.07;
or
(ii) any term, covenant, condition or agreement contained
in this Agreement (other than a term, covenant, condition or agreement
a default in the performance or observance of which is elsewhere in
this Section specifically dealt with) and, if capable of being
remedied, such default shall continue unremedied for a period of 30
days after written notice thereof shall have been given to the Borrower
by the Administrative Agent or any Bank;
(e) (i) The Borrower or any Subsidiary shall fail to pay, in
accordance with its terms and when due and payable, any of the principal of or
interest on any of its Indebtedness (other than the Loans) having a then
outstanding principal amount in excess of $50,000,000, (ii) the maturity of any
such Indebtedness shall, in whole or in part, have been accelerated, or any such
Indebtedness shall, in whole or in part, have been required to be prepaid prior
to the stated maturity thereof, in accordance with the provisions of any
Contract evidencing, providing for the creation of or concerning such
Indebtedness, or (iii) (A) any event shall have occurred and be continuing that
permits (or, with the passage of time or the giving of notice or both, would
permit) any holder or holders of such Indebtedness, any trustee or agent acting
on behalf of such holder or holders or any other Person so to accelerate such
maturity or require any such prepayment and (B) if the Contract evidencing,
providing for the creation of or concerning such Indebtedness provides for a
cure period for such event, such event shall not be cured prior to the end of
such cure period;
(f) (i) The Borrower or any Significant Subsidiary shall (A)
commence a voluntary case under the Federal bankruptcy laws (as now or hereafter
in effect), (B) file a petition seeking to take advantage of any other laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding
up or composition or adjustment of debts, (C) consent to or fail to contest in a
timely and appropriate manner any petition filed against it in an involuntary
case under such bankruptcy laws or other laws, (D) apply for, or consent to, or
fail to contest in a timely and appropriate manner, the appointment of, or the
taking of possession by, a receiver,
31
custodian, trustee, liquidator or the like of itself or of a substantial part of
its assets, domestic or foreign, (E) admit in writing its inability to pay, or
generally not be paying, its debts (other than those that are the subject of
bona fide disputes) as they become due, (F) make a general assignment for the
benefit of creditors, or (G) take any corporate action for the purpose of
effecting any of the foregoing;
(ii) (A) A case or other proceeding shall be commenced
against the Borrower or any Significant Subsidiary seeking (1) relief under the
Federal bankruptcy laws (as now or hereafter in effect) or under any other laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding
up or composition or adjustment of debts, or (2) the appointment of a trustee,
receiver, custodian, liquidator or the like of the Borrower or any Significant
Subsidiary, or of all or any substantial part of the assets, domestic or
foreign, of the Borrower or any Significant Subsidiary, and such case or
proceeding shall continue undismissed and unstayed for a period of 60 days, or
(B) an order granting the relief requested in such case or proceeding against
the Borrower or any Significant Subsidiary (including an order for relief under
such Federal bankruptcy laws) shall be entered;
(g) A judgment or order shall be entered against the Borrower
or any Significant Subsidiary by any court, and (i) in the case of a judgment or
order for the payment of money, either (A) such judgment or order shall continue
undischarged and unstayed for a period of 30 days in which the aggregate amount
of all such judgments and orders exceeds $50,000,000 or (B) enforcement
proceedings shall have been commenced upon such judgment or order, and, in the
case of both (A) and (B), such judgment or order shall, in the reasonable
judgment of the Required Banks, not be covered by insurance, and (ii) in the
case of any judgment or order for other than the payment of money, such judgment
or order, in the reasonable judgment of the Required Banks, together with all
other such judgments or orders, has a significant possibility of having a
Materially Adverse Effect on the Borrower and the Consolidated Subsidiaries
taken as a whole;
(h) (i) any Termination Event shall occur with respect to any
Benefit Plan or Multiemployer Benefit Plan of the Borrower, any Subsidiary or
any of their respective ERISA Affiliates, (ii) any Accumulated Funding
Deficiency, whether or not waived, shall exist with respect to any such Benefit
Plan, (iii) any Person shall engage in any Prohibited Transaction involving any
such Benefit Plan, (iv) the Borrower, any Subsidiary or any of their respective
ERISA Affiliates shall be in "default" (as defined in ERISA Section 4219(c)(5))
with respect to payments owing to any Multiemployer Benefit Plan as a result of
such Person's complete or partial withdrawal (as described in ERISA Section 4203
or 4205) therefrom, (v) the Borrower, any Subsidiary or any of their respective
ERISA Affiliates shall fail to pay when due an amount that is payable by it to
the PBGC or to any such Benefit Plan or Multiemployer Benefit Plan under Title
IV of ERISA, (vi) a proceeding shall be instituted by a fiduciary of any such
Multiemployer Benefit Plan against the Borrower, any Subsidiary or any of their
respective ERISA Affiliates to enforce ERISA Section 515 and such proceeding
shall not have been dismissed within 30 days thereafter, or (vii) any other
event or condition shall occur or exist with respect to any such Benefit Plan or
Multiemployer Benefit Plan, except that no event or condition referred to in
clauses (i) through (vii) shall constitute an Event of Default if it, together
with all other such events or conditions at the time existing, has not
subjected, and in the reasonable determination of the Required Banks will not
subject, the Borrower or any Subsidiary
32
to any Liability that, alone or in the aggregate with all such Liabilities for
all such Persons, exceeds $50,000,000;
(i) The Borrower or any of its Affiliates asserts, or the
Borrower or any of its Affiliates or any other Person institutes any proceedings
seeking to establish, that any provision of the Loan Documents is invalid, not
binding or unenforceable; or
(j) (i) Any entity, person (within the meaning of Section
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"))
or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act) that theretofore was beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of less than 30% of the Borrower's Voting Stock shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the SEC under
the Exchange Act), directly or indirectly, of Voting Stock of the Borrower (or
securities convertible into such Voting Stock) representing 30% or more of the
combined voting power of all Voting Stock of the Borrower; or (ii) during any
period of up to 24 consecutive months commencing after the Agreement Date,
individuals who at the beginning of such 24-month period were directors of the
Borrower shall cease for any reason to constitute a majority of the board of
directors of the Borrower, provided that any person becoming a director
subsequent to the date hereof, whose election, or nomination for election by the
Borrower's shareholders, was approved by a vote of at least a majority of the
directors of the board of directors of the Borrower as comprised as of the
Agreement Date (other than the election or nomination of an individual whose
initial assumption of office is in connection with an actual or threatened
election contest relating to the election of the directors of the Borrower)
shall be, for purposes of this Section 6.01(j), considered as though such person
were a member of the board as of the date hereof.
Section 6.02 Remedies upon Event of Default. During the continuance of
any Event of Default (other than one specified in Section 6.01(f)) and in every
such event, the Administrative Agent, upon notice to the Borrower, may do any or
all of the following: (a) declare, in whole or, from time to time, in part, the
principal of and interest on the Loans and the Notes and all other amounts owing
under the Loan Documents to be, and the Loans and the Notes and all such other
amounts shall thereupon and to that extent become, due and payable, (b) demand
that the Borrower deliver cash collateral to the Administrative Agent in an
amount up to the aggregate amount of Contingent Reimbursement Obligations then
outstanding to be held in accordance with Section 8.17 and such amount shall
thereupon and to that extent become due and payable to the Administrative Agent
and (c) terminate, in whole or, from time to time, in part, the Commitments.
Upon the occurrence of an Event of Default specified in Section 6.01(f),
automatically and without any notice to the Borrower, (a) the principal of and
interest on the Loans and the Notes and all other amounts owing under the Loan
Documents shall be due and payable, (b) the Commitments shall terminate and (c)
an amount equal to the aggregate amount of Contingent Reimbursement Obligations
then outstanding shall be due and payable to the Administrative Agent to be held
in accordance with Section 8.17. Presentment, demand, protest or notice of any
kind (other than the notice provided for in the first sentence of this Section
6.02) are hereby expressly waived.
33
ARTICLE VII
THE ADMINISTRATIVE AGENT
Section 7.01 Appointment and Powers. Each Bank hereby irrevocably
appoints and authorizes The Bank of New York, and The Bank of New York hereby
agrees, to act as the agent for such Bank under the Loan Documents with such
powers as are delegated to the Administrative Agent by the terms thereof,
together with such other powers as are reasonably incidental thereto. The
Administrative Agent's duties shall be purely ministerial and it shall have no
duties or responsibilities except those expressly set forth in the Loan
Documents. The Administrative Agent shall not be required under any
circumstances to take any action that, in its judgment, (a) is contrary to any
provision of the Loan Documents or Applicable Law or (b) would expose it to any
Liability or expense against which it has not been indemnified to its
satisfaction. The Administrative Agent shall not, by reason of its serving as
the Administrative Agent, be a trustee or other fiduciary for any Bank.
Section 7.02 Limitation on Administrative Agent's Liability. Neither
the Administrative Agent nor any of its directors, officers, employees or agents
shall be liable or responsible for any action taken or omitted to be taken by it
or them under or in connection with the Loan Documents, except for its or their
own gross negligence, willful misconduct or knowing violations of law. The
Administrative Agent shall not be responsible to any Bank for (a) any recitals,
statements, representations or warranties contained in the Loan Documents or in
any certificate or other document referred to or provided for in, or received by
any of the Banks under, the Loan Documents, (b) the validity, effectiveness or
enforceability of the Loan Documents or any such certificate or other document
or (c) any failure by the Borrower to perform any of its obligations under the
Loan Documents. The Administrative Agent may employ agents and attorneys-in-fact
and shall not be responsible for the negligence or misconduct of any such agents
or attorneys-in-fact so long as the Administrative Agent was not grossly
negligent in selecting or directing such agents or attorneys-in-fact. The
Administrative Agent shall be entitled to rely upon any certification, notice or
other communication (including any thereof by telephone, telex, telecopier,
telegram or cable) believed by it to be genuine and correct and to have been
signed or given by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel, independent accountants and other experts
selected by the Administrative Agent. As to any matters not expressly provided
for by the Loan Documents, the Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under the Loan Documents in
accordance with instructions signed by the Required Banks, and such instructions
of the Required Banks and any action taken or failure to act pursuant thereto
shall be binding on all of the Banks.
Section 7.03 Defaults. The Administrative Agent shall not be deemed to
have knowledge of the occurrence of a Default (other than the non-payment to it
of principal of or interest on Loans or fees) unless the Administrative Agent
has received notice from a Bank or the Borrower specifying such Default and
stating that such notice is a "Notice of Default". In the event that the
Administrative Agent has knowledge of such a non-payment or receives such a
notice of the occurrence of a Default, the Administrative Agent shall give
prompt notice thereof to the Banks. In the event of any Default, the
Administrative Agent shall (a) in the case of a Default that constitutes an
Event of Default, take any of the actions referred to in clauses (a), (b)
34
and (c) of the first sentence of Section 6.02 if so directed by the Required
Banks and (b) in the case of any Default, take such other action with respect to
such Default as shall be reasonably directed by the Required Banks. Unless and
until the Administrative Agent shall have received such directions, in the event
of any Default, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable in the best interests of the Banks.
Section 7.04 Rights as a Bank. Each Person acting as the Administrative
Agent that is also a Bank shall, in its capacity as a Bank, have the same rights
and powers under the Loan Documents as any other Bank and may exercise the same
as though it were not acting as the Administrative Agent, and the term "Bank" or
"Banks" shall include such Person in its individual capacity. Each Person acting
as the Administrative Agent (whether or not such Person is a Bank) and its
Affiliates may (without having to account therefor to any Bank) accept deposits
from, lend money to and generally engage in any kind of banking, trust or other
business with the Borrower and its Affiliates as if it were not acting as the
Administrative Agent, and such Person and its Affiliates may accept fees and
other consideration from the Borrower and its Affiliates for services in
connection with the Loan Documents or otherwise without having to account for
the same to the Banks.
Section 7.05 Indemnification. The Banks agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower hereunder),
ratably on the basis of the respective principal amounts of the Loans
outstanding made by the Banks (or, if no Loans are at the time outstanding,
ratably on the basis of their respective Commitments), for any and all
Liabilities, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever that may be imposed
on, incurred by or asserted against the Administrative Agent (including the
costs and expenses that the Borrower is obligated to pay hereunder) in any way
relating to or arising out of the Loan Documents or any other documents
contemplated thereby or referred to therein or the transactions contemplated
thereby or the enforcement of any of the terms thereof or of any such other
documents, provided that no Bank shall be liable for any of the foregoing to the
extent they arise from gross negligence, willful misconduct or knowing
violations of law by the Administrative Agent.
Section 7.06 Non-Reliance on Administrative Agent and Other Banks. Each
Bank agrees that it has made and will continue to make, independently and
without reliance on the Administrative Agent or any other Bank, and based on
such documents and information as it deems appropriate, its own credit analysis
of the Borrower and its own decision to enter into the Loan Documents and to
take or refrain from taking any action in connection therewith. The
Administrative Agent shall not be required to keep itself informed as to the
performance or observance by the Borrower of the Loan Documents or any other
document referred to or provided for therein or to inspect the properties or
books of the Borrower or any Subsidiary. Except for notices, reports and other
documents and information expressly required to be furnished to the Banks by the
Administrative Agent under the Loan Documents, the Administrative Agent shall
have no obligation to provide any Bank with any information concerning the
business, status or condition of the Borrower or any Subsidiary or the Loan
Documents that may come into the possession of the Administrative Agent or any
of its Affiliates.
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Section 7.07 Resignation of the Administrative Agent. The
Administrative Agent may at any time give notice of its resignation to the Banks
and the Borrower. Upon receipt of any such notice of resignation, the Required
Banks may, after consultation with the Borrower, appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Required Banks and shall have accepted such appointment within
30 days after the retiring Administrative Agent's giving of notice of
resignation, then the retiring Administrative Agent may, on behalf of the Banks
and after consultation with the Borrower, appoint a successor Administrative
Agent. Upon the acceptance by any Person of its appointment as a successor
Administrative Agent, such Person shall thereupon succeed to and become vested
with all the rights, powers, privileges, duties and obligations of the retiring
Administrative Agent and the retiring Administrative Agent shall be discharged
from its duties and obligations as Administrative Agent under the Loan
Documents. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Article VI shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Administrative Agent.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Notices and Deliveries. (a) Manner of Delivery. All
notices, communications and materials (including all Information) to be given or
delivered pursuant to the Loan Documents shall be given or delivered in writing
(which shall include telecopy transmissions) at the following respective
addresses and telecopier numbers and to the attention of the following
individuals or departments:
(i) if to the Borrower, to it at:
Xcel Energy Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President and Treasurer
with a copy to:
Xcel Energy Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇
Manager, Cash & Banking
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(ii) if to the Administrative Agent, to it at:
The Bank of New York
Utilities Division
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Assistant Vice President
with a copy to:
BNY Capital Markets, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ , ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
(iii) if to any Bank (including in its capacity as Issuing
Bank), to it at the address or telecopier number and to the attention
of the individual or department, set forth below such Bank's name under
the heading "Notice Address" on Annex A or, in the case of a Bank that
becomes a Bank pursuant to an assignment, set forth under the heading
"Notice Address" in the Assignment and Acceptance given to the Borrower
and the Administrative Agent with respect to such assignment;
or at such other address or telecopier or telephone number or to the attention
of such other individual or department as the party to which such information
pertains may hereafter specify for the purpose in a notice given to (x) if the
party to which such information pertains is the Borrower, the Administrative
Agent and each Bank, (y) if the party to which such information pertains is the
Administrative Agent, the Borrower and each Bank and (z) if the party to which
such information pertains is a Bank, the Borrower and the Administrative Agent.
(b) Effectiveness. Each notice and communication and any
material to be given or delivered pursuant to the Loan Documents shall be deemed
so given or delivered when delivered or received at the appropriate office or
number to the attention of the appropriate individual or department to the
Administrative Agent or any Bank pursuant to Article I shall not be deemed given
or delivered until received by the officer of the Administrative Agent or such
Bank responsible, at the time, for the administration of this Agreement.
Section 8.02 Expenses; Indemnification. Whether or not any Loans are
made, or any Letter of Credit is issued, hereunder, the Borrower shall:
37
(a) pay or reimburse the Administrative Agent, the Issuing
Bank, BNYCMI and each Bank for all transfer, documentary, stamp and similar
taxes, and all recording and filing fees and taxes, payable in connection with,
arising out of, or in any way related to, the execution, delivery and
performance of the Loan Documents or the making of the Loans or the issuance of
any Letters of Credit;
(b) pay or reimburse the Administrative Agent and BNYCMI for
all reasonable costs and expenses (including fees and disbursements of legal
counsel, appraisers, accountants and other experts employed or retained by the
Administrative Agent) incurred by the Administrative Agent or BNYCMI, as the
case may be, in connection with, arising out of, or in any way related to (i)
the negotiation, preparation, execution and delivery of (A) the Loan Documents
and (B) whether or not executed, any waiver, amendment or consent thereunder or
thereto, (ii) the administration of and any operations under the Loan Documents,
(iii) consulting with respect to any matter in any way arising out of, related
to, or connected with, the Loan Documents, including (A) the protection,
preservation, exercise or enforcement of any of the rights of the Administrative
Agent, the Issuing Bank or the Banks under or related to the Loan Documents or
(B) the performance of any of the obligations of the Administrative Agent, the
Issuing Bank or the Banks under or related to the Loan Documents or (iv)
protecting, preserving, exercising or enforcing any of the rights of the
Administrative Agent, the Issuing Bank or the Banks under or related to the Loan
Documents;
(c) pay or reimburse each Bank for all reasonable costs and
expenses (including fees and disbursements of legal counsel (including, without
limitation, allocated costs of in-house legal counsel) and other experts
employed or retained by such Bank) incurred by such Bank in connection with,
arising out of, or in any way related to (i) consulting during a Default with
respect to (A) the protection, preservation, exercise or enforcement of any of
its rights under or related to the Loan Documents or (B) the performance of any
of its obligations under or related to the Loan Documents or (ii) protecting,
preserving, exercising or enforcing during a Default any of its rights under or
related to the Loan Documents; and
(d) indemnify and hold each Indemnified Person harmless from
and against all losses (including judgments, penalties and fines) suffered, and
pay or reimburse each Indemnified Person for all costs and expenses (including
reasonable fees and disbursements of legal counsel and other experts employed or
retained by such Indemnified Person) incurred, by such Indemnified Person in
connection with, arising out of, or in any way related to (i) any Loan Document
Related Claim (whether asserted by such Indemnified Person or the Borrower or
any other Person), including the prosecution or defense thereof and any
litigation or proceeding with respect thereto (whether or not, in the case of
any such litigation or proceeding, such Indemnified Person is a party thereto),
or (ii) any investigation, governmental or otherwise, arising out of, related
to, or in any way connected with, the Loan Documents or the relationships
established thereunder, except that the foregoing indemnity shall not be
applicable to any loss suffered by any Indemnified Person to the extent such
loss is determined by a judgment of a court that is binding on the Borrower and
such Indemnified Person, final and not subject to review on appeal, to be the
result of acts or omissions on the part of such Indemnified Person constituting
gross negligence or willful misconduct.
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Section 8.03 Amounts Payable Due upon Request for Payment. All amounts
payable by the Borrower under Section 8.02 and under the other provisions of the
Loan Documents shall, except as otherwise expressly provided, be immediately due
upon request for the payment thereof.
Section 8.04 Rights Cumulative. Each of the rights and remedies of the
Administrative Agent, the Issuing Bank and the Banks under the Loan Documents
shall be in addition to all of their other rights and remedies under the Loan
Documents and Applicable Law, and nothing in the Loan Documents shall be
construed as limiting any such rights or remedies.
Section 8.05 Disclosures. The Administrative Agent, the Issuing Bank
and the Banks agree that it will use its reasonable best efforts to keep
confidential and to cause any of their respective representatives to keep
confidential any non-public information from time to time supplied to it under
any Loan Document; provided, however, that nothing herein shall affect the
disclosure of any such information to (i) the extent the Administrative Agent,
Issuing Bank or Bank in good faith believes is required by statute, rule,
regulation or judicial process, (ii) counsel for the Administrative Agent,
Issuing Bank or Bank or to its accountants, (iii) bank examiners or auditors or
comparable Persons, (iv) any Affiliate of the Administrative Agent, Issuing Bank
or Bank, (v) any other Bank, or any assignee, transferee or participant, or any
potential assignee, transferee or participant of all or any portion of any
Bank's rights under this Agreement who is notified of the confidential nature of
the information and agrees to be bound by this provision or provisions
reasonably comparable hereto, or (vi) any other Person in connection with any
litigation to which any one or more of the Banks is a party; and provided
further that neither the Administrative Agent, Issuing Bank or Bank shall have
any obligation under this Section 8.05 to the extent any such information
becomes available on a non-confidential basis from a source other than the
Borrower or its Subsidiaries or that any information becomes publicly available
other than by a breach of this Section 8.05.
Section 8.06 Amendments; Waivers. Any term, covenant, agreement or
condition of the Loan Documents may be amended, and any right under the Loan
Documents may be waived, if, but only if, such amendment or waiver is in writing
and is signed by the Required Banks and, if the rights and duties of the
Administrative Agent or the Issuing Bank are affected thereby, by the
Administrative Agent or the Issuing Bank, as the case may be, and, in the case
of an amendment, by the Borrower; provided, however, that no amendment or waiver
shall be effective, unless in writing and signed by each Bank affected thereby,
to the extent it (i) increases the amount of such Bank's Commitment, (ii)
extends the scheduled termination date of such Bank's Commitment or extends the
expiration date of any Letter of Credit to a date after such scheduled
termination date, (iii) reduces the principal of or the rate of interest on such
Bank's Loans or Letter of Credit Participations or the fees payable to such Bank
hereunder, (iv) extends the scheduled payment date for any payment of principal
of or interest on such Bank's Loans, Letter of Credit Participations or the fees
payable to such Bank hereunder or (v) amends the last sentence of Section
1.01(c), Section 1.14, Section 1.15, Section 1.21, Section 1.22, this Section
8.06 or any provision of this Agreement requiring the consent or other action of
all of the Banks. Unless otherwise expressly provided, (x) a waiver of any right
under the Loan Documents shall be effective only in the specific instance and
for the specific purpose for which given and (y) an amendment to, or waiver
under, a provision of the Loan Documents shall not be deemed to amend, or waive
rights under, any other provisions of the Loan Documents. No election not to
39
exercise, failure to exercise or delay in exercising any right, nor any course
of dealing or performance, shall operate as a waiver of any right of the
Administrative Agent, the Issuing Bank or any Bank under the Loan Documents or
Applicable Law, nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right of the Administrative Agent, the Issuing Bank or any Bank under the Loan
Documents or Applicable Law.
Section 8.07 Set-Off. The Administrative Agent, the Issuing Bank and
each Bank is hereby authorized by the Borrower, at any time and from time to
time, without notice, (a) during any Event of Default, to set off against, and
to appropriate and apply to the payment of, the Liabilities of the Borrower
under the Loan Documents (whether owing to such Person or to any other Person
that is the Administrative Agent, the Issuing Bank or a Bank and whether matured
or unmatured, fixed or contingent or liquidated or unliquidated and including
the amounts to which such Bank is entitled with respect to its Letter of Credit
Participations) any and all Liabilities owing by such Person or any of its
Affiliates to the Borrower (whether payable in Dollars or any other currency,
whether matured or unmatured and, in the case of Liabilities that are deposits,
whether general or special, time or demand and however evidenced and whether
maintained at a branch or office located within or without the United States)
and (b) during any Default, to suspend the payment and performance of such
Liabilities owing by such Person or its Affiliates in an amount equal to the
amount then due and payable under the Loan Documents and, in the case of
Liabilities that are deposits, to return as unpaid for insufficient funds any
and all checks and other items drawn against such deposits.
Section 8.08 Assignments and Participations. (a) Any Bank may assign to
one or more Persons (other than a natural Person) all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Commitment, Letter of Credit Participations and Loans); provided that (i) each
of the Administrative Agent, the Issuing Bank and, unless such assignment is to
an Affiliate of such Bank or an Event of Default pursuant to Section 6.01(f)
hereof has occurred and is continuing, the Borrower shall consent to such
assignment (each such consent not to be unreasonably withheld or delayed), (ii)
except in the case of an assignment of the entire remaining amount of the
assigning Bank's Commitment, Letter of Credit Participations and the RC Loans at
the time owing to it, the amount of the Commitment (which for this purpose
includes Letter of Credit Participations and RC Loans outstanding thereunder) of
the assigning Bank subject to each such assignment (determined as of the date
the Assignment and Acceptance with respect to such assignment is delivered to
the Administrative Agent) shall not be less than $5,000,000 unless each of the
Administrative Agent, the Issuing Bank and, so long as no Event of Default
pursuant to Section 6.01(f) hereof has occurred and is continuing, the Borrower
otherwise consent (each such consent not to be unreasonably withheld or
delayed), (iii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Bank's rights and obligations under this
Agreement with respect to the RC Loans, Letter of Credit Participations and
Commitment assigned, and (iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500. Subject to acceptance and recording
thereof by the Administrative Agent pursuant to paragraph (b) of this Section
8.08, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Bank under this Agreement, and the assigning Bank thereunder
shall,
40
to the extent of the interest assigned by such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of a
Assignment and Acceptance covering all of the assigning Bank's rights and
obligations under this Agreement, such Bank shall cease to be a party hereto).
Any assignment or transfer by a Bank of rights or obligations under this
Agreement that does not comply with this paragraph shall be treated for purposes
of this Agreement as a sale by such Bank of a participation in such rights and
obligations in accordance with paragraph (c) of this Section 8.08.
(b) The Administrative Agent, acting solely for this purpose
as an agent of the Borrower, shall maintain at one of its offices in New York
City a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Banks, and the Commitments of,
amount of Letter of Credit Participations held by, and principal amount of the
Loans owing to, each Bank pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the Borrower,
the Administrative Agent and the Banks may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Bank hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Bank, at any
reasonable time and from time to time upon reasonable prior notice.
(c) Any Bank may, without the consent of, or notice to, the
Borrower or the Administrative Agent, sell participations to one or more banks
or other entities (a "Participant") in all or a portion of such Bank's rights
and/or obligations under this Agreement (including all or a portion of its
Commitment, Letter of Credit Participations and/or the Loans owing to it);
provided that (i) such Bank's obligations under this Agreement shall remain
unchanged, (ii) such Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent and the other Banks shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and obligations
under this Agreement. Any agreement or instrument pursuant to which a Bank sells
such a participation shall provide that such Bank shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Bank will not, without the consent of the Participant, agree
to any amendment, modification or waiver described in Section 8.06(a) that
affects such Participant. Subject to paragraph (d) of this Section 8.08, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 1.14, 1.15 and 1.19 to the same extent as if it were a Bank and had
acquired its interest by assignment pursuant to paragraph (a) of this Section
8.08. To the extent permitted by law, each Participant also shall be entitled to
the benefits of Section 8.07 as though it were a Bank, provided such Participant
agrees to be subject to Section 1.22 as though it were a Bank. A Participant
shall not be entitled to receive any greater payment under Sections 1.15 or 1.19
than the applicable Bank would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Non-US Bank if it were a Bank shall not be entitled
to the benefits of Section 1.19 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 1.19(a)(iv) as though it were a
Bank.
41
(d) Any Bank may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Bank, including without limitation any pledge or assignment
to secure obligations to a Federal Reserve Bank; provided that no such pledge or
assignment of a security interest shall release a Bank from any of its
obligations hereunder or substitute any such pledgee or assignee for such Bank
as a party hereto.
(e) Notwithstanding anything to the contrary contained herein,
any Bank (a "Granting Bank") may grant to one special purpose funding vehicle
(an "SPC") sponsored by such Granting Bank, as identified as such in writing
from time to time to the Borrower and the Administrative Agent, the option to
provide to the Borrower all or any part of any Loan that such Granting Bank
would otherwise be obligated to make to the Borrower pursuant to the terms
hereof; provided that (i) nothing herein shall constitute a commitment to make
any Loan by any SPC and (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting Bank shall
be obligated to make such Loan pursuant to the terms hereof. The making of a
Loan by an SPC hereunder shall utilize the Commitment of such Granting Bank to
the same extent as if such Loan were made by such Granting Bank. Any SPC that
makes a Loan shall (i) have in regard to such Loan all of the rights
(exercisable, however, only through its Granting Bank as its agent) that such
Granting Bank would have had if it had made such Loan directly and (ii) comply
with this Agreement in regard to such Loan on the same terms as any other party
hereto; provided that (A) the Granting Bank's Commitment shall remain with such
Granting Bank and (B) all monetary obligations of an SPC hereunder in respect of
the Loans it provides shall remain with its Granting Bank to the extent at any
time that such SPC elects not to or otherwise fails to perform or pay any such
obligation. Each party hereto hereby agrees that no SPC shall be liable for any
payment under this Agreement for which a Bank would otherwise be liable so long
as, and to the extent, its sponsoring Granting Bank makes such payment.
Notwithstanding any Loans that may be provided by an SPC hereunder, the
Administrative Agent and Borrower shall be entitled to continue to communicate
and deal solely and directly with the Granting Bank in connection with this
Agreement in respect of such Loans. Each SPC that is identified by its Granting
Bank as having been granted an option hereunder shall be deemed to have
confirmed (and the Borrower and the Administrative Agent may require a written
acknowledgment of such confirmation signed by any such SPC) to the Borrower and
the Administrative Agent that (a) it has received a copy of each Loan Document,
together with copies of the financial statements heretofore provided to Banks
under the terms of this Agreement and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into this Agreement; (b) agrees that it will independently and without reliance
upon the Administrative Agent, its Granting Bank or any other Bank, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
any Loan Document; (c) appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under any Loan Document as are delegated to the Administrative Agent by the
terms thereof, together with such powers and discretion as are reasonably
incidental thereto; (d) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of any Loan Document are
required to be performed by it as a Bank, subject to the terms of this Section;
and (e) appoints its Granting Bank, or a specified branch or affiliate thereof,
as its agent and attorney in fact, and grants to its Granting Bank an
irrevocable power of attorney, to receive payments made for the benefit such SPC
under this Agreement, to deliver and receive all communications and notices
under the Loan Documents
42
and to exercise on such SPC's behalf all rights to vote and to grant and make
approvals, waivers, consents or amendments to or under the Loan Documents. Any
document executed by an SPC's Granting Bank on such SPC's behalf in connection
with the Loan Documents shall be binding on such SPC. The Borrower, all the
Banks and the Administrative Agent each hereby agrees (which agreement shall
survive the termination of this Agreement) that, prior to the date that is one
year and one day after the payment in full of all outstanding commercial paper
or other senior indebtedness of any SPC, it will not institute against, or join
any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or similar
proceedings under the laws of the United States or any State thereof.
Notwithstanding anything to the contrary contained in Section 8.08(a), any SPC
may, with notice to, but without the prior written consent of, the Borrower and
the Administrative Agent, and without the payment of any processing and
recordation fee therefor, assign all or a portion of its interests in any Loans
to its Granting Bank. Any SPC may disclose on a confidential basis any
non-public information relating to its Loans to any rating agency, commercial
paper dealer or provider of liquidity and/or credit facilities to such SPC.
Nothing in this Section that would affect the rights or obligations of an SPC
may be amended without the written consent of any SPC that has Loans outstanding
at the time of such amendment.
Section 8.09 Governing Law. The rights and duties of the Borrower, the
Administrative Agent, the Syndication Agents, the Issuing Bank and the Banks
under this Agreement and the Notes (including matters relating to the Maximum
Permissible Rate), and the other Loan Documents shall, pursuant to New York
General Obligations Law Section 5-1401, be governed by the law of the State of
New York.
Section 8.10 Judicial Proceedings; Waiver of Jury Trial. Any judicial
proceeding brought against the Borrower with respect to any Loan Document
Related Claim may be brought in any court of competent jurisdiction in the City
of New York, and, by execution and delivery of this Agreement, the Borrower (a)
accepts, generally and unconditionally, the nonexclusive jurisdiction of such
courts and any related appellate court and irrevocably agrees to be bound by any
judgment rendered thereby in connection with any Loan Document Related Claim and
(b) irrevocably waives any objection it may now or hereafter have as to the
venue of any such proceeding brought in such a court or that such a court is an
inconvenient forum. The Borrower hereby waives personal service of process and
consents that service of process upon it may be made by certified or registered
mail, return receipt requested, at its address specified or determined in
accordance with the provisions of Section 8.01(b), and service so made shall be
deemed completed on the third Business Day after such service is deposited in
the mail. Nothing herein shall affect the right of the Administrative Agent, the
Issuing Bank, any Bank or any other Indemnified Person to serve process in any
other manner permitted by law or shall limit the right of the Administrative
Agent, the Issuing Bank, any Bank or any other Indemnified Person to bring
proceedings against the Borrower in the courts of any other jurisdiction. Any
judicial proceeding by the Borrower against the Administrative Agent, the
Issuing Bank or any Bank involving any Loan Document Related Claim shall be
brought only in a court located in the City and State of New York. THE BORROWER,
THE ADMINISTRATIVE AGENT, THE ISSUING BANK AND EACH BANK HEREBY WAIVE TRIAL BY
JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY LOAN DOCUMENT RELATED CLAIM.
43
Section 8.11 LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED UNDER
APPLICABLE LAW, NEITHER THE ADMINISTRATIVE AGENT, ANY SYNDICATION AGENT, NOR THE
BANKS NOR ANY OTHER INDEMNIFIED PERSON SHALL HAVE ANY LIABILITY WITH RESPECT TO,
AND THE BORROWER HEREBY WAIVES, RELEASES AND AGREES NOT TO ▇▇▇ FOR, ANY PUNITIVE
DAMAGES SUFFERED BY THE BORROWER IN CONNECTION WITH ANY LOAN DOCUMENT RELATED
CLAIM.
Section 8.12 Severability of Provisions. Any provision of the Loan
Documents that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions thereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. To the extent permitted by Applicable Law, the Borrower hereby
waives any provision of Applicable Law that renders any provision of the Loan
Documents prohibited or unenforceable in any respect.
Section 8.13 Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto were upon the same instrument.
Section 8.14 Survival of Obligations. The obligations of the Borrower
under Sections 1.14, 1.15, 1.19 and 8.02, and the obligations of the Banks under
Section 7.05, shall survive the Repayment Date.
Section 8.15 Entire Agreement. This Agreement and the Notes embody the
entire agreement among the Borrower, the Administrative Agent, the Issuing Bank
and the Banks relating to the subject matter hereof and supersede all prior
agreements, representations and understandings, if any, relating to the subject
matter hereof.
Section 8.16 Successors and Assigns. All of the provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
Section 8.17 Cash Collateral. If, at any time, payment, prepayment or
cash collateralization of Contingent Reimbursement Obligations shall be required
pursuant to any provision of any of the Loan Documents, such payment, prepayment
or cash collateralization shall be made by deposit of funds in Dollars, in the
amount of such payment, prepayment or cash collateralization, into a cash
collateral account at the Administrative Agent's Office, which account shall be
under the sole dominion and control of the Administrative Agent and is hereby
pledged to the Administrative Agent for the benefit of itself, the Banks and the
Issuing Bank as security for the payment of the Contingent Reimbursement
Obligations and any other amounts that may become payable hereunder. Funds
deposited in such account, and any income thereon, may be applied by the
Administrative Agent against amounts payable under the Loan Documents as such
amounts become due. Any funds remaining in such account when all Contingent
Reimbursement Obligations and other amounts payable under the Loan Documents
have been paid and the Repayment Date shall have occurred shall be promptly
remitted to the Borrower.
44
Section 8.18 Syndication Agent Obligations. No Syndication Agent shall
have any liability or obligation whatsoever to the Borrower or any Bank at any
time under this Agreement, other than its obligations as a Bank hereunder.
ARTICLE IX
INTERPRETATION
Section 9.01 Defined Terms. For the purposes of this Agreement:
"364-Day Commitments" shall have the meaning ascribed to the term
"Commitments" in the 364-Day Facility.
"364-Day Facility" shall mean that certain 364-Day
Credit Agreement
dated as of __________, 2000 by and between
Xcel Energy Inc., the banks listed
on the signature pages thereof, The Bank of New York, as Administrative Agent,
and Bank of America, N.A. and Citibank, N.A., as Syndication Agents.
"364-Day Letter of Credit Participations" shall have the meaning
ascribed to the term "Letter of Credit Participations" in the 364-Day Facility.
"364-Day Loan" shall have the meaning ascribed to the term "Loan" in
the 364-Day Facility.
"364-Day Bank Nonparticipation" shall have the meaning ascribed to the
term "Bank Nonparticipation" in the 364-Day Facility.
"Accumulated Funding Deficiency" has the meaning ascribed to that term
in Section 302 of ERISA.
"Additional Commitment Bank" has the meaning ascribed thereto in
Section 1.09.
"Administrative Agent" means The Bank of New York, as administrative
agent for the Banks under the Loan Documents, and any successor Administrative
Agent appointed pursuant to Section 7.07.
"Administrative Agent's Office" means the address of the Administrative
Agent specified in or determined in accordance with the provisions of Section
8.01(b).
"Adjusted Eurodollar Rate" means, for any Interest Period, a rate per
annum (rounded upward, if necessary, to the next higher 1/16 of 1%) equal to the
rate obtained by dividing (a) the Eurodollar Rate for such Interest Period by
(b) a percentage equal to 1.00 minus the Reserve Requirement in effect from time
to time during such Interest Period.
"Affiliate" means, with respect to a Person, any other Person that,
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such first Person; unless
otherwise specified, "Affiliate" means an Affiliate of the Borrower.
45
"Agreement" means this Agreement, including all schedules, annexes and
exhibits hereto.
"Agreement Date" means the date set forth as such on the signature
pages hereof, which date is the date the executed copies of this Agreement were
delivered by all parties hereto and, accordingly, this Agreement became
effective and the Banks first became committed to make the Loans and other
extensions of credit contemplated by this Agreement and the Issuing Bank first
became committed to issue the Letters of Credit. If no such date is there set
forth, the Agreement Date shall be the date as of which this Agreement is dated.
"Applicable Eurodollar Rate Margin" means, for any day, (i) if the sum
of (A) the aggregate principal amount of all Loans and 364-Day Loans and (B) the
aggregate amount of all Letter of Credit Participations and 364-Day Letter of
Credit Participations outstanding on such day are less than or equal to 33 1/3%
of Total Commitments, the respective percentage set forth in Column A below, or
(ii) if the sum of (A) the aggregate principal amount of all Loans and 364-Day
Loans and (B) the aggregate amount of all Letter of Credit Participations and
364-Day Letter of Credit Participations outstanding on such day are greater than
33 1/3% of Total Commitments, the respective percentage set forth in Column B
below, opposite the applicable Pricing Level at 5:00 p.m. (New York time) on
such date:
Pricing Level Column A Column B
------------- -------- --------
I 0.270% 0.320%
II 0.300% 0.400%
III 0.450% 0.575%
IV 0.600% 0.725%
V 0.800% 0.925%
VI 1.250% 1.500%
"Applicable Facility Fee Rate" means, at any time, the respective
percentage set forth below opposite the applicable Pricing Level at 5:00 p.m.
(New York time) on such date:
Facility
Pricing Level Fee Rate
------------- --------
I 0.080%
II 0.100%
III 0.125%
IV 0.150%
V 0.200%
VI 0.250%
"Applicable Law" means, anything in Section 8.09 to the contrary
notwithstanding, (a) all applicable common law and principles of equity and (b)
all applicable provisions of all (i) constitutions, statutes, rules, regulations
and orders of governmental bodies, (ii) Governmental Approvals and Governmental
Registrations and (iii) orders, decisions, judgments and decrees.
46
"Assignment and Acceptance" means any notice to the Borrower, the
Administrative Agent and the Issuing Bank with respect to an assignment pursuant
to Section 8.08(a) in the form of Schedule 8.08(a).
"Bank" means (a) any Person listed on Annex A hereto and (b) any Person
(other than the Borrower or any of its Affiliates) that has been assigned any or
all of the rights or obligations of a Bank pursuant to Section 7.08(a).
"Bank Nonparticipation" means (i) the inability of any Bank to acquire
any Letter of Credit Participation pursuant to Section 1.03(d) or to make any
payment required by it under Section 1.03(h) because of such Bank's having been
subject to receivership, insolvency or other similar laws, (ii) the refusal of
any Bank to acquire any Letter of Credit Participation pursuant to Section
1.03(d) or to make any payment required by it under Section 1.03(h) or (iii) the
giving by any Bank to the Issuing Bank of any notice (which has not been
retracted) of its intention not to so acquire any Letter of Credit Participation
or to make any such required payment, in each case without limiting the rights
and remedies of the Borrower against such Bank arising out of any of the
foregoing.
"Bank Tax" means any net income or franchise tax imposed upon any Bank
by any jurisdiction (or political subdivision thereof) in which such Bank or any
of its Lending Offices is located, organized or conducting business on the date
that such Bank became a Bank hereunder.
"Base Financial Statements" means the December 31, 1999 audited,
consolidated balance sheet referred to in clause (iii) of Section 3.06 and the
related statements of income, retained earnings and cash flows for the fiscal
year ended with the date of such balance sheet.
"Base Rate" means, for any day, a rate per annum equal to the higher of
(a) the Prime Rate in effect on such day and (b) the sum of the Federal Funds
Rate in effect on such day plus 1/2%.
"Base Rate Loan" means any RC Loan the interest on which is, or is to
be, as the context may require, computed on the basis of the Base Rate.
"Benefit Plan" of any Person, means, at any time, any employee benefit
plan (other than a Multiemployer Benefit Plan) subject to Title IV of ERISA, the
funding requirements of which (under Section 302 of ERISA or Section 412 of the
Code) are, or at any time within six years immediately preceding the time in
question were, in whole or in part, the responsibility of such Person.
"Bid Rate Loan" means any amount advanced by a Bank pursuant to Section
1.02(a).
"Bid Rate Loan Date" means the requested date for the making of a Bid
Rate Loan, as specified by the Borrower in accordance with Section 1.02(b)(i).
"Bid Rate Note" means a promissory note in the form of Exhibit B.
"BNYCMI" means BNY Capital Markets, Inc., as Sole Lead Arranger and
Book Manager of the credit facility provided hereunder.
47
"Borrower" means
Xcel Energy Inc., a Minnesota corporation.
"Business Day" means any day other than a Saturday, Sunday or other day
on which banks in New York City are authorized to close.
"Capital Security" means, with respect to any Person, (a) any share of
capital stock of such Person or (b) any security convertible into, or any
option, warrant or other right to acquire, any share of capital stock of such
Person.
"Code" means the Internal Revenue Code of 1986.
"Commitment" of any Bank means (a) the amount set forth opposite such
Bank's name under the heading "Commitment" on Annex A or, in the case of a Bank
that becomes a Bank pursuant to an assignment, the amount of the assignor's
Commitment assigned to such Bank, in either case, as the same may be reduced or
increased from time to time pursuant to Section 1.08 or Section 1.09 or reduced
or increased from time to time pursuant to assignments in accordance with
Section 7.08(a), or (b) as the context may require, the obligation of such Bank
to make RC Loans or purchase Letter of Credit Participations in an aggregate
unpaid principal amount not exceeding such amount.
"Commitment Increase" has the meaning ascribed thereto in Section 1.09.
"Commitment Increase Supplement" has the meaning ascribed thereto in
Section 1.09.
"Consolidated Capitalization" means, at any time, the sum of
Consolidated Net Worth at such time and Consolidated Indebtedness at such time.
"Consolidated Indebtedness" means, at any time, the consolidated
Indebtedness of the Borrower and the Consolidated Subsidiaries as of such time.
"Consolidated Net Worth" means, at any time, the sum of (a)
consolidated stockholders' equity of the Borrower and the Consolidated
Subsidiaries at such time and (b) minority interests at such time.
"Consolidated Subsidiary" means, with respect to any Person at any
time, any Subsidiary or other Person the accounts of which would be consolidated
with those of such first Person in its consolidated financial statements as of
such time; unless otherwise specified, "Consolidated Subsidiary" means a
Consolidated Subsidiary of the Borrower.
"Contingent Reimbursement Obligation" means, at any time, the
contingent obligation of the Borrower to reimburse the Issuing Bank for any
Drawings that may in the future be made under an outstanding Letter of Credit,
whenever issued. The amount of all Contingent Reimbursement Obligations at any
time shall be the aggregate amount available to be drawn under outstanding
Letters of Credit at such time.
"Contract" means (a) any agreement, including an indenture, lease or
license, (b) any deed or other instrument of conveyance, (c) any certificate of
incorporation or charter and (d) any by-law.
48
"Control" means, with respect to a Person, possession by another
Person, directly or indirectly, of the power to direct or cause the direction of
the management or policies of such first Person, whether through the ownership
of voting securities, by contract or otherwise. The words "Controlling" and
"Controlled" have correlative meanings.
"Debt" means any Liability that constitutes "debt" or "Debt" under
section 101(11) of the Bankruptcy Code or under the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any analogous Applicable
Law.
"Default" means any condition or event that constitutes an Event of
Default or that with the giving of notice or lapse of time or both would, unless
cured or waived, become an Event of Default.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"Domestic Lending Office" of any Bank means (a) the branch or office of
such Bank set forth below such Bank's name under the heading "Domestic Lending
Office" on Annex A or, in the case of a Bank that becomes a Bank pursuant to an
assignment, the branch or office of such Bank set forth under the heading
"Domestic Lending Office" in the Assignment and Acceptance given to the
Borrower, the Administrative Agent, and the Issuing Bank with respect to such
assignment or (b) such other branch or office of such Bank designated by such
Bank from time to time as the branch or office at which its Base Rate Loans and
Letter of Credit Participations are to be made or maintained.
"Drawing" means (a) any amount disbursed by the Issuing Bank pursuant
to the terms of any Letter of Credit or (b) as the context may require, the
obligation of the Borrower to reimburse the Issuing Bank for such disbursement.
"Enacted", as applied to a Regulatory Change, means the date such
Regulatory Change first becomes effective or is implemented or first required or
expected to be complied with, whether the same is (a) the result of an enactment
by a government or any agency or political subdivision thereof, a determination
of a court or regulatory authority, a request or directive of a regulatory
authority, or otherwise or (b) enacted, adopted, issued or proposed before or
after the Agreement Date.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means, with respect to any Person, any other Person,
including a Subsidiary or other Affiliate of such first Person, that is a member
of any group of organizations within the meaning of Code Sections 414(b), (c),
(m) or (o) of which such first Person is a member.
"Eurodollar Business Day" means any Business Day on which dealings in
Dollar deposits are carried on in the London interbank market and on which
commercial banks are open for domestic and international business (including
dealings in Dollar deposits) in London, England.
"Eurodollar Lending Office" of any Bank means (a) the branch or office
of such Bank set forth below such Bank's name under the heading "Eurodollar
Lending Office" on Annex A or, in
49
the case of a Bank that becomes a Bank pursuant to an assignment, the branch or
office of such Bank set forth under the heading "Eurodollar Lending Office" in
the Assignment and Acceptance given to the Borrower, the Administrative Agent
and the Issuing Bank with respect to such assignment or (b) such other branch or
office of such Bank designated by such Bank from time to time as the branch or
office at which its Eurodollar Rate Loans are to be made or maintained.
"Eurodollar Rate" means, for any Interest Period, the rate of interest
per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Telerate Page 3750 (or any successor page) as the London interbank offered
rate for deposits in Dollars at approximately 11:00 a.m. (London time) two
Eurodollar Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period; provided, however, if more than one
rate is specified on Telerate Page 3750, the applicable rate shall be the
arithmetic mean of all such rates. If, for any reason, such rate is not
available for any Interest Period, "Eurodollar Rate" shall mean, for such
Interest Period, the arithmetic mean (rounded upward, if necessary, to the
nearest 1/16 of 1%) of the rates quoted by major banks in New York City selected
by the Administrative Agent and reasonably acceptable to the Borrower at
approximately 11:00 a.m. New York City time two Eurodollar Business Days prior
to the first day of such Interest Period for loans in Dollars to leading
European banks for a term comparable to such Interest Period commencing on the
first day of such Interest Period and in an amount of $1,000,000.
"Eurodollar Rate Loan" means any RC Loan the interest on which is, or
is to be, as the context may require, computed on the basis of the Adjusted
Eurodollar Rate.
"Event of Default" means any of the events specified in Section 5.01.
"Existing Facilities" shall mean each of (i) the
Credit Agreement dated
as of August 11, 1997 among New Century Energies, Inc., the banks listed on the
signature pages thereof, The Bank of New York, as administrative agent, and Bank
of America N.T. & S.A. and The First National Bank of Chicago, as documentation
agents, and (ii) the
Credit Agreement dated as of November 23, 1999 among New
Century Energies, Inc., the banks listed on the signature pages thereof, The
Bank of New York, as administrative agent, and Citibank, N.A., as syndication
agent.
"Existing Letter of Credit" means Letter of Credit No. S00039269 issued
for the benefit of NationsBank, N.A., as Agent, in a stated amount (as of the
Agreement Date) of $1,000,000 and with an expiration date (as of the Agreement
Date) of March 25, 2001, issued by The Bank of New York under the
credit
agreement referred to in clause (i) of the definition of Existing Facilities.
"Existing Utility Subsidiaries" means Northern States Power Company -
Minnesota, Northern States Power Company - Wisconsin, Southwestern Public
Service Company and Public Service Company of Colorado.
"Federal Funds Rate" means, for any day, the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next
50
preceding Business Day) by the Federal Reserve Bank of New York or, if such rate
is not so published for any day that is a Business Day, the average of
quotations for such day on such transactions received by The Bank of New York
from three Federal funds brokers of recognized standing selected by such bank.
"Generally Accepted Accounting Principles" means (a) in the case of the
Base Financial Statements, generally accepted accounting principles at the time
of the issuance of the Base Financial Statements and (b) in all other cases, the
accounting principles followed in the preparation of the Base Financial
Statements.
"Governmental Approval" means any authority, consent, approval, license
(or the like) or exemption (or the like) of any governmental unit.
"Governmental Registration" means any registration or filing (or the
like) with, or report or notice (or the like) to, any governmental unit.
"Guaranty" of any Person means any obligation, contingent or otherwise,
of such Person (a) to pay any Liability of any other Person or to otherwise
protect, or having the practical effect of protecting, the holder of any such
Liability against loss (whether such obligation arises by virtue of such Person
being a partner of a partnership or participant in a joint venture or by
agreement to pay, to keep well, to purchase assets, goods, securities or
services or to take or pay, or otherwise) or (b) incurred in connection with the
issuance by a third Person of a Guaranty of any Liability of any other Person
(whether such obligation arises by agreement to reimburse or indemnify such
third Person or otherwise). The word "Guarantee" when used as a verb has the
correlative meaning.
"Indebtedness" of any Person means (in each case, whether such
obligation is with full or limited recourse) (a) any obligation of such Person
for borrowed money, (b) any obligation of such Person evidenced by a bond,
debenture, note or other similar instrument, (c) any obligation of such Person
to pay the deferred purchase price of property or services, except a trade
account payable that arises in the ordinary course of business but only if and
so long as the same is payable on customary trade terms, (d) any obligation of
such Person as lessee under a capital lease, (e) any Mandatorily Redeemable
Stock of such Person owned by any Person other than such Person (the amount of
such Mandatorily Redeemable Stock to be determined for this purpose as the
higher of the liquidation preference of and the amount payable upon redemption
of such Mandatorily Redeemable Stock), (f) any obligation of such Person to
purchase securities or other property that arises out of or in connection with
the sale of the same or substantially similar securities or property, (g) any
non-contingent obligation of such Person to reimburse any other Person in
respect of amounts paid under a letter of credit or other Guaranty issued by
such other Person to the extent that such reimbursement obligation remains
outstanding after it becomes non-contingent, (h) any obligation with respect to
an interest rate or currency swap or similar obligation obligating such Person
to make payments, whether periodically or upon the happening of a contingency,
except that if any agreement relating to such obligation provides for the
netting of amounts payable by and to such Person thereunder or if any such
agreement provides for the simultaneous payment of amounts by and to such
Person, then in each such case, the amount of such obligation shall be the net
amount thereof, (i) any Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or
51
otherwise, to be secured by) a Lien on any asset of such Person and (j) any
Indebtedness of others Guaranteed by such Person.
"Indemnified Person" means (a) any Person that is, or at any time was,
the Administrative Agent, a Syndication Agent, the Issuing Bank, a Bank, an
Affiliate of the Administrative Agent, the Issuing Bank or a Bank or a director,
officer, employee or agent of any such Person, and (b) BNYCMI or a director,
officer, employee or agent of BNYCMI.
"Information" means written data, certificates, reports, statements
(including financial statements), opinions of counsel, documents and other
written information.
"Intellectual Property" means (a) (i) patents and patent rights, (ii)
trademarks, trademark rights, trade names, trade name rights, corporate names,
business names, trade styles, service marks, logos and general intangibles of
like nature and (iii) copyrights, in each case whether registered, unregistered
or under pending registration and, in the case of any such that are registered
or under pending registration, whether registered or under pending registration
under the laws of the United States or any other country, (b) reissues,
continuations, continuations-in-part and extensions of any Intellectual Property
referred to in clause (a), and (c) rights relating to any Intellectual Property
referred to in clause (a) or (b), including rights under applications (whether
pending under the laws of the United States or any other country) or licenses
relating thereto.
"Interest Payment Date" means the last day of March, June, September
and December of each year.
"Interest Period" means (a) a period commencing, in the case of a Bid
Rate Loan, on the date of the making of such Loan and ending on the last day of
the Interest Period specified therefor in accordance with Section 1.02(b)(i) and
(b) a period commencing, in the case of the first Interest Period applicable to
a Eurodollar Rate Loan, on the date of the making of, or conversion into, such
Loan, and, in the case of each subsequent, successive Interest Period applicable
thereto, on the last day of the immediately preceding Interest Period, and
ending, depending on the Type of Loan, on the same day in the first, second,
third or sixth calendar month thereafter, except that (x) any Interest Period
with respect to a Eurodollar Rate Loan that would otherwise end on a day that is
not a Eurodollar Business Day shall be extended to the next succeeding
Eurodollar Business Day unless such Eurodollar Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Eurodollar Business Day and (y) any Interest Period with respect to a
Eurodollar Rate Loan that begins on the last Eurodollar Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month in which such Interest Period ends) shall end on the last
Eurodollar Business Day of a calendar month.
"Issuing Bank" means The Bank of New York, or such other Bank as the
Borrower, such Bank and The Bank of New York shall agree, in each case in its
capacity as the issuer of each Letter of Credit.
"LC Sublimit" means, at any time, $50,000,000 minus the pro rata share
thereof (computed on the basis of the Commitments at such time) of each
Nonparticipating Bank.
52
"Lending Office" of any Bank means the Domestic Lending Office or the
Eurodollar Lending Office of such Bank.
"Letter of Credit" means a letter of credit issued by the Issuing Bank
pursuant to Section 1.03.
"Letter of Credit Participation" means, in the case of any Bank (other
than the Issuing Bank) with respect to any Letter of Credit, the participation
interest of such Bank in such Letter of Credit acquired pursuant to Section
1.03(d) and, in the case of the Issuing Bank, its retained interest in such
Letter of Credit. The amount of the Letter of Credit Participation of a Bank
(including the Issuing Bank) in any Letter of Credit at any time shall be deemed
to be the amount equal to such Bank's Participating Bank Percentage of the sum
of (a) the aggregate unpaid amount of all Drawings thereunder at such time and
(b) the amount of the Contingent Reimbursement Obligation with respect thereto
at such time.
"Leverage Ratio" means the ratio of (a) (i) Consolidated Indebtedness
minus (ii) the lesser of (A) the combined amount of Mandatorily Redeemable Stock
and non-recourse Indebtedness of the Borrower and its Consolidated Subsidiaries
or (B) 10% of Consolidated Capitalization to (b) (i) Consolidated Capitalization
minus (ii) the lesser of (A) the combined amount of Mandatorily Redeemable Stock
and non-recourse Indebtedness of the Borrower and its Consolidated Subsidiaries
or (B) 10% of Consolidated Capitalization.
"Liability" of any Person means (in each case, whether with full or
limited recourse) any indebtedness, liability, obligation, covenant or duty of
or binding upon, or any term or condition to be observed by or binding upon,
such Person or any of its assets, of any kind, nature or description, direct or
indirect, absolute or contingent, due or not due, contractual or tortious,
liquidated or unliquidated, whether arising under Contract, Applicable Law, or
otherwise, whether now existing or hereafter arising, and whether for the
payment of money or the performance or non-performance of any act.
"Lien" means, with respect to (a) any property or asset, including any
investment property, (or any income or profits therefrom) of any Person (in each
case whether the same is consensual or nonconsensual or arises by Contract,
operation of law, legal process or otherwise) (i) any mortgage, lien, pledge,
attachment, levy or other security interest of any kind thereupon or in respect
thereof or (ii) any other arrangement, express or implied, under which the same
is subordinated, transferred, sequestered or otherwise identified so as to
subject the same to, or make the same available for, the payment or performance
of any Liability in priority to the payment of the ordinary, unsecured
Liabilities of such Person, or (b) in the case of any investment property, any
Contract or other arrangement, express or implied, under which any Person has
the right to control such investment property. For the purposes of this
Agreement, a Person shall be deemed to own subject to a Lien any asset that it
has acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset.
"Loan" means an RC Loan or a Bid Rate Loan.
53
"Loan Document Related Claim" means any claim or dispute (whether
arising under Applicable Law, including any "environmental" or similar law,
under Contract or otherwise and, in the case of any proceeding relating to any
such claim or dispute, whether civil, criminal, administrative or otherwise) in
any way arising out of, related to, or connected with, the Loan Documents, the
relationships established thereunder or any actions or conduct thereunder or
with respect thereto, whether such claim or dispute arises or is asserted before
or after the Agreement Date or before or after the Repayment Date.
"Loan Documents" means (a) this Agreement and the Notes and (b) all
other agreements, documents and instruments relating to, arising out of, or in
any way connected with (i) any agreement, document or instrument referred to in
clause (a), (ii) any other agreement, document or instrument referred to in this
clause (b) or (iii) any of the transactions contemplated by any agreement,
document or instrument referred to in clause (a) or in this clause (b).
"Mandatorily Redeemable Stock" means, with respect to any Person, any
share of such Person's capital stock to the extent that it is (a) redeemable,
payable or required to be purchased or otherwise retired or extinguished, or
convertible into any Indebtedness or other Liability of such Person, (i) at a
fixed or determinable date, whether by operation of a sinking fund or otherwise,
(ii) at the option of any Person other than such Person or (iii) upon the
occurrence of a condition not solely within the control of such Person, such as
a redemption required to be made out of future earnings or (b) convertible into
Mandatorily Redeemable Stock.
"Materially Adverse Effect" means, (a) with respect to any Person, any
materially adverse effect on such Person's business, assets, Liabilities,
financial condition or results of operations, (b) with respect to a group of
Persons "taken as a whole", any materially adverse effect on such Persons'
business, assets, Liabilities, financial conditions or results of operations
taken as a whole on, where appropriate, a consolidated basis in accordance with
Generally Accepted Accounting Principles and (c) with respect to any Loan
Document, any adverse effect, whether or not material, on the binding nature,
validity or enforceability thereof as an obligation of the Borrower.
"Maximum Permissible Rate" means, with respect to interest payable on
any amount, the rate of interest on such amount that, if exceeded, could, under
Applicable Law, result in (a) civil or criminal penalties being imposed on the
payee or (b) the payee's being unable to enforce payment of (or, if collected,
to retain) all or any part of such amount or the interest payable thereon.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Benefit Plan" means, for any Person at any time, any
multiemployer plan as defined in Section 4001(a)(3) of ERISA contributed to, or
required to be contributed to, by such Person at any time within six years
immediately preceding the date of determination.
"Nonparticipating Bank" means a Bank designated by the Issuing Bank as
a Bank with respect to which a Bank Nonparticipation or 364-Day Bank
Nonparticipation has occurred. The designation of a Bank by the Issuing Bank as
a "Nonparticipating Bank" shall not affect the
54
status of such Bank as a Participating Bank in respect of Letters of Credit
issued prior to such designation.
"Non-US Bank" means a Person that is not a United States Person and
that is not described in Section 881(c)(3) of the Code.
"Note" means any RC Note or Bid Rate Note.
"NRG" means NRG Energy, Inc., a Delaware corporation.
"Overdue Rate" means (a) in the case of overdue amounts of the
principal of a Eurodollar Rate Loan or a Bid Rate Loan, (A) until the last day
of the applicable Interest Period during which such Loan became due and payable,
the rate otherwise applicable under the first sentence of Section 1.04(a)(i)
plus 2%, and (B) thereafter, the Base Rate in effect from time to time plus 2%,
and (b) in the case of all other overdue amounts, the Base Rate in effect from
time to time plus 2%.
"Participant" has the meaning ascribed thereto in Section 8.08(c).
"Participating Bank" means a Bank that is not a Nonparticipating Bank.
A Participating Bank shall remain a Participating Bank in all Letters of Credit
with respect to which it was a Participating Bank prior to its designation as a
Nonparticipating Bank.
"Participating Bank Percentage" means, for a Participating Bank, with
respect to any Letter of Credit, the fraction, expressed as a percentage, the
numerator of which is such Participating Bank's Commitment and the denominator
of which is the sum of the aggregate amount of the Commitments of all Banks that
are, at the time of issuance of such Letter of Credit, Participating Banks.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Lien" means (i) any Lien securing and only securing the
obligations of the Borrower under the Loan Documents, (ii) any Lien securing a
tax, assessment or other governmental charge or levy or the claim of a
materialman, mechanic, carrier, warehouseman or landlord for labor, materials,
supplies or rentals incurred in the ordinary course of business, but only if
payment thereof shall not at the time be required to be made in accordance with
Section 4.03 and foreclosure, distraint, sale or other similar proceedings shall
not have been commenced; (iii) any Lien on the properties and assets of a
Subsidiary of the Borrower securing an obligation owing to the Borrower; (iv)
any Lien consisting of a deposit or pledge made in the ordinary course of
business in connection with, or to secure payment of, obligations under workers'
compensation, unemployment insurance or similar legislation; (v) any Lien
arising pursuant to an order of attachment, distraint or similar legal process
arising in connection with legal proceedings, but only if and so long as the
execution or other enforcement thereof is not unstayed for more than 20 days;
(vi) any Lien existing on (A) any property or asset of any Person at the time
such Person becomes a Subsidiary or (B) any property or asset at the time such
property or asset is acquired by the Borrower or a Subsidiary, but only, in the
case of either (A) or (B), if and so long as (1) such Lien was not created in
contemplation of such Person becoming a Subsidiary or such property or asset
being acquired, (2) such Lien is and will remain confined
55
to the property or asset subject to it at the time such Person becomes a
Subsidiary or such property or asset is acquired and to fixed improvements
thereafter erected on such property or asset, (3) such Lien secures only the
obligation secured thereby at the time such Person becomes a Subsidiary or such
property or asset is acquired and (4) the obligation secured by such Lien is not
in default; (vii) any Lien in existence on the Agreement Date to the extent set
forth on Schedule 5.05, but only, in the case of each such Lien, to the extent
it secures an obligation outstanding on the Agreement Date to the extent set
forth on such Schedule; (viii) any Lien securing Purchase Money Indebtedness but
only if, in the case of each such Lien, (A) such Lien shall at all times be
confined solely to the property or asset the purchase price of which was
financed through the incurrence of the Purchase Money Indebtedness secured by
such Lien and to fixed improvements thereafter erected on such property or asset
and (B) such Lien attached to such property or asset within 90 days of the
acquisition of such property or asset; (ix) deposits made in the ordinary course
of business to secure the performance of bids, trade contracts (other than
Indebtedness), operating leases and surety bonds; (x) any Lien constituting a
renewal, extension or replacement of a Lien constituting a Permitted Lien by
virtue of clause (vi), (vii), (viii) or (x) of this definition, but only if (A)
at the time such Lien is granted and immediately after giving effect thereto, no
Default would exist, (B) such Lien is limited to all or a part of the property
or asset that was subject to the Lien so renewed, extended or replaced and to
fixed improvements thereafter erected on such property or asset, (C) the
principal amount of the obligations secured by such Lien does not exceed the
principal amount of the obligations secured by the Lien so renewed, extended or
replaced and (D) the obligations secured by such Lien bear interest at a rate
per annum not exceeding the rate borne by the obligations secured by the Lien so
renewed, extended or replaced except for any increase that is commercially
reasonable at the time of such increase or (xi) Liens on any property of any
Subsidiary securing Debt of such Subsidiary.
"Person" means any individual, sole proprietorship, corporation,
partnership, limited liability company, trust, unincorporated organization,
mutual company, joint stock company, estate, union, employee organization,
government or any agency or political subdivision thereof or, for the purpose of
the definition of "ERISA Affiliate", any trade or business.
"Prime Rate" means the prime U.S. commercial lending rate of The Bank
of New York, as publicly announced to be in effect from time to time. The Prime
Rate shall be adjusted automatically, without notice, on the effective date of
any change in such prime U.S. commercial lending rate. The Prime Rate is not
necessarily The Bank of New York's lowest rate of interest.
"Pricing Level" means, at any time, the pricing level set forth below
opposite the applicable senior unsecured long-term debt ratings of the Borrower
by S&P or Moody's, as most recently announced at such time, determined as set
forth below:
56
Senior Unsecured Pricing
Debt Rating Level
-------------------------------------------- -------
S&P Moody's
----------------- -----------------
> OR EQUAL TO A OR > OR EQUAL TO A2 I
A- OR A3 II
BBB+ OR Baa1 III
BBB OR Baa2 IV
BBB- OR Baa3 V
< OR EQUAL TO BB+ AND < OR EQUAL TO Ba1 VI
Notwithstanding the above, if at any time there is a split in ratings between
S&P and Moody's, (a) if such split is of one level, the applicable level shall
be the higher of the S&P and ▇▇▇▇▇'▇ rating and (b) if such split is of two or
more levels, the applicable level shall be one level below the higher of the S&P
and ▇▇▇▇▇'▇ rating.
"Pro Rata Share" means, with respect to any Bank at any time, the
percentage of the aggregate amount of the Commitments at such time that is
represented by such Bank's Commitment at such time.
"Prohibited Transaction" means any transaction that is prohibited under
Code Section 4975 or ERISA Section 406 and not exempt under Code Section 4975 or
ERISA Section 408.
"PUHCA" means the Public Utility Holding Company Act of 1935.
"Purchase Money Indebtedness" means (a) Indebtedness of the Borrower
that is incurred to finance part or all of (but not more than) the purchase
price of a tangible asset; provided that (i) neither the Borrower nor any
Subsidiary had at any time prior to such purchase any interest in such asset
other than a security interest or an interest as lessee under an operating lease
and (ii) such Indebtedness is incurred within 30 days after such purchase, or
(b) Indebtedness that (i) constitutes a renewal, extension or refunding of, but
not an increase in the principal amount of, Purchase Money Indebtedness that is
such by virtue of clause (a) or (b) and (ii) bears interest at a rate per annum
that is commercially reasonable at the time such renewed, refunded or extended
Indebtedness is incurred.
"RC Loan" means any amount advanced by a Bank pursuant to Section
1.01(a).
"RC Note" means any Note in the form of Exhibit A.
"Register" has the meaning ascribed thereto in Section 8.08(b).
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System.
"Regulation X" means Regulation X of the Board of Governors of the
Federal Reserve System.
"Regulatory Change" means, with respect to any Person, any Applicable
Law, interpretation, directive, determination, request or guideline (whether or
not having the force of
57
law), or any change therein or in the administration or enforcement thereof,
that is Enacted after the Agreement Date by a governmental unit having
jurisdiction over such Person, including any such that imposes, increases or
modifies any Tax, reserve requirement, insurance charge, special deposit
requirement, assessment or capital adequacy requirement, or determines that the
Commitments do not constitute commitments with an original maturity of one year
or less, but excluding any such that imposes, increases or modifies any Bank
Tax.
"Repayment Date" means the later of (a) the termination of the
Commitments (whether as a result of the occurrence of the Termination Date,
reduction to zero pursuant to Section 1.08 or termination pursuant to Section
6.02), (b) the payment in full of all principal of and interest on the Loans and
Drawings and all other amounts payable or accrued hereunder and (c) the
expiration or cancellation of, or the reduction to zero of the amount available
to be drawn under, all outstanding Letters of Credit.
"Reportable Event" means, with respect to any Benefit Plan of any
Person, (a) the occurrence of any of the events set forth in ERISA Sections
4043(c), other than an event as to which the requirement of 30 days' notice, or
the penalty for failure to provide such notice, has been waived by the PBGC, (b)
the existence of conditions sufficient to require advance notice to the PBGC
pursuant to ERISA Section 4043(b), (c) the occurrence of any of the events set
forth in ERISA Sections 4062(e) or 4063(a) or the regulations thereunder, (d)
any event requiring such Person or any of its ERISA Affiliates to provide
security to such Benefit Plan under Code Section 401(a)(29) or (e) any failure
to make a payment required by Code Section 412(m) with respect to such Benefit
Plan.
"Representation and Warranty" means any representation or warranty made
pursuant to or under (a) Section 2.02, Article III or any other provision of
this Agreement or (b) any amendment to, or waiver of rights under, this
Agreement, WHETHER OR NOT, IN THE CASE OF ANY REPRESENTATION OR WARRANTY
REFERRED TO IN CLAUSE (a) OR (b) OF THIS DEFINITION (EXCEPT, IN EACH CASE, TO
THE EXTENT OTHERWISE EXPRESSLY PROVIDED), THE INFORMATION THAT IS THE SUBJECT
MATTER THEREOF IS WITHIN THE KNOWLEDGE OF THE BORROWER.
"Required Banks" means, (a) so long as the Commitments shall not have
expired or been terminated, Banks having more than 50% of the RC Loans and
Letter of Credit Participations outstanding or, if there are no RC Loans or
Letter of Credit Participations outstanding, more than 50% of the aggregate
amount of the Commitments and (b) at any time after the Commitments have expired
or been terminated, Banks having more than 50% of the Loans and Letter of Credit
Participations outstanding.
"Reserve Requirement" means, at any time, the then current maximum rate
for which reserves (including any marginal, supplemental or emergency reserve)
are required to be maintained under Regulation D by member banks of the Federal
Reserve System in New York City with deposits exceeding five billion Dollars
against "Eurocurrency liabilities", as that term is used in Regulation D. The
Adjusted Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Reserve Requirement.
58
"S&P" means Standard & Poor's Ratings Service, a division of the
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"SEC" means the United States Securities and Exchange Commission.
"Significant Subsidiary" means (a) NRG Energy, Inc., (b) each of the
Existing Utility Subsidiaries and (c) each other Subsidiary (i) the total assets
(after intercompany eliminations) of which represent 10% or more of the
consolidated assets of the Borrower and the Consolidated Subsidiaries or (ii)
the net worth of which represents 10% or more of the Consolidated Net Worth of
the Borrower and the Consolidated Subsidiaries, in each case determined on a
consolidated basis, as reflected in the financial statements most recently
delivered pursuant to Section 4.08(a) or (b).
"SPS" means Southwestern Public Service Company.
"SPS Generation Assets Disposition" shall mean the sale of all or any
portion of the generation and related assets of Southwestern Public Service
Company located in Texas and New Mexico as described in the SEC Form 8-K filed
by Southwestern Public Service Company on April 19, 2000.
"Subsidiary" means, with respect to any Person at any time (a) any
other Person the accounts of which would be consolidated with those of such
first Person in its consolidated financial statements as of such time, and (b)
any other Person (i) that is, at such time, Controlled by, or (ii) securities of
which having ordinary voting power to elect a majority of the board of directors
(or other persons having similar functions), or other ownership interests of
which ordinarily constituting a majority voting interest, are at such time,
directly or indirectly, owned or Controlled by such first Person, or by one or
more of its Subsidiaries, or by such first Person and one or more of its
Subsidiaries; unless otherwise specified, "Subsidiary" means a Subsidiary of the
Borrower.
"Tax" means any Federal, State or foreign tax, assessment or other
governmental charge (including any withholding tax) upon a Person or upon its
assets, revenues, income or profits.
"Termination Date" means the fifth anniversary of the Agreement Date.
"Termination Event" means (a) any Reportable Event with respect to a
Benefit Plan, (b) the termination of a Benefit Plan or Multiemployer Benefit
Plan within the meaning of ERISA Sections 4041 or 4041A, respectively, including
without limitation the filing of a notice of intent to terminate a Benefit Plan
under ERISA Section 4041(a)(2) and the treatment of a plan amendment as a
termination under ERISA Sections 4041(e) or 4041A(a), (c) the institution of
proceedings to terminate a Benefit Plan or Multiemployer Benefit Plan under
ERISA Section 4042 or (d) the appointment of a trustee to administer a Benefit
Plan or Multiemployer Benefit Plan under ERISA Section 4042.
"Total Commitments" shall mean the sum of the Commitments and the
364-Day Commitments.
59
"Type" means, with respect to Loans, any of the following, each of
which shall be deemed to be a different "Type" of Loan: Base Rate Loans,
Eurodollar Rate Loans having a one-month Interest Period, Eurodollar Rate Loans
having a two-month Interest Period, Eurodollar Rate Loans having a three-month
Interest Period and Eurodollar Rate Loans having a six-month Interest Period.
Each Bid Rate Loan having an Interest Period different from that of any other
Bid Rate Loan shall be a different "Type" of Loan. Any Eurodollar Rate Loan
having an Interest Period that differs from the duration specified for a Type of
Eurodollar Rate Loan listed above solely as a result of the operation of clauses
(a) and (b) of the definition of "Interest Period" shall be deemed to be a Loan
of such above-listed Type notwithstanding such difference in duration of
Interest Periods.
"United States Person" means a corporation, partnership or other entity
created, organized or incorporated under the laws of the United States of
America or a State thereof (including the District of Columbia).
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even if the right so
to vote has been suspended by the happening of such contingency.
Section 9.02 Other Interpretive Provisions. (a) Except as otherwise
specified herein, all references herein (i) to any Person shall be deemed to
include such Person's successors and assigns, (ii) to any Applicable Law defined
or referred to herein shall be deemed references to such Applicable Law or any
successor Applicable Law as the same may have been or may be amended or
supplemented from time to time and (iii) to any Loan Document or other Contract
defined or referred to herein shall be deemed references to (A) in the case of
any such Loan Document, such Loan Document as the terms thereof may have been or
may be amended, supplemented, waived or otherwise modified from time to time,
and (B) in the case of any other Contract, such Contract as in effect on the
Agreement Date.
(b) When used in this Agreement, the words "herein", "hereof"
and "hereunder" and words of similar import shall refer to this Agreement as a
whole and not to any provision of this Agreement, and the words "Article",
"Section", "Annex", "Schedule" and "Exhibit" shall refer to Articles and
Sections of, and Annexes, Schedules and Exhibits to, this Agreement unless
otherwise specified.
(c) Whenever the context so requires, the neuter gender
includes the masculine or feminine, the masculine gender includes the feminine,
and the singular number includes the plural, and vice versa.
(d) Any item or list of items set forth following the word
"including", "include" or "includes" is set forth only for the purpose of
indicating that, regardless of whatever other items are in the category in which
such item or items are "included", such item or items are in such category, and
shall not be construed as indicating that the items in the category in which
such item or items are "included" are limited to such items or to items similar
to such items.
60
(e) Each authorization in favor of the Administrative Agent,
the Issuing Bank, the Banks or any other Person granted by or pursuant to this
Agreement shall be deemed to be irrevocable and coupled with an interest.
(f) Except as otherwise specified herein, all references to
the time of day shall be deemed to be to New York City time as then in effect.
Section 9.03 Accounting Matters. Unless otherwise specified herein, all
accounting determinations hereunder and all computations utilized by the
Borrower in complying with the covenants contained herein shall be made, all
accounting terms used herein shall be interpreted, and all financial statements
required to be delivered hereunder shall be prepared, in accordance with
Generally Accepted Accounting Principles, except, in the case of such financial
statements, for departures from Generally Accepted Accounting Principles that
may from time to time be approved in writing by the independent certified public
accountants who are at the time, in accordance with Section 4.08(b), reporting
on the Borrower's financial statements.
Section 9.04 Representations and Warranties. All Representations and
Warranties shall be deemed made (a) in the case of any Representation and
Warranty contained in this Agreement at the time of its initial execution and
delivery, at and as of the Agreement Date, (b) in the case of any Representation
and Warranty contained in this Agreement or any other document at the time any
Loan is made or any Letter of Credit is issued, at and as of such time and (c)
in the case of any particular Representation and Warranty, wherever contained,
at such other time or times as such Representation and Warranty is made or
deemed made in accordance with the provisions of this Agreement or the document
pursuant to, under or in connection with which such Representation and Warranty
is made or deemed made; provided, that any Representation and Warranty expressly
stating that it is to be made as of a specific date shall be made only as of
such date.
Section 9.05 Captions. Captions to Articles, Sections and subsections
of, and Annexes, Schedules and Exhibits to, this Agreement are included for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or in any way affect the meaning or construction of any
provision of this Agreement.
Section 9.06 Interpretation of Related Documents. Except as otherwise
specified therein, terms that are defined herein that are used in Notes,
certificates, opinions and other documents delivered in connection herewith
shall have the meanings ascribed to them herein and such documents shall be
otherwise interpreted in accordance with the provisions of this Article IX.
61
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers all as of the Agreement Date.
XCEL ENERGY INC.
By:
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
THE BANK OF NEW YORK,
as Administrative Agent, Issuing Bank and
a Bank
By:
---------------------------------------
Name:
Title:
BANK OF AMERICA, N.A.,
as Syndication Agent and a Bank
By:
---------------------------------------
Name:
Title:
CITICORP USA, INC.,
as Syndication Agent and a Bank
By:
---------------------------------------
Name:
Title:
BANK ONE, N.A.
By:
---------------------------------------
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.
-
---------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By:
---------------------------------------
Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT
New York and Grand Cayman Branches
By:
---------------------------------------
Name:
Title:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By:
---------------------------------------
Name:
Title:
THE FUJI BANK, LIMITED
By:
---------------------------------------
Name:
Title:
MELLON BANK, N.A.
By:
---------------------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED
By:
---------------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By:
---------------------------------------
Name:
Title:
ABN AMRO BANK N.V.
By:
---------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
---------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By:
---------------------------------------
Name:
Title:
AMARILLO NATIONAL BANK
By:
---------------------------------------
Name:
Title:
Agreement Date: November 10, 2000
EXECUTION COPY
AMENDMENT NO. 1
Dated as of August 2, 2002
to
FIVE-YEAR
CREDIT AGREEMENT
Dated as of November 10, 2000
XCEL ENERGY INC., a Minnesota corporation, and the BANKS listed on the
signature pages hereof agree as follows:
1.
Credit Agreement. Reference is made to the Five-Year
Credit
Agreement, dated as of November 10, 2000, among
Xcel Energy Inc., a Minnesota
corporation, the Banks listed on the signature pages thereof, Bank of America,
N.A. and Citicorp USA, Inc., as Syndication Agents, and The Bank of New York, as
Issuing Bank and Administrative Agent (the "
Credit Agreement"). Terms defined in
the Credit Agreement and not otherwise defined herein are used herein as therein
defined.
2. Amendments. Subject to satisfaction of the conditions precedent set
forth in Section 4 below, effective as of the date hereof (the "Effective
Date"), the Credit Agreement shall be amended as follows:
(a) Section 3.02 shall be amended by replacing the words "Agreement
Date" with the words "Excluded Subsidiary Amendment Date".
(b) The first sentence of Section 3.06 shall be amended by replacing
each occurrence therein of the words "Consolidated Subsidiaries" with the words
"consolidated Subsidiaries".
(c) Section 4.08(a), (b) and (c) shall be amended to read as follows:
(a) Quarterly Financial Statements. (i) As soon as available
and in any event within 45 days after the close of each of the first
three quarterly accounting periods in each fiscal year of the Borrower,
commencing with the quarterly period ending September 30, 2000, a copy
of the Borrower's Quarterly Report on Form 10-Q for such quarter, as
filed with the SEC, which shall contain a consolidated balance sheet of
the Borrower and its consolidated Subsidiaries as at the end of such
quarterly period and the related consolidated statements of income,
retained earnings and cash flows of the Borrower and its consolidated
Subsidiaries for such quarterly period and for the elapsed portion of
the fiscal year ended with the last day of such quarterly period,
setting forth in each case in comparative form the figures for the
corresponding periods of the previous fiscal year.
(ii) As soon as available and in any event within 60 days
after the close of each of the first three quarterly accounting periods
in each fiscal year of the Borrower, commencing with the quarterly
period ending June 30, 2002, a consolidated balance sheet of the
Borrower and the Consolidated Subsidiaries as at the end of such
quarterly period (which balance sheet shall exclude equity investments
in Excluded Subsidiaries) and the
related consolidated statements of income and cash flows of the
Borrower and the Consolidated Subsidiaries for such quarterly period
and for the elapsed portion of the fiscal year ended with the last day
of such quarterly period, setting forth in each case in comparative
form the figures for the corresponding periods of the previous fiscal
year.
(b) Year-End Financial Statements; Accountants' Certificate.
(i) As soon as available and in any event within 90 days after the end
of each fiscal year of the Borrower, commencing with the fiscal year
ending December 31, 2000:
(A) a copy of the Borrower's Annual Report on Form
10-K for such year, as filed with the SEC, which shall contain
a consolidated balance sheet of the Borrower and the
consolidated Subsidiaries as at the end of such fiscal year
and the related consolidated statements of income, retained
earnings and cash flows of the Borrower and the consolidated
Subsidiaries for such fiscal year, setting forth in
comparative form the figures as at the end of and for the
previous fiscal year; and
(B) an audit report of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (for
fiscal years prior to December 31, 2002) or Deloitte & Touche
(for fiscal years ending on or after December 31, 2002) or
other independent certified public accountants of recognized
standing satisfactory to the Required Banks, on such of the
financial statements referred to in clause (A) as are
consolidated financial statements, which report shall be in
scope and substance satisfactory to the Required Banks; and
(ii) As soon as available and in any event within 105 days
after the end of each fiscal year of the Borrower, commencing with the
fiscal year ending December 31, 2002, a consolidated balance sheet of
the Borrower and the Consolidated Subsidiaries as at the end of such
fiscal year (which balance sheet shall exclude equity investments in
Excluded Subsidiaries) and the related consolidated statements of
income and cash flows of the Borrower and the Consolidated Subsidiaries
for such fiscal year, setting forth in comparative form the figures as
at the end of and for the previous fiscal year.
(c) Officer's Certificate as to Financial Statements and
Defaults. (i) At the time that financial statements are furnished
pursuant to Section 4.08(a)(i) or (b)(i), a certificate of the
president, a vice president, the treasurer, an assistant treasurer or
chief financial officer of the Borrower in the form of Schedule 4.08A.
(ii) At the time that financial statements are furnished
pursuant to Section 4.08(a)(ii) or (b)(ii), a certificate of the
president, a vice president, the treasurer, an assistant treasurer or
chief financial officer of the Borrower in the form of Schedule 4.08B.
(d) Section 4.08 shall be further amended by adding the following
subsection immediately after subsection (f) thereof:
(g) Within 20 days after the end of each month, a statement of
projected sources and uses for the Borrower for the next three months.
2
(e) Section 4.09 shall be amended by replacing the words "each
Consolidated Subsidiary" with the words "each of its consolidated Subsidiaries".
(f) The proviso in clause (f) of Section 5.03 shall be amended to read
as follows:
provided that all sales, transfers and other dispositions made before
the Termination Date pursuant to this clause (f) shall not exceed 50%
of the consolidated assets of the Borrower and the Consolidated
Subsidiaries as of September 30, 2000.
(g) Section 5.06 shall be amended to read as follows:
Section 5.06 Leverage Ratio. The Borrower shall not permit the
Leverage Ratio to exceed 0.65 to 1.00 at any time.
(h) Article V shall be amended by adding the following covenants
immediately after Section 5.07 thereof:
Section 5.08 Guaranties of Excluded Subsidiaries. The Borrower
shall not, and shall not permit any Covered Subsidiary to, directly or
indirectly, be obligated, at any time, in respect of any Guaranty of
Liabilities of any Excluded Subsidiary, except that this Section 5.08
shall not apply to (a) Guaranties outstanding on the Excluded
Subsidiary Amendment Date described on Schedule 5.08 under which the
maximum aggregate amount of Liabilities of Excluded Subsidiaries
Guaranteed does not at any time exceed the amount set forth on such
Schedule or (b) other Guaranties provided that the Liabilities of
Excluded Subsidiaries Guaranteed pursuant to such other Guaranties do
not constitute Indebtedness; provided that, in any event, the maximum
aggregate amount of Liabilities of Excluded Subsidiaries Guaranteed by
Guaranties permitted under clause (a) and (b) together shall not at any
time exceed $300,000,000.
Section 5.09 Investments in Excluded Subsidiaries. The
Borrower shall not, and shall not permit any Covered Subsidiary to,
directly or indirectly, make or acquire any Investment in any Excluded
Subsidiary after the Excluded Subsidiary Amendment Date, except that
this Section 5.09 shall not apply to (a) Investments that the Borrower
or such Covered Subsidiary, as the case may be, is legally obligated to
make or acquire pursuant to commitments existing on the Excluded
Subsidiary Amendment Date described on Schedule 5.09, in amounts not in
excess of the amounts disclosed thereon, or (b) other Investments in an
aggregate amount (for the Borrower and all Covered Subsidiaries
together) not exceeding $100,000,000; provided that, in any event, the
aggregate amount of Investments permitted under clause (a) and (b)
together shall not exceed $400,000,000.
Section 5.10 Dividends. The Borrower shall not declare any
dividend on its common stock after the Excluded Subsidiary Amendment
Date unless the Borrower shall have reviewed and adopted a new dividend
policy. This review will consider the Borrower's current and
prospective liquidity.
(i) Section 6.01(c)(ii) shall be amended to read as follows:
3
(ii) any financial statement furnished pursuant to Section 4.08(a) or
(b) shall not fairly present, in accordance with Generally Accepted
Accounting Principles (except for (A) changes therein or departures
therefrom that are described in the certificate or report accompanying
such statements and that have been approved in writing by the
Borrower's then current independent certified public accountants and
(B) in the case of consolidated financial statements of the Borrower
and the Consolidated Subsidiaries, the non-consolidation of the
Excluded Subsidiaries and exclusion of equity investments in Excluded
Subsidiaries), the information purported to be presented thereby;
(j) Section 6.01(d)(i) shall be amended by replacing the Section
reference "5.07" with the Section reference "5.10".
(k) Section 6.01(e) shall be amended by inserting the words "(other
than an Excluded Subsidiary)" immediately after the words "The Borrower or any
Subsidiary".
(l) The exception after clause (vii) of Section 6.01(h) shall be
amended by replacing the words "the Borrower or any Subsidiary" with the words
"the Borrower or any Covered Subsidiary".
(m) Section 8.06 shall be amended by inserting the following language
immediately after the words "provided, however, that":
(a) no amendment to or waiver of Section 5.08 or 5.09 shall be
effective unless in writing and signed by the Supermajority Banks and
(b)
(n) The definition of "Applicable Eurodollar Rate Margin" in Section
9.01 shall be amended by adding the following row to the bottom of the table
therein:
VII 1.900% 2.150%
(o) The definition of "Applicable Facility Fee Rate" in Section 9.01
shall be amended by adding the following row to the bottom of the table therein:
VII 0.350%
(p) The definitions of "Consolidated Indebtedness", "Consolidated Net
Worth", "Consolidated Subsidiary" and "Materially Adverse Effect" in Section
9.01 shall be amended to read as follows:
"Consolidated Indebtedness" means, at any time, the sum of (a)
consolidated Indebtedness of the Borrower and the Consolidated
Subsidiaries as of such time and (b) the aggregate amount of
outstanding Liabilities of Excluded Subsidiaries Guaranteed by the
Borrower and the Consolidated Subsidiaries as of such time.
"Consolidated Net Worth" means, at any time, the sum of (a)
consolidated stockholders' equity of the Borrower and the Consolidated
Subsidiaries at such time and (b) minority interests at such time,
provided that such consolidated stockholders' equity
4
and minority interests shall, for purposes of this definition, be
determined exclusive of any value for equity investments in Excluded
Subsidiaries.
"Consolidated Subsidiary" means any Covered Subsidiary the
accounts of which would be consolidated with those of the Borrower in
its consolidated financial statements as of such time.
"Materially Adverse Effect" means, (a) with respect to any
Person, any materially adverse effect on such Person's business,
assets, Liabilities, financial condition or results of operations, (b)
with respect to a group of Persons "taken as a whole", any materially
adverse effect on such Persons' business, assets, Liabilities,
financial conditions or results of operations taken as a whole on,
where appropriate, a consolidated basis in accordance with Generally
Accepted Accounting Principles (except, in the case of a "Materially
Adverse Effect on the Borrower and the Consolidated Subsidiaries taken
as a whole," for non-consolidation of the Excluded Subsidiaries and
exclusion of equity investments in Excluded Subsidiaries) and (c) with
respect to any Loan Document, any adverse effect, whether or not
material, on the binding nature, validity or enforceability thereof as
an obligation of the Borrower. A "Materially Adverse Effect" shall not
be deemed to have occurred with respect to the Borrower and the
Consolidated Subsidiaries taken as a whole if the adverse effect is
solely on the value of equity investments of the Borrower and the
Consolidated Subsidiaries in Excluded Subsidiaries.
(q) The definition of "Pricing Level" in Section 9.01 shall be amended
by deleting all occurrences of the word "or" in the table therein and replacing
the last row of the table therein and the final sentence of such definition with
the following:
BB+ Ba1 VI
< or equal to BB < or equal to Ba2 VII
Notwithstanding the above, if at any time there is a split in ratings
between S&P and ▇▇▇▇▇'▇, the applicable level shall be the level
applicable to the lower of the S&P rating and the ▇▇▇▇▇'▇ rating.
(r) Section 9.01 shall be amended by deleting the definition of
"Significant Subsidiary" and inserting the following definition in its place:
"Significant Subsidiaries" means (a) each of the Existing
Utility Subsidiaries and (b) each other Subsidiary (i) the total assets
(after intercompany eliminations) of which represent 10% or more of the
consolidated assets of the Borrower and the Consolidated Subsidiaries
or (ii) the net worth of which represents 10% or more of the
Consolidated Net Worth of the Borrower and the Consolidated
Subsidiaries, in each case determined on a consolidated basis, as
reflected in the financial statements most recently delivered pursuant
to Section 4.08(a)(ii) or (b)(ii) (or, if prior to the date of delivery
of any such financial statements, as determined as of the date of the
financial statements most recently delivered pursuant to Section
4.08(a) or (b)); provided, however, that the Excluded Subsidiaries
shall not, in any event, be deemed to be Significant Subsidiaries.
5
(s) Section 9.01 shall be further amended by adding the following
defined terms in the proper alphabetical order:
"Covered Subsidiaries" means all Subsidiaries of the Borrower
other than Excluded Subsidiaries.
"Excluded Subsidiaries" means NRG and each of its
Subsidiaries.
"Excluded Subsidiary Amendment Date" means the date of
Amendment No. 1 to this Agreement.
"Investment" of any Person means (a) any Capital Security,
evidence of Indebtedness or other security or instrument issued by any
other Person, (b) any loan, advance or other extension of credit to any
other Person, (c) any contribution to the capital of any other Person
or (d) any other investment in any other Person; provided that a
Guaranty of the Liabilities of any other Person or any payment pursuant
to such a Guaranty shall not, in any event, be deemed to constitute an
"Investment".
"Supermajority Banks" means, (a) so long as the Commitments
shall not have expired or been terminated, Banks having at least 67% of
the RC Loans and Letter of Credit Participations outstanding or, if
there are no RC Loans or Letter of Credit Participations outstanding,
at least 67% of the aggregate amount of the Commitments and (b) at any
time after the Commitments have expired or been terminated, Banks
having at least 67% of the Loans and Letter of Credit Participations
outstanding.
(t) Schedule 3.02 to the Credit Agreement shall be replaced with
Schedule 3.02 attached hereto.
(u) Schedule 4.08 to the Credit Agreement shall be replaced with
Schedules 4.08A and 4.08B attached hereto.
(v) Schedules 5.08 and 5.09 hereto shall be added as Schedules 5.08 and
5.09 to the Credit Agreement.
3. Representations and Warranties. In order to induce the Banks to
enter into this Amendment, the Borrower represents and warrants as follows:
(a) Each representation and warranty made in the Credit Agreement is
true and correct at and as of the date hereof after giving effect to this
Amendment.
(b) No Default has occurred and is continuing or would result from this
Amendment.
4. Conditions to Effectiveness. The amendments provided for in Section
2 above shall become effective as of the Effective Date, but shall not become
effective as of such date unless and until each of the following conditions
precedent shall have been satisfied:
(a) The Administrative Agent shall have received a copy of this
Amendment duly executed by the Borrower and the Required Banks; and
6
(b) All fees payable to the Administrative Agent, BNYCMI and the Banks
in connection with this Amendment, and all amounts payable pursuant to Section
8.02 of the Credit Agreement for which invoices have been delivered to the
Borrower on or prior to such date, shall have been paid in full.
5. Confirmation of Amended Agreement. The Credit Agreement as amended
by this Amendment is and shall continue to be in full force and effect and is
hereby in all respects confirmed, approved and ratified.
6. Governing Law. This Amendment shall, pursuant to New York General
Obligations Law Section 5-1401, be governed by the law of the State of New York.
7. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto were upon the same instrument.
8. Headings. Section headings in this Amendment are included herein for
convenience and reference only and shall not constitute a part of this Amendment
for any other purpose.
[The next page is the signature page]
7
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers all as of the date hereof.
XCEL ENERGY INC.
By:
--------------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
--------------------------------------------
Name:
Title:
BANK OF AMERICA, N.A.
By:
--------------------------------------------
Name:
Title:
CITICORP USA, INC.
By:
--------------------------------------------
Name:
Title:
BANK ONE, N.A.
By:
--------------------------------------------
Name:
Title:
Xcel Five-Year Amendment #1
THE BANK OF TOKYO-MITSUBISHI, LTD.
By:
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Name:
Title:
THE CHASE MANHATTAN BANK
By:
--------------------------------------------
Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT
New York and Grand Cayman Branches
By:
--------------------------------------------
Name:
Title:
By:
--------------------------------------------
Name:
Title:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By:
--------------------------------------------
Name:
Title:
By:
--------------------------------------------
Name:
Title:
Xcel Five-Year Amendment #1
MIZUHO CORPORATE BANK, LTD.
Chicago Branch
By:
--------------------------------------------
Name:
Title:
MELLON BANK, N.A.
By:
--------------------------------------------
Name:
Title:
SUMITOMO MITSUI BANKING CORPORATION
By:
--------------------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By:
--------------------------------------------
Name:
Title:
By:
--------------------------------------------
Name:
Title:
Xcel Five-Year Amendment #1
ABN AMRO BANK N.V.
By:
--------------------------------------------
Name:
Title:
By:
--------------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
--------------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By:
--------------------------------------------
Name:
Title:
AMARILLO NATIONAL BANK
By:
--------------------------------------------
Name:
Title:
Xcel Five-Year Amendment #1
Schedule 3.02
SCHEDULE OF SUBSIDIARIES
Schedule 4.08A
XCEL ENERGY INC.
CERTIFICATE AS TO FINANCIAL STATEMENTS
(INCLUDING EXCLUDED SUBSIDIARIES)
I, __________, [President, Vice President, Chief Financial Officer,
Controller, Treasurer, Assistant Treasurer] of Xcel Energy Inc., a Minnesota
corporation (the "Borrower"), hereby certify, pursuant to Section 4.08(c)(i) of
both the Five-Year Credit Agreement and the 364-Day Credit Agreement (the
"Agreements"), each dated as of __________, 2000 and among the Borrower, the
banks listed on the signature pages thereof, Bank of America, N.A. and Citicorp
USA, Inc., as Syndication Agents, and The Bank of New York, as Administrative
Agent, that:
1. (a) The accompanying [unaudited](1) consolidated financial
statements of the Borrower and the consolidated Subsidiaries as at __________
and for the [fiscal year][quarterly accounting period](2) ending __________, are
complete and correct and present fairly, in accordance with Generally Accepted
Accounting Principles (except for changes therein or departures therefrom
described below that have been approved in writing by _____________________, the
Borrower's current independent certified public accountants), the consolidated
financial position of the Borrower and the consolidated Subsidiaries as at the
end of such [fiscal year][quarterly period](2), and the consolidated results of
operations and cash flows for such [fiscal year][quarterly period, and for the
elapsed portion of the fiscal year ended with the last day of such quarterly
period](2), in each case on the basis presented [and subject only to normal
year-end auditing adjustments]1.
(b) Except as disclosed or reflected in such financial statements,
as at __________, neither the Borrower nor any Subsidiary had any Liability,
contingent or otherwise, or any unrealized or anticipated loss, that, singly or
in the aggregate, have had or might have a Materially Adverse Effect on the
Borrower and the consolidated Subsidiaries taken as a whole.
2. (a) The changes in and departures from Generally Accepted
Accounting Principles are as follows:
All such changes have been approved in writing by [insert name of Borrower's
current independent certified public accountants].
[(b) Attached as Annex A are [unaudited](1) consolidated financial
statements of the Borrower and the consolidated Subsidiaries as at __________
and for the [fiscal
year][quarterly accounting period](2) ending __________, which have been
prepared in accordance with Generally Accepted Accounting Principles without
giving effect to the changes referred to in Paragraph 2(a) of this Certificate
or any previous Certificate. Such financial statements are complete and correct
and present fairly, in accordance with Generally Accepted Accounting Principles,
the consolidated financial position of the Borrower and the consolidated
Subsidiaries as at the end of such [fiscal year][quarterly period](2), and the
consolidated results of operations and cash flows for such quarterly period, and
for the elapsed portion of the fiscal year ending with the last day of such
[fiscal year][quarterly period](2), in each case on the basis presented [and
subject only to normal year-end auditing adjustments](1).](3)
Dated:
----------------------------------------
[President, Vice President, Chief
Financial Officer, Controller,
Treasurer, Assistant Treasurer]
----------
1. Include only in the case of a certificate to be delivered with respect to
quarterly financial statements.
2. Include first alternative in the case of a certificate to be delivered
with respect to year-end financial statements; include second alternative
in the case of a certificate to be delivered with respect to quarterly
financial statements.
3. Paragraph (b) should be included in, and Annex A attached to, the
Certificate only if changes from Generally Accepted Accounting Principles
are specified in Paragraph 2(a) of this or any previous Certificate.
Xcel Five-Year Amendment #1
Schedule 4.08B
XCEL ENERGY INC.
CERTIFICATE AS TO FINANCIAL STATEMENTS (EXCLUDING EXCLUDED
SUBSIDIARIES) AND DEFAULTS
I, __________, [President, Vice President, Chief Financial Officer,
Controller, Treasurer, Assistant Treasurer] of Xcel Energy Inc., a Minnesota
corporation (the "Borrower"), hereby certify, pursuant to Section 4.08(c)(ii) of
both the Five-Year Credit Agreement and the 364-Day Credit Agreement (the
"Agreements"), each dated as of __________, 2000 and among the Borrower, the
banks listed on the signature pages thereof, Bank of America, N.A. and Citicorp
USA, Inc., as Syndication Agents, and The Bank of New York, as Administrative
Agent, that:
1. (a) The accompanying unaudited consolidated financial statements
of the Borrower and the Consolidated Subsidiaries as at __________ and for the
[fiscal year][quarterly accounting period](2) ending __________, are complete
and correct and present fairly, in accordance with Generally Accepted Accounting
Principles (except for (i) changes therein or departures therefrom described
below that have been approved in writing by _____________________, the
Borrower's current independent certified public accountants, and (ii) the
non-consolidation of the Excluded Subsidiaries and exclusion of equity
investments in Excluded Subsidiaries), the consolidated financial position of
the Borrower and the Consolidated Subsidiaries as at the end of such [fiscal
year][quarterly period](2), and the consolidated results of operations and cash
flows for such [fiscal year][quarterly period, and for the elapsed portion of
the fiscal year ended with the last day of such quarterly period](2), in each
case on the basis presented [and subject only to normal year-end auditing
adjustments](1).
(b) Except as disclosed or reflected in such financial statements,
as at __________, neither the Borrower nor any Subsidiary had any Liability,
contingent or otherwise, or any unrealized or anticipated loss, that, singly or
in the aggregate, have had or might have a Materially Adverse Effect on the
Borrower and the Consolidated Subsidiaries taken as a whole.
2. (a) The changes in and departures from Generally Accepted
Accounting Principles are as follows:
All such changes have been approved in writing by [insert name of Borrower's
current independent certified public accountants].
[(b) Attached as Annex A are [unaudited](1) consolidated financial
statements of the Borrower and the Consolidated Subsidiaries as at __________
and for the [fiscal year][quarterly accounting period](2) ending __________,
which have been prepared in accordance with Generally Accepted Accounting
Principles without giving effect to the changes referred to in Paragraph 2(a) of
this Certificate or any previous Certificate. Such financial statements are
complete and correct and present fairly, in accordance with Generally Accepted
Accounting Principles (except for the non-consolidation of the Excluded
Subsidiaries and exclusion of equity investments in Excluded Subsidiaries), the
consolidated financial position of the Borrower and the Consolidated
Subsidiaries as at the end of such [fiscal year][quarterly period](2), and the
consolidated results of operations and cash flows for such quarterly period, and
for the elapsed portion of the fiscal year ending with the last day of such
[fiscal year][quarterly period](2), in each case on the basis presented [and
subject only to normal year-end auditing adjustments](1).](3)
3. There follow the calculations required to establish whether or
not the Borrower was in compliance with Section 5.06 of the Agreements:
1. consolidated Indebtedness of the Borrower and the
Consolidated Subsidiaries
--------------------------------
2. aggregate amount of outstanding Liabilities of
Excluded Subsidiaries Guaranteed by the Borrower and
the Consolidated Subsidiaries
--------------------------------
3. sum of 1 and 2 ("Consolidated Indebtedness")
4. consolidated stockholders equity of the Borrower and
the Consolidated Subsidiaries
--------------------------------
5. minority interests
--------------------------------
6. sum of 4 and 5 ("Consolidated Net Worth")
--------------------------------
7. sum of 3 and 6 ("Consolidated Capitalization")
--------------------------------
8. amount of Mandatorily Redeemable Stock of the
Borrower and its Consolidated Subsidiaries
--------------------------------
9. amount of non-recourse Indebtedness of the Borrower
and its Consolidated Subsidiaries
--------------------------------
10. sum of 8 and 9
--------------------------------
11. 10% of Consolidated Capitalization
--------------------------------
12. lesser of 10 and 11
--------------------------------
13. consolidated Indebtedness minus 12
--------------------------------
14. consolidated Capitalization minus 12
--------------------------------
15. 13 divided by 14 ("Leverage Ratio")
--------------------------------
Xcel Five-Year Amendment #1
4. Based on an examination sufficient to enable me to make an
informed statement, no Default exists, including, in particular, any such
arising under the provisions of Article 4 of the Credit Agreement[, except the
following:](4)
Dated:
----------------------------------------
[President, Vice President, Chief
Financial Officer, Controller,
Treasurer, Assistant Treasurer]
----------
1. Include only in the case of a certificate to be delivered with respect to
quarterly financial statements.
2. Include first alternative in the case of a certificate to be delivered
with respect to year-end financial statements; include second alternative
in the case of a certificate to be delivered with respect to quarterly
financial statements.
3. Paragraph (b) should be included in, and Annex A attached to, the
Certificate only if changes from Generally Accepted Accounting Principles
are specified in Paragraph 2(a) of this or any previous Certificate.
4. Omit if none such exist; if any do exist, specify the same by Section,
give the date the same occurred, and the steps being taken by the Borrower
or a Subsidiary with respect thereto.
Xcel Five-Year Amendment #1
