Contract
Exhibit
10.2
______________
$350,000,000
Dated
as
of March 29, 2007
among
PUGET
SOUND ENERGY, INC.,
VARIOUS
FINANCIAL INSTITUTIONS,
and
XX
XXXXXX
XXXXX BANK, N.A.,
as
Administrative Agent, Swingline Lender
and an
LC Issuer,
UNION
BANK OF CALIFORNIA,
N.A.,
as Syndication Agent,
CITIBANK,
N.A., KEYBANK NATIONAL ASSOCIATION
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as
Co-Documentation Agents
JPMORGAN
SECURITIES INC.,
as
Co-Lead Arranger and Joint Book Runner
and
UNION
BANK OF CALIFORNIA,
N.A.,
as
Co-Lead Arranger and Joint Book Runner
Table
of Contents
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Page
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1
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ARTICLE
1 DEFINITIONS
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1
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1.1 Defined
Terms
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1
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1.2 Terms
Generally
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14
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1.3 Accounting
Terms
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14
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ARTICLE
2 THE CREDITS
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15
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2.1 Facility
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15
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2.2 Revolving
Loans.
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15
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2.3 Method
of Borrowing
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17
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2.4 Fees;
Reductions in Aggregate Commitment.
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17
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2.5 Minimum
Amount of Each Revolving Loan; Limitation on Eurodollar
Loans
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18
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2.6 Optional
Principal Payments
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18
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2.7 Changes
in Interest Rate, etc.
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18
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2.8 Rates
Applicable After Default
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18
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2.9 Method
of Payment
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19
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2.10 Noteless
Agreement; Evidence of Indebtedness.
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19
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2.11 Telephonic
Notices
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20
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2.12 Interest
Payment Dates; Interest and Fee Basis
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20
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2.13 Notification
of Revolving Loans, Interest Rates, Prepayments and Commitment
Reductions
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21
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2.14 Lending
Installations
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21
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2.15 Non-Receipt
of Funds by Administrative Agent
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21
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2.16 Facility
LCs.
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22
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2.17 Extension
of Facility Termination Date
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26
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2.18 Swingline
Loan Subfacility
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26
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2.19 Incremental
Facility
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28
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ARTICLE
3 YIELD PROTECTION; TAXES
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28
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3.1 Yield
Protection
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28
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3.2 Changes
in Capital Adequacy Regulations 29
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3.3 Availability
of Types of Revolving Loans
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30
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3.4 Funding
Indemnification
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30
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3.5 Taxes.
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31
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3.6 Statements;
Survival of Indemnity
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33
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3.7 Replacement
of Affected Lender
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33
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ARTICLE
4 CONDITIONS PRECEDENT
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33
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4.1 Effectiveness
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33
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4.2 Each
Credit Extension
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34
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ARTICLE
5 REPRESENTATIONS AND WARRANTIES
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35
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5.1 Corporate
Existence, etc
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35
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5.2 Litigation
and Contingent Obligations
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35
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5.3 No
Breach
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36
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5.4 Corporate
Action
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36
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5.5 Approvals
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36
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5.6 Use
of Proceeds
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36
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5.7 ERISA
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36
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5.8 Taxes
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37
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5.9 Material
Adverse Change
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37
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5.10 Financial
Statements
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37
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5.11 Environmental
Matters
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37
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5.12 Investment
Company Act
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37
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5.13 Subsidiaries
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37
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5.14 Accuracy
of Information
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38
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5.15 Compliance
with Laws, Etc
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38
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5.16 Insurance
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38
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5.17 Properties
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38
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5.18 Anti-Terrorism
Laws
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38
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5.19 Compliance
with OFAC Rules and Regulations
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38
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5.20 Compliance
with FCPA
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39
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ARTICLE
6 COVENANTS
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39
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6.1 Preservation
of Existence and Business
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39
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6.2 Preservation
of Property
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39
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6.3 Payment
of Obligations
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39
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6.4 Compliance
with Applicable Laws and Contracts
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40
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6.5 Preservation
of Loan Document Enforceability
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40
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6.6 Insurance
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40
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6.7 Use
of Proceeds
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40
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6.8 Visits,
Inspections and Discussions
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40
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6.9 Information
to Be Furnished
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40
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6.10 Liens
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41
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6.11 Debt
to Capitalization Ratio
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43
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6.12 Merger
and Consolidation
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43
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6.13 Disposition
of Assets
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43
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6.14 Transactions
with Affiliates
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43
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6.15 Investments
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44
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ARTICLE
7 DEFAULTS
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44
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ARTICLE
8 ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
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46
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8.1 Acceleration.
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47
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8.2 Amendments
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47
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8.3 Preservation
of Rights
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48
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ARTICLE
9 GENERAL PROVISIONS
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48
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9.1 Survival
of Representations
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48
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9.2 Governmental
Regulation
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48
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9.3 Headings
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48
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9.4 Entire
Agreement
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48
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9.5 Several
Obligations; Benefits of this Agreement
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48
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9.6 Expenses;
Indemnification.
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49
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9.7 Numbers
of Documents
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50
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9.8 Severability
of Provisions
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50
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9.9 Nonliability
of Lenders
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50
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9.10 Confidentiality
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50
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9.11 Non-Reliance
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51
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9.12 Disclosure
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51
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9.13 Counterparts
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51
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ARTICLE
10 THE ADMINISTRATIVE AGENT
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52
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10.1 Appointment;
Nature of Relationship
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52
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10.2 Powers
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53
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10.3 General
Immunity
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53
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10.4 No
Responsibility for Loans, Recitals, etc.
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53
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10.5 Action
on Instructions of Lenders
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53
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10.6 Employment
of Agents and Counsel
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54
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10.7 Reliance
on Documents; Counsel
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54
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10.8 Administrative
Agent’s Reimbursement and Indemnification
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54
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10.9 Notice
of Default
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54
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10.10
Rights as Lender
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55
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10.11
Lender Credit Decision
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55
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10.12
Successor Administrative Agent
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55
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10.13
Administrative Agent’s Fee
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56
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10.14
Delegation to Affiliates
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56
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10.15
Other Agents
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56
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ARTICLE
11 SETOFF; PAYMENTS
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56
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11.1 Setoff
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56
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11.2 Ratable
Payments
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57
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ARTICLE
12 BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
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57
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12.1 Successors
and Assigns
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57
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12.2 Participations.
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58
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12.3 Assignments.
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59
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12.4 Tax
Treatment
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60
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ARTICLE
13 NOTICES
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60
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13.1 Notices
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60
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13.2 Change
of Address
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60
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ARTICLE
14 CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL
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60
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14.1 CHOICE
OF LAW
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60
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14.2 CONSENT
TO JURISDICTION
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61
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14.3 WAIVER
OF JURY TRIAL
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61
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Schedule
1: Pricing
Schedule
Schedule
2: Commitments
Schedule
5.10: Financial
Statements
Schedule
5.13: Subsidiaries
Schedule
6.10: Existing
Liens
Schedule
6.15: Existing
Investments
Exhibit
A: Revolving
Note
Exhibit
B: Borrowing
Notice
Exhibit
C: Conversion/Continuation
Notice
Exhibit
D: Compliance
Certificate
Exhibit
E: Assignment
and Assumption
Exhibit
F: Account
Designation Letter
Exhibit
G: Swingline
Note
This
Credit Agreement dated as of March 29, 2007 is by and among Puget Sound Energy,
Inc., a Washington corporation, the Lenders, and JPMorgan Chase Bank, N.A.,
a
national banking association having its principal office in New York, New
York,
as Swingline Lender, as an LC Issuer and as Administrative Agent. The parties
hereto agree as follows:
RECITALS
A. The
Borrower has requested that the Lenders make loans and other financial
accommodations to the Borrower in the amount of up to $350,000,000 as more
particularly described herein.
B. The
Lenders have agreed to make such loans and other financial accommodations
to the
Borrower on the terms and conditions contained herein.
ARTICLE
1
DEFINITIONS
1.1 Defined
Terms.
As used
in this Agreement:
“Account
Designation Letter”
means
the Notice of Account Designation Letter dated the Closing Date from the
Borrower to the Administrative Agent in substantially the form attached hereto
as Exhibit F.
“Acquisition”
means
any transaction, or series of related transactions, consummated on or after
the
date hereof by which the Borrower and/or any of its Subsidiaries directly
or
indirectly (i) acquires any ongoing business or all or substantially all
of the
assets of any Person (or a division thereof) engaged in any ongoing business,
whether through a purchase of assets, a merger or otherwise, (ii) acquires
control of securities of a Person engaged in an ongoing business representing
more than 50% of the ordinary voting power for the election of directors
or
other governing position if the business affairs of such Person are managed
by a
board of directors or other governing body or (iii) acquires control of more
than 50% of the ownership interest in any partnership, joint venture, limited
liability company, business trust or other Person engaged in an ongoing business
that is not managed by a board of directors or other governing
body.
“Administrative
Agent”
means
JPMorgan in its capacity as contractual representative of the Lenders pursuant
to Article 10, and not in its individual capacity as a Lender, and any
successor Administrative Agent appointed pursuant to
Article 10.
“Affiliate”
of
any
Person means any other Person directly or indirectly controlling, controlled
by
or under common control with such Person. A Person shall be deemed to control
another Person if the controlling Person owns 10% or more of any class of
voting
securities (or other ownership interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership
of
stock, by contract or otherwise.
“Aggregate
Commitment”
means
the aggregate of the Commitments of all the Lenders, as reduced from time
to
time pursuant to the terms hereof.
“Aggregate
Outstanding Credit Exposure”
means,
at any time, the aggregate of the Outstanding Credit Exposures of all the
Lenders.
“Agreement”
means
this Credit Agreement.
“Agreement
Accounting Principles”
means
generally accepted accounting principles in the United States as in effect
from
time to time.
“Alternate
Base Rate”
means,
for any day, a rate of interest per
annum
equal to
the higher of (i) the Reference Rate for such day and (ii) the sum of
the Federal Funds Effective Rate for such day plus 0.5% per
annum.
“Applicable
Commitment Fee Rate”
means
the applicable percentage rate per
annum
determined from time to time in accordance with the Pricing
Schedule.
“Applicable
Utilization Fee Rate”
means
the applicable percentage rate per
annum
determined from time to time in accordance with the Pricing
Schedule.
“Applicable
Eurodollar Margin”
means,
with respect to Eurodollar Loans, the applicable percentage rate per
annum
determined from time to time in accordance with the Pricing
Schedule.
“Applicable
LC Fee Rate”
means,
the applicable percentage rate per
annum
determined from time to time in accordance with the Pricing
Schedule.
“Arrangers”
means,
collectively, X.X. Xxxxxx Securities Inc. and Union Bank of California, N.A.,
in
their capacity as Co-Lead Arrangers and Joint Book Runners.
“Article”
means
an article of this Agreement unless another document is specifically
referenced.
“Authorized
Officer”
means
any of the President, the Chief Executive Officer, the Chief Financial Officer,
any Vice President, the Treasurer or any Assistant Treasurer of the Borrower,
acting singly.
“Bankruptcy
Code”
means
the Bankruptcy Code in Title 11 of the United States Code, as amended,
modified, succeeded or replaced from time to time.
“Benefit
Plan”
means
an employee pension benefit plan which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Code as
to which the Borrower or any member of the Controlled Group may have any
liability.
“Borrower”
means
Puget Sound Energy, Inc., a Washington corporation.
“Borrowing
Date”
means
a
date on which a Loan is made hereunder.
“Borrowing
Notice”
is
defined in Section 2.2.3.
“Business
Day”
means
(i) with respect to any borrowing or payment of, or rate selection for,
Eurodollar Loans, a day (other than a Saturday or Sunday) on which banks
generally are open in North Carolina and New York for the conduct of
substantially all of their commercial lending activities, interbank wire
transfers can be made on the Fedwire system and dealings in U.S. dollars
are
carried on in the London interbank market and (ii) for all other purposes,
a day (other than a Saturday or Sunday) on which banks generally are open
in
North Carolina and New York for the conduct of substantially all of their
commercial lending activities and interbank wire transfers can be made on
the
Fedwire system.
“Capitalized
Lease”
of
a
Person means any lease of Property by such Person as lessee which would be
capitalized on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
“Capitalized
Lease Obligations”
of
a
Person means the amount of the obligations of such Person under Capitalized
Leases which would be shown as a liability on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
“Change”
is
defined in Section 3.2.
“Change
in Control”
means
the acquisition, directly or indirectly, by any Person, or two or more Persons
acting in concert, of beneficial ownership (within the meaning of Rule 13d-3
of
the SEC under the Securities Exchange Act of 1934) of 20% or more (by number
of
votes) of the outstanding shares of voting stock of the Borrower.
“Closing
Date”
means
the date on which this Agreement becomes effective pursuant to
Section 4.1.
“Code”
means
the Internal Revenue Code of 1986.
“Commitment”
means,
for each Lender, the obligation of such Lender to make Revolving Loans to,
and
to participate in Swingline Loans made to the Borrower and Facility LCs issued
upon the application of the Borrower, in an aggregate amount not exceeding
the
amount set forth opposite such Lender’s name on Schedule 2 or as set forth in
any Lender Assignment relating to any assignment that has become effective
pursuant to Section 12.3.3, as such amount may be modified from time to
time pursuant to the terms hereof.
“Commitment
Fee”
is
defined in Section 2.4.1.
“Consolidated
Indebtedness”
means
at any time all Indebtedness of the Borrower and its Subsidiaries calculated
on
a consolidated basis as of such time.
“Contingent
Obligation”
of
a
Person means any agreement, undertaking or arrangement by which such Person
assumes, guarantees, endorses, contingently agrees to purchase or provide
funds
for the payment of, or otherwise becomes or is contingently liable upon,
the
obligation or liability of any other Person, or agrees to maintain the net
worth
or working capital or other financial condition of any other Person, or
otherwise assures any creditor of such other Person against loss, including
any
comfort letter, operating agreement, application for a Letter of Credit or
the
obligations of any such Person as general partner of a partnership with respect
to the liabilities of the partnership.
“Controlled
Group”
means
all members of a controlled group of corporations or other business entities
and
all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower or any of its Subsidiaries, are treated
as a
single employer under Section 414 of the Code.
“Conversion/Continuation
Notice”
is
defined in Section 2.2.4.
“Credit
Extension”
means
the making of a Revolving Loan, Swingline Loan or the issuance of a Facility
LC
hereunder.
“Credit
Extension Date”
means
the Borrowing Date for a Loan or the issuance date for a Facility
LC.
“Default”
means
an event described in Article 7.
“Environmental
Laws”
means
any and all federal, state, local and foreign laws, judicial decisions,
regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions,
permits, concessions, grants, franchises, licenses, agreements and other
governmental restrictions relating to (i) the protection of the
environment, (ii) the effect of the environment on human health,
(iii) emissions, discharges or releases of pollutants, contaminants,
hazardous substances or wastes into or onto surface water, ground water or
land,
or (iv) the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
“ERISA”
means
the Employee Retirement Income Security Act of 1974 and any rule or regulation
issued thereunder.
“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 Section 414(b), (c), (m) or (o) of the Code of which
such first Person is a member.
“Eurodollar
Base Rate”
means,
with respect to a Eurodollar Loan for the relevant Interest Period, the
applicable British Bankers Association Libor Rate for deposits in U.S. dollars
appearing on page 3750 of the Moneyline Telerate screen as of 11:00 a.m.
(London
time) two Business Days prior to the first day of such Interest Period, and
having a maturity equal to such Interest Period;
provided
that
(i) if page 3750 of the Moneyline Telerate screen is not available to the
Administrative Agent for any reason, the applicable Eurodollar Base Rate
for the
relevant Interest Period shall instead be the applicable British Bankers
Association Libor Rate for deposits in U.S. dollars as reported by any other
generally recognized financial information service as of 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period, and
having a maturity equal to such Interest Period, and (ii) if no such
British Bankers Association Libor Rate is available to the Administrative
Agent,
the applicable Eurodollar Base Rate for the relevant Interest Period shall
instead be the rate determined by the Administrative Agent to be the rate
at
which JPMorgan or one of its Affiliate banks offers to place deposits in
U.S.
dollars with first-class banks in the London interbank market at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, in the approximate amount of JPMorgan’s relevant Eurodollar
Loan and having a maturity equal to such Interest Period.
“Eurodollar
Loan”
means
a
Loan which, except as otherwise provided in Section 2.8, bears interest by
reference to the Eurodollar Rate.
“Eurodollar
Rate”
means,
with respect to a Eurodollar Loan for the relevant Interest Period, the quotient
of (i) the Eurodollar Base Rate applicable to such Interest Period, divided
by (i) one minus the Reserve Requirement (expressed as a decimal)
applicable to such Interest Period.
“Excluded
Taxes”
means,
in the case of each Lender or applicable Lending Installation and the
Administrative Agent, taxes imposed on its overall pre-tax net or gross income,
and franchise taxes imposed on it by (i) the jurisdiction under the laws of
which such Lender or the Administrative Agent is incorporated or organized
or
(ii) the jurisdiction in which the Administrative Agent’s or such Lender’s
principal executive office or such Lender’s applicable Lending Installation is
located;
provided
that any
withholding taxes imposed by the United States of America on amounts payable
by
the Borrower under this Agreement or any other Loan Document shall not in
any
case be considered “Excluded Taxes.”
“Exhibit”
refers
to an exhibit to this Agreement, unless another document is specifically
referenced.
“Extension
Request”
is
defined in Section 2.17.
“Facility
LC”
is
defined in Section 2.16.1.
“Facility
LC Application”
is
defined in Section 2.16.3.
“Facility
Termination Date”
means
April 4, 2012, any later date as may be specified as the Facility Termination
Date in accordance with Section 2.17 or any earlier date on which the
Aggregate Commitment is reduced to zero or otherwise terminated pursuant
to the
terms hereof.
“Federal
Funds Effective Rate”
means,
for any day, an interest rate per
annum
equal to
the weighted average of the rates on overnight Federal funds transactions
with
members of the Federal Reserve System arranged by Federal funds brokers on
such
day, as published for such day (or, if such day is not a Business Day, for
the
immediately preceding Business Day) by the Federal Reserve Bank of New York,
or,
if such rate is not so published for any day which is a Business Day, the
average of the quotations at approximately 10:00 a.m. (New York time) on
such
day on such transactions received by the Administrative Agent from three
Federal
funds brokers of recognized standing selected by the Administrative Agent
in its
sole discretion.
“Fee
Letter”
means
the letter agreement dated March 9, 2007 between the Borrower and the
Administrative Agent concerning up-front fees payable to the
Lenders.
“Floating
Rate Loan”
means
a
Loan which, except as otherwise provided in Section 2.8, bears interest by
reference to the Alternate Base Rate.
“FRB”
means
the Board of Governors of the Federal Reserve System.
“Governmental
Approval”
means
any authorization, consent, approval, license or exception of, registration
or
filing with, or report or notice to, any governmental unit.
“Hybrid
Securities”
means
(a) the outstanding principal amount of 8.231% subordinated debentures due
June
1, 2027 issued by the Borrower on June 6, 1997 and purchased with the proceeds
of trust preferred securities, (b) the outstanding principal amount of other
subordinated debentures issued by the Borrower and purchased with the proceeds
of trust preferred securities that are similar in structure to this described
in
clause (a), and (c) any trust preferred securities, or deferrable interest
subordinated debt with a maturity of at least 20 years at the time issued
by the
Borrower, or any business trusts, limited liability companies, limited
partnerships (or similar entities) (i) all of the common equity, general
partner
or similar interests of which are owned (either directly or indirectly through
one or more wholly owned Subsidiaries) at all times by the Borrower or any
of
its Subsidiaries, (ii) that have been formed for the purpose of issuing hybrid
securities and (iii) substantially all the assets of which consist of (A)
subordinated debt of the Borrower or a Subsidiary of the Borrower, as the
case
may be, and (B) payments made form time to time on subordinated
debt.
“Indebtedness”
of
a
Person means such Person’s (i) obligations for borrowed money,
(ii) obligations representing the deferred purchase price of Property or
services (other than accounts payable arising in the ordinary course of such
Person’s business payable on terms customary in the trade),
(iii) obligations, whether or not assumed, secured by Liens or payable out
of the proceeds or production from Property now or hereafter owned or acquired
by such Person, (iv) obligations which are evidenced by notes, bankers’
acceptances, or other instruments, (v) obligations to purchase accounts,
securities or other Property arising out of or in connection with the sale
of
the same or substantially similar accounts, securities or Property,
(vi) Capitalized Lease Obligations, (vii) other obligations for
borrowed money or other financial accommodation which in accordance with
Agreement Accounting Principles would be shown as a liability on the
consolidated balance sheet of such Person, (viii) net liabilities under
interest-rate swap, exchange, cap and other such agreements, (ix) Synthetic
Lease Obligations (excluding any such obligations existing on the date hereof
pursuant to the Borrower’s lease of two combustion turbines for its
Fredonia 3 and 4 electric generating facility), (x) obligations
in connection with other transactions (excluding any lease that is treated
as an
operating lease under Agreement Accounting Principles) which are the functional
equivalent, or take the place, of borrowing but which do not constitute a
liability on the consolidated balance sheet of such Person and
(xi) Contingent Obligations;
provided
that,
except for purposes of Section 7.5, the following shall not constitute
“Indebtedness”: (a) obligations with respect to Hybrid Securities;
(b) obligations arising under Qualified Receivables Transactions;
(c) obligations with respect to preferred stock of the Borrower outstanding
on the date hereof; and (d) obligations with respect to preferred stock of
the Borrower issued after the date hereof that is Subordinated.
“Interest
Period”
means,
with respect to a Eurodollar Loan, a period of one, two, three or six months
commencing on a Business Day selected by the Borrower pursuant to this
Agreement. Each Interest Period shall end on the day which corresponds
numerically to such date one, two, three or six months thereafter;
provided
that, if
there is no such numerically corresponding day in such next, second, third
or
sixth succeeding month, such Interest Period shall end on the last Business
Day
of such next, second, third or sixth succeeding month. If an Interest Period
would otherwise end on a day which is not a Business Day, such Interest Period
shall end on the next succeeding Business Day;
provided,
further
that, if
said next succeeding Business Day falls in a new calendar month, such Interest
Period shall end on the immediately preceding Business Day.
“Investment”
means
(i) any loan, advance (other than any commission, travel or similar advance
to
an officer or employee made in the ordinary course of business), extension
of
credit (other than accounts receivable arising in the ordinary course of
business on terms customary in the trade) or contribution of capital; (ii)
any
stock, bond, mutual fund, partnership interest, note, debenture or other
such
interest; (iii) any deposit account or certificate of deposit; and (iv) any
structured note, derivative financial instrument or other such instrument
or
contract.
“JPMorgan”
means
JPMorgan Chase Bank, N.A., a national banking association.
“LC
Fee”
is
defined in Section 2.16.4.
“LC
Fronting Fee”
is
defined in Section 2.16.4.
“LC
Issuer”
means
either JPMorgan or another Lender selected by the Borrower to be another
issuer
of Facility LCs (or any Affiliate of either such Person designated thereby),
in
each case in its capacity as issuer of one or more Facility LCs hereunder,
as
selected by the Borrower in its sole discretion with respect to each Facility
LC
requested by the Borrower.
“LC
Obligations”
means,
at any time, the sum, without duplication, of (i) the maximum aggregate
undrawn amount of all Facility LCs outstanding at such time, plus (ii) the
aggregate unpaid amount of all Reimbursement Obligations at such
time.
“LC
Payment Date”
is
defined in Section 2.16.5.
“Lender
Assignment”
is
defined in Section 12.3.1.
“Lenders”
means
the lending institutions listed on the signature pages of this Agreement,
including JPMorgan and any other Lender selected by the Borrower to issue
Facility LCs, if any, in their capacities as LC Issuers.
“Lending
Installation”
means,
with respect to a Lender, the Swingline Lender, an LC Issuer or the
Administrative Agent, the office, branch or Affiliate of such Lender, Swingline
Lender or LC Issuer or the Administrative Agent listed on the signature pages
hereof or on a Schedule or otherwise selected by such Lender, Swingline Lender
or LC Issuer or the Administrative Agent pursuant to
Section 2.14.
“Letter
of Credit”
of
a
Person means a letter of credit or similar instrument which is issued upon
the
application of such Person or upon which such Person is an account party
or for
which such Person is in any way liable.
“LIBOR
Market Index Rate Loan”
means a
Loan which, except as otherwise provided in Section 2.8, bears interest by
reference to the LIBOR Market Index Rate.
“LIBOR
Market Index Rate”
means,
for any day, the 30-day rate of interest per annum 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) on such day,
or if such day is not a London business day, then the immediately preceding
London business day (or if not so reported, then as determined by the
Administrative Agent from another recognized source or interbank quotation),
or
another rate as agreed to by the Administrative Agent and the
Borrower.
“Lien”
means
any lien (statutory or other), mortgage, security interest, pledge,
hypothecation, assignment for security, deposit arrangement, encumbrance,
preference, priority or other preferential arrangement of any kind or nature
whatsoever (including the interest of a vendor or lessor under any conditional
sale, Capitalized Lease or other title-retention agreement).
“Loan”
means
any Revolving Loan or Swingline Loan.
“Loan
Documents”
means
this Agreement, each Note issued pursuant to Section 2.10, each Facility LC
Application and the Fee Letter.
“Mandatory
Borrowing”
is
defined in Section 2.18.2.
“Material
Adverse Effect”
means
a
material adverse effect on (i) the business, Property, condition (financial
or otherwise), operations or prospects of the Borrower and its Subsidiaries
taken as a whole, (ii) the ability of the Borrower to perform its
obligations under the Loan Documents or (iii) the validity or
enforceability of any of the Loan Documents with respect to and against the
Borrower.
“Material
Indebtedness”
is
defined in Section 7.5.
“Modify”
and
“Modification”
are
defined in Section 2.16.1.
“Mortgages”
means,
collectively, (i) the First and Refunding Mortgage dated as of June 2,
1924 issued by the Borrower (as successor to Puget Sound Power & Light
Company) in favor of U.S. Bank National Association (as successor to State
Street Bank and Trust Company, as successor to Old Colony Trust Company),
as
trustee, and (ii) the Indenture of First Mortgage dated as of April 1,
1957 issued by the Borrower (as successor to Puget Sound Power & Light
Company) in favor of BNY Midwest Trust Company (as successor to Xxxxxx Trust
and
Savings Bank), as trustee.
“Multiemployer
Benefit Plan”
means
a
Benefit Plan maintained pursuant to a collective bargaining agreement or
any
other arrangement to which the Borrower or any member of the Controlled Group
is
a party to which more than one employer is obligated to make
contributions.
“Net
Worth”
means
the Borrower’s consolidated shareholders’ equity.
“Non-U.S.
Lender”
is
defined in Section 3.5(iv).
“Notes”
means,
collectively, the Revolving Notes and the Swingline Note.
“Obligations”
means
all unpaid principal of and accrued and unpaid interest on the Loans, all
Reimbursement Obligations, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower to the
Lenders
or to any Lender, the Administrative Agent, the Swingline Lender or any LC
Issuer or any indemnified party arising under the Loan Documents.
“OFAC”
means
the U.S. Department of the Treasury’s Office of Foreign Assets
Control.
“Original
Agreement”
is
defined in Recital A.
“Other
Taxes”
is
defined in Section 3.5(ii).
“Outstanding
Credit Exposure”
means,
as to any Lender at any time, the sum of (i) the aggregate principal amount
of its Revolving Loans outstanding at such time plus (ii) an amount equal
to its Pro Rata Share of the LC Obligations and Swingline Loans at such
time.
“Participants”
is
defined in Section 12.2.1.
“Patriot
Act”
is
defined in Section 9.15.
“Payment
Date”
means
the last day of each calendar quarter.
“PBGC”
means
the Pension Benefit Guaranty Corporation.
“Permitted
Acquisition”
means
an Acquisition (i) that has been recommended or approved by the board of
directors or other governing body of the Person that is the object of such
Acquisition, (ii) that occurs when no Default or Unmatured Default exists,
(iii)
after giving effect to which (a) no Default or Unmatured Default will exist
and
(b) the Borrower will be in pro
forma
compliance with the financial covenant set forth in Section 6.11 (assuming
that
such Acquisition had occurred on the last day of the fiscal quarter most
recently ended from the date that is one year prior to the date of such
Acquisition), and (iv) that is of a Person in the same general line of business
as the Borrower and its Subsidiaries.
“Person”
means
any natural person, corporation, firm, joint venture, partnership, limited
liability company, association, enterprise, trust or other entity or
organization, or any government or political subdivision or any agency,
department or instrumentality thereof.
“Plan”
means
an employee pension benefit plan which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Code as
to which the Borrower or any member of the Controlled Group may have any
liability.
“Pricing
Schedule”
means
Schedule 1.
“Property”
of
a
Person means any and all property, whether real, personal, tangible, intangible
or mixed, of such Person (including equity interests in other Persons), and
any
and all other assets owned, leased or operated by such Person, including
any
interest in any of the foregoing.
“Pro
Rata Share”
means,
with respect to a Lender, a percentage equal to such Lender’s Commitment divided
by the Aggregate Commitment.
“Purchasers”
is
defined in Section 12.3.1.
“Qualified
Receivables Transaction”
means
any transaction or series of transactions that may be entered into by the
Borrower or any Subsidiary pursuant to which the Borrower or any Subsidiary
may
sell, convey, pledge or otherwise transfer to a newly-formed Subsidiary or
other
special purpose entity, or any other Person, any accounts receivable (including
chattel paper, instruments and general intangibles) or notes receivable and
the
rights and certain other property related thereto;
provided
that the
Receivables Transaction Attributed Indebtedness incurred in all such
transactions or series of transactions does not exceed $200,000,000 at any
time
outstanding. For the avoidance of doubt, the transactions contemplated by
the
Loan and Servicing Agreement dated as of December 20, 2005 by and among PSE
Funding, Inc., the Borrower, as servicer, the purchasers party thereto from
time
to time and JPMorgan Chase Bank, N.A., as program agent, shall constitute
a
“Qualified Receivables Transaction.”
“Receivables
Transaction Attributed Indebtedness”
means,
with respect to any Qualified Receivables Transaction on any date of
determination, the unrecovered purchase price on such date of all assets
sold,
conveyed, pledged or otherwise transferred by the Borrower or any Subsidiary
to
the third-party conduit entity or other receivables credit provider under
such
Qualified Receivables Transaction.
“Reference
Rate”
means
the variable rate of interest per
annum
established by JPMorgan from time to time as its “reference rate.” Such
“reference rate” is set by JPMorgan as a general reference rate of interest,
taking into account such factors as JPMorgan may deem appropriate, it being
understood that many of JPMorgan’s commercial or other loans are priced in
relation to such rate, that it is not necessarily the lowest or best rate
actually charged to any customer and that JPMorgan may make various commercial
or other loans at rates of interest having no relationship to such rate.
For
purposes of this Agreement, each change in the Reference Rate shall be effective
as of the opening of business on the date announced as the effective date
of any
change in such “reference rate.”
“Regulation D”
means
Regulation D of the FRB as from time to time in effect and any other
regulation or official interpretation of the FRB relating to reserve
requirements applicable to member banks of the Federal Reserve
System.
“Regulation U”
means
Regulation U of the FRB as from time to time in effect and any other
regulation or official interpretation of the FRB relating to the extension
of
credit by banks for the purpose of purchasing or carrying margin stocks
applicable to member banks of the Federal Reserve System.
“Reimbursement
Obligations”
means,
at any time, the aggregate of all obligations of the Borrower then outstanding
under Section 2.16 to reimburse the LC Issuers for amounts paid by the LC
Issuers in respect of any one or more drawings under Facility LCs.
“Reportable
Event”
means
a
reportable event as defined in Section 4043 of ERISA and the regulations
issued under such section, with respect to a Plan excluding such events as
to
which the PBGC has by regulation waived the requirement of Section 4043(a)
of ERISA that it be notified within 30 days of the occurrence of such
event;
provided
that a
failure to meet the minimum funding standard of Section 412 of the Code and
of Section 302 of ERISA shall be a Reportable Event regardless of the
issuance of any such waiver of the notice requirement in accordance with
either
Section 4043(a) of ERISA or Section 412(d) of the Code.
“Required
Lenders”
means
Lenders in the aggregate having more than 50% of the Aggregate Commitment
or, if
the Aggregate Commitment has been terminated, Lenders in the aggregate holding
more than 50% of the Aggregate Outstanding Credit Exposure.
“Reserve
Requirement”
means
the aggregate of the maximum reserve percentages (including any marginal,
special, emergency or supplemental reserves), expressed as a decimal,
established by the FRB to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as “Eurocurrency liabilities” in
Regulation D). Such reserve percentages shall include those imposed pursuant
to
Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of
or
credit for proration, exemptions or offsets that may be available from time
to
time to any Lender under Regulation D. The Reserve Requirement shall be adjusted
automatically on and as of the effective date of any change in any such reserve
percentage.
“Response
Date”
is
defined in Section 2.17.
“Revolving
Loan”
means,
with respect to a Lender, any loan made by such Lender pursuant to
Section 2.2 (or in the case of a loan made pursuant to Section 2.2.4, any
conversion or continuation thereof).
“Revolving
Note”
means
a
promissory note, substantially in the form of Exhibit A, issued at the request
of a Lender pursuant to Section 2.10 to evidence its Revolving
Loans.
“Risk-Based
Capital Guidelines”
is
defined in Section 3.2.
“Sanctioned
Country”
means a
country subject to a sanctions program identified on the list maintained
by OFAC
and available at xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxx/xxxxxxxxx/xxxxx.xxxx,
or as
otherwise published from time to time.
“Sanctioned
Person”
means
(i) a Person named on the list of “Specially Designated Nationals and Blocked
Persons” maintained by OFAC available at xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxx/xxx/xxxxx.xxxx,
or as
otherwise published from time to time, or (ii) (a) an agency of the government
of a Sanctioned Country, (b) an organization controlled by a Sanctioned Country,
or (c) a person resident in a Sanctioned Country, to the extent subject to
a
sanctions program administered by OFAC.
“Schedule”
refers
to a schedule to this Agreement, unless another document is specifically
referenced.
“SEC”
means
the Securities and Exchange Commission.
“Section”
means
a
numbered section of this Agreement, unless another document is specifically
referenced.
“Significant
Subsidiary”
means
a
“significant subsidiary” (as defined in Regulation S-X of the SEC) of the
Borrower.
“Subordinated”
means,
with respect to any debt or equity securities or other instruments of any
sort,
that the principal or equivalent thereof is not required to be paid in whole
or
in part, and after the occurrence of any event of any type described in
Section 7.6 or 7.7 cannot be paid in whole or in part, unless and
until the Obligations (including the obligation to provide cash collateral
pursuant to the last sentence of Section 2.16.1) have been paid in full and
the
Commitments have terminated.
“Subsidiary”
of
a
Person means (i) any corporation more than 50% of the outstanding
securities of which having ordinary voting power shall at the time be owned
or
controlled, directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture
or similar business organization more than 50% of the ownership interests
of
which having ordinary voting power shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a “Subsidiary”
shall mean a Subsidiary of the Borrower.
“Substantial
Portion”
means,
with respect to a Person and its Subsidiaries, Property which
(i) represents more than 10% of the consolidated assets of such Person and
its Subsidiaries as would be shown in the consolidated financial statements
of
such Person and its Subsidiaries as at the beginning of the twelve-month
period
ending with the month in which such determination is made, or (ii) is
responsible for more than 10% of the consolidated net sales or of the
consolidated net income of such Person and its Subsidiaries as reflected
in the
financial statements referred to in clause (i) above.
“Swingline
Committed Amount”
is
defined in Section 2.10.
“Swingline
Lender”
means
JPMorgan.
“Swingline
Loan”
means,
with respect to the Swingline Lender, any loan made by the Swingline Lender
pursuant to Section 2.18.
“Swingline
Note”
means
a
promissory note, substantially in the form of Exhibit G, issued to the Swingline
Lender pursuant to Section 2.10 to evidence its Swingline
Loans.
“Synthetic
Lease Obligation”
means
the monetary obligation of a Person under (i) a so-called synthetic,
off-balance-sheet or tax-retention lease or (ii) any other agreement
(excluding any lease that is treated as an operating lease under Agreement
Accounting Principles) for the use or possession of property creating
obligations that do not appear on the balance sheet of such Person but that,
upon the insolvency or bankruptcy of such Person, would be characterized
as the
indebtedness of such Person (without regard to accounting
treatment).
“Taxes”
means
any and all present or future taxes, duties, levies, imposts, deductions,
charges or withholdings, and any and all liabilities with respect to the
foregoing, but excluding
Excluded
Taxes.
“Tax-Free
Debt”
means
Indebtedness of the Borrower to a state, territory or possession of the United
States or any political subdivision thereof issued in a transaction in which
such state, territory, possession or political subdivision issued obligations
the interest on which is excludable from gross income pursuant to the provisions
of Section 103 of the Code (or similar provisions), as in effect at the
time of issuance of such obligations, and debt to a bank issuing a Letter
of
Credit with respect to the principal of or interest on such
obligations.
“Term
Out Maturity Date”
is
defined in Section 2.1.3.
“Total
Capitalization”
means,
at any time, the sum of the following for the Borrower and its Subsidiaries,
determined on a consolidated basis in accordance with Agreement Accounting
Principles (without duplication and excluding minority interests in
Subsidiaries):
(i) Net
Worth; plus
(ii) the
aggregate obligations of the Borrower with respect to the Hybrid Securities;
plus
(iii) the
aggregate obligations
of the Borrower with respect to any preferred stock of the Borrower, including
any preferred stock subject to mandatory redemption; plus
(iv) the
aggregate outstanding principal amount of all Consolidated
Indebtedness.
“Type”
means
with respect to any Loan, its nature as a Floating Rate Loan, a Eurodollar
Loan
or a LIBOR Market Index Rate Loan.
“Unmatured
Default”
means
an event which but for the lapse of time or the giving of notice, or both,
would
constitute a Default.
“Utilization
Fee”
is
defined in Section 2.4.1.
1.2 Terms
Generally.
The
definitions of terms herein shall apply equally to the singular and plural
forms
of the terms defined. Whenever the context requires, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without
limitation.” The word “will” shall be construed to have the same meaning and
effect as the word “shall.” Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document
herein
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, restated, supplemented or otherwise modified
(subject to any restriction on such amendments, restatements, supplements
or
modifications set forth in any Loan Document), (ii) any reference herein to
any Person shall be construed to include such Person’s successors and assigns
(subject to any restrictions on assignment set forth in any Loan Document),
(iii) the words “herein,” “hereof” and “hereunder,” and words of similar
import, shall be construed to refer to this Agreement in its entirety and
not to
any particular provision hereof, (iv) any reference herein to any law or
regulation shall, unless otherwise specified, refer to such law or regulation
as
amended, restated, replaced or otherwise modified from time to time, and
(v) the words “asset” and “property” shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets
and properties, including cash, securities, accounts and contract
rights.
1.3 Accounting
Terms.
Except
as otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with Agreement Accounting
Principles;
provided
that, if
the Borrower notifies the Administrative Agent that the Borrower requests
an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in Agreement Accounting Principles or in
the
application thereof on the operation of such provision (or if the Administrative
Agent notifies the Borrower that the Required Lenders request an amendment
to
any provision hereof for such purpose), regardless of whether any such notice
is
given before or after such change in Agreement Accounting Principles or the
application thereof, then such provision shall be interpreted on the basis
of
Agreement Accounting Principles as in effect and applied immediately before
the
effective date of such change, until such notice is withdrawn or such provision
is amended in accordance herewith.
ARTICLE
2
THE
CREDITS
2.1 Facility.
From
and including the Closing Date to but excluding the Facility Termination
Date,
(a) each Lender severally agrees, on the terms and conditions set forth in
this Agreement, to (i) make Revolving Loans to the Borrower,
(ii) participate in Facility LCs issued upon the request of the Borrower
and (iii) participate in Swingline Loans made upon the request of the Borrower;
(b) each LC Issuer severally agrees to issue Facility LCs on the terms and
conditions set forth in this Agreement; and (c) the Swingline Lender agrees
to
make Swingline Loans to the Borrower on the terms and conditions set forth
in
this Agreement.
2.1.1 Amount
of Facility.
In no
event may the Aggregate Outstanding Credit Exposure exceed the Aggregate
Commitment.
2.1.2 Availability
of Facility.
Subject
to the terms of this Agreement, the Borrower may borrow, repay and reborrow
hereunder at any time prior to the Facility Termination Date. The Commitments
to
lend hereunder shall expire on the Facility Termination Date.
2.1.3 Repayment
of Facility.
(i) Subject
to clause (ii) below, the Aggregate Outstanding Credit Exposure and all other
unpaid Obligations shall be paid in full by the Borrower on the Facility
Termination Date, except that the Borrower’s contingent reimbursement
obligations in respect of any Facility LCs outstanding on the Facility
Termination Date shall be secured in accordance with the last sentence of
Section 2.16.1.
(ii) On
or
before ten Business Days prior to the Facility Termination Date, the Borrower
may, as long as no Default or Unmatured Default exists and is continuing,
notify
the Administrative Agent in writing (and the Administrative Agent shall promptly
forward such notice to the Lenders) that, as of the Facility Termination
Date,
it is converting the outstanding Loans (including all Swingline Loans) to
a term
loan which shall be due and payable in full on the date one year subsequent
to
the Facility Termination Date (the “Term
Out Maturity Date”).
It is
understood and agreed that subsequent to the Facility Termination Date,
(a) the Borrower may no longer request, and the Lenders, LC Issuers and
Swingline Lender are no longer obligated or empowered to make or issue, new
Loans or Letters of Credit, (b) any amounts repaid may not be reborrowed,
(c) interest shall accrue on the outstanding Loans, at the option of the
Borrower, as Floating Rate Loans or Eurodollar Loans in accordance with the
terms of Sections 2.2.4, 2.7 and 2.8; provided,
that
during the period from the Facility Termination Date through the Term Out
Maturity Date, the outstanding Loans shall bear interest at the rate otherwise
applicable to such Loans plus a premium of 0.25% per
annum
and (d)
the Borrower shall have the right to prepay all or a portion of the outstanding
Loans in accordance with Section 2.6.
2.2 Revolving
Loans.
2.2.1 Revolving
Loans.
Each
Revolving Loan borrowing hereunder shall consist of Revolving Loans made
by the
Lenders ratably in proportion to the ratio that their respective Commitments
bear to the Aggregate Commitment.
2.2.2 Types
of Revolving Loans.
Revolving Loans may be Floating Rate Loans or Eurodollar Loans, or a combination
thereof, as selected by the Borrower in accordance with
Section 2.2.3.
2.2.3 Method
of Selecting Types and Interest Periods for Revolving
Loans.
The
Borrower shall select the Type of Revolving Loan and, in the case of each
Eurodollar Loan, the Interest Period applicable thereto, from time to time.
The
Borrower shall give the Administrative Agent irrevocable notice in the form
of
Exhibit B (a “Borrowing
Notice”)
not
later than (a) 1:30 p.m. (New York time) on the Borrowing Date of each Floating
Rate Loan and (b) 2:00 p.m. (New York time) at least three Business Days
before the Borrowing Date of each Eurodollar Loan. A Borrowing Notice shall
specify:
(i) the
Borrowing Date, which shall be a Business Day, of such Revolving
Loan;
(ii) the
aggregate amount of such Revolving Loan;
(iii) the
Type
of Revolving Loan selected; and
(iv) in
the
case of each Eurodollar Loan, the Interest Period applicable thereto (which
may
not end after the scheduled Facility Termination Date or the Term Out Maturity
Date, as applicable).
2.2.4 Conversion
and Continuation of Outstanding Loans.
Floating Rate Loans shall continue as Floating Rate Loans unless and until
such
Floating Rate Loans are either converted into Eurodollar Loans or LIBOR Market
Index Rate Loans in accordance with this Section 2.2.4 or are repaid in
accordance with Section 2.6. Each Eurodollar Loan shall continue as a
Eurodollar Loan until the end of the then applicable Interest Period therefor,
at which time such Eurodollar Loan shall be automatically converted into
a
Floating Rate Loan unless (x) such Eurodollar Loan is or was repaid in
accordance with Section 2.6 or (y) the Borrower shall have given the
Administrative Agent a Conversion/Continuation Notice requesting that, at
the
end of such Interest Period, such Eurodollar Loan continue as a Eurodollar
Loan
for the same or another Interest Period. LIBOR Market Index Rate Loans shall
continue as LIBOR Market Index Rate Loans until they are either converted
to
Floating Rate Loans in accordance with this Section 2.2.4 or are repaid in
accordance with Section 2.6 or 2.18. Subject to Section 2.5, the Borrower
may elect from time to time to convert (i) all or any part of a Floating
Rate
Loan (other than Swingline Loans) into a Eurodollar Loan, (ii) convert any
Swingline Loan that is a Floating Rate Loan into a LIBOR Market Index Rate
Loan
or (iii) convert any LIBOR Market Index Rate Loan into a Floating Rate Loan.
For
the avoidance of doubt, only Swingline Loans may be comprised of LIBOR Market
Index Rate Loans. The Borrower shall give the Administrative Agent irrevocable
notice in the form of Exhibit C (a “Conversion/Continuation
Notice”)
with
respect to each (A) conversion of a Floating Rate Loan into a Eurodollar
Loan or
LIBOR Market Index Rate Loan, (B) conversion of a LIBOR Market Index Rate
Loan
into a Floating Rate Loan or (C) continuation of a Eurodollar Loan, not later
than 2:00 p.m. (New York time) at least three Business Days prior to the
date of
the requested conversion or continuation, specifying:
(i) the
requested date, which shall be a Business Day, of such conversion or
continuation;
(ii) the
aggregate amount and Type of the Revolving Loan or Swingline Loan which is
to be
converted or continued and, if applicable, the Type of Loan to which such
Revolving Loan or Swingline Loan is to be converted; and
(iii) if
any
Loan is to be converted to a Eurodollar Loan or continued as a Eurodollar
Loan,
the duration of the Interest Period applicable thereto.
2.3 Method
of Borrowing.
Not
later than (a) 2:30 p.m. (New York time) on the Borrowing Date of each Floating
Rate Loan and (b) 2:00 p.m. (New York time) on the Borrowing Date of each
Eurodollar Loan, each Lender shall make available its Revolving Loan or
Revolving Loans in funds immediately available in Houston, Texas to the
Administrative Agent at its address specified pursuant to Article 13. The
Administrative Agent will make the funds so received from the Lenders available
to the Borrower at the Administrative Agent’s aforesaid address.
2.4 Fees;
Reductions in Aggregate Commitment.
2.4.1 The
Borrower agrees to pay to the Administrative Agent for the account of each
Lender according to its Pro Rata Share (a) a commitment fee at a
per
annum
rate
equal to the Applicable Commitment Fee Rate on the daily unused portion of
the
Aggregate Commitment (the “Commitment
Fee”)
from
and including the date hereof to but excluding the Facility Termination Date,
payable in arrears on each Payment Date and on the Facility Termination Date
and
(b) a utilization fee at a per
annum
rate
equal to the Applicable Utilization Fee Rate on the aggregate principal amount
of the outstanding Revolving Loans for each day on which the aggregate principal
amount of the outstanding Revolving Loans equals or exceeds 50% of the Aggregate
Commitment (the “Utilization
Fee”)
from
and including the date hereof to but excluding the Facility Termination Date,
payable in arrears on each Payment Date and on the Facility Termination Date.
For purposes of calculating the Commitment Fee, Swingline Loans shall not
be
deemed a utilization of the Aggregate Commitment. For purposes of calculating
the Utilization Fee, Swingline Loans shall be deemed a utilization of the
Aggregate Commitment.
2.4.2 The
Borrower agrees to pay to the Administrative Agent on the Closing Date, for
the
account of each Lender, an upfront fee as provided for in the Fee
Letter.
2.4.3 The
Borrower may permanently reduce the Aggregate Commitment in whole, or in
part
ratably among the Lenders in a minimum amount of $10,000,000 and higher integral
multiples of $1,000,000, upon at least three Business Days’ prior written notice
to the Administrative Agent, which notice shall specify the amount of any
such
reduction;
provided
that the
amount of the Aggregate Commitment may not be reduced below the Aggregate
Outstanding Credit Exposure. All accrued Commitment Fees and Utilization
Fees
shall be payable on the effective date of any termination of the Commitments
in
full.
2.5 Minimum
Amount of Each Revolving Loan; Limitation on Eurodollar Loans.
Each
Revolving Loan shall at all times (including after giving effect to any
prepayment, conversion or continuation of all or part of a Revolving Loan)
be in
the amount of $1,000,000 or a higher integral multiple of $500,000. The Borrower
shall not request a Eurodollar Loan if, after giving effect to the requested
Eurodollar Loan, more than ten separate Eurodollar Loans would be
outstanding.
2.6 Optional
Principal Payments.
With
respect to Revolving Loans, the Borrower may from time to time pay, without
penalty or premium, all outstanding Floating Rate Loans or, in an aggregate
amount of $1,000,000 or a higher integral multiple of $500,000, any portion
of
the outstanding Floating Rate Loans upon one Business Day’s prior notice to the
Administrative Agent. With respect to Revolving Loans, the Borrower may from
time to time pay, subject to the payment of any funding indemnification amounts
required by Section 3.4 but without penalty or premium, all outstanding
Eurodollar Loans or, in an aggregate amount of $1,000,000 or a higher integral
multiple of $500,000, any portion of the outstanding Eurodollar Loans upon
three
Business Days’ prior notice to the Administrative Agent. The Borrower may from
time to time pay, without penalty or premium, all outstanding Swingline Loans
or, in an aggregate amount of $100,000 or a higher integral multiple of
$100,000, any portion of the outstanding Swingline Loans upon one Business
Day’s
prior notice to the Administrative Agent.
2.7 Changes
in Interest Rate, etc.
(i) Each
Floating Rate Loan shall bear interest on the outstanding principal amount
thereof, for each day from and including the date such Floating Rate Loan
is
made or is converted from a Eurodollar Loan pursuant to Section 2.2.4 to
but excluding the date it becomes due or is converted into a Eurodollar Loan
pursuant to Section 2.2.4, at the Alternate Base Rate for such day. Changes
in the rate of interest applicable to each Floating Rate Loan will take effect
simultaneously with each change in the Alternate Base Rate.
(ii) Each
Eurodollar Loan shall bear interest on the outstanding principal amount thereof,
from and including the first day of each Interest Period applicable thereto
to
but excluding the last day of such Interest Period, at a rate per
annum
equal to
the sum of the Eurodollar Rate for each day during such Interest Period plus
the
Applicable Eurodollar Margin.
(iii) Each
LIBOR Market Index Rate Loan shall bear interest on the outstanding principal
amount thereof, for each day from and including the date such LIBOR Market
Index
Rate Loan is made or is converted from a Floating Rate Loan pursuant to Section
2.2.4 to but excluding the date it becomes due or is converted into a Floating
Rate Loan pursuant to Section 2.2.4, at the LIBOR Market Index Rate for such
day
plus the Applicable Eurodollar Margin.
2.8 Rates
Applicable After Default.
Notwithstanding anything to the contrary contained in Section 2.2.3 or
Section 2.2.4, during the continuance of a Default or Unmatured Default the
Required Lenders may, at their option, by notice to the Borrower (which notice
may be revoked at the option of the Required Lenders notwithstanding any
provision of Section 8.2 requiring unanimous consent of the Lenders to
changes in interest rates), declare that no Revolving Loan may be made as,
converted into or continued as a Eurodollar Loan. During the continuance
of a
Default the Required Lenders may, at their option, by notice to the Borrower
(which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of
the Lenders to changes in interest rates), declare that (i) each Eurodollar
Loan shall bear interest for the remainder of the applicable Interest Period
at
the Alternate Base Rate in effect from time to time plus 2% per
annum,
(ii) each Floating Rate Loan shall bear interest at a rate per
annum
equal to
the Alternate Base Rate in effect from time to time plus 2% per
annum,
(iii)
each LIBOR Market Index Rate Loan shall bear interest at a rate per
annum
equal to
the Alternate Base Rate in effect from time to time plus 2% per
annum
and
(iv) the LC Fee shall be increased by 2% per
annum; provided
that,
during the continuance of a Default under Section 7.6 or 7.7, the interest
rates set forth in clauses (i), (ii) and (iii) above and the increase in
the LC Fee set forth in clause (iv) above shall be applicable to all Credit
Extensions without any election or action on the part of the Administrative
Agent or any Lender.
2.9 Method
of Payment.
All
payments of the Obligations hereunder shall be made, without setoff, deduction
or counterclaim, in immediately available funds to the Administrative Agent
at
the Administrative Agent’s address specified pursuant to Article 13, or at
any other Lending Installation of the Administrative Agent specified in writing
by the Administrative Agent to the Borrower, by 1:00 p.m. (New York time)
on the
date when due and shall (except in the case of (i) Reimbursement Obligations
for
which any LC Issuer has not been fully indemnified by the Lenders, or as
specifically required hereunder or (ii) Swingline Loans for which the Swingline
Lender has not been reimbursed as provided herein) be applied ratably by
the
Administrative Agent among the Lenders. Each payment delivered to the
Administrative Agent for the account of any Lender shall be delivered promptly
by the Administrative Agent to such Lender in the same type of funds as the
Administrative Agent received at such Lender’s address specified pursuant to
Article 13 or at any Lending Installation specified in a notice received by
the Administrative Agent from such Lender. Each reference to the Administrative
Agent in this Section 2.9 shall also be deemed to refer, and shall apply
equally, to (a) each LC Issuer, in the case of payments required to be made
by
the Borrower to such LC Issuer pursuant to 2.16.6 and (b) the Swingline Lender,
in the case of payments required to be made by the Borrower to the Swingline
Lender pursuant to Section 2.18.
2.10 Noteless
Agreement; Evidence of Indebtedness.
(i) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender from time to time, including the amounts
of
principal and interest payable and paid to such Lender from time to time
hereunder.
(ii) The
Administrative Agent shall also maintain accounts in which it will record
(a) the amount of each Loan made hereunder, the Type thereof and the
Interest Period, if any, with respect thereto, (b) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder, (c) the original stated amount of each
Facility LC and the amount of LC Obligations outstanding at any time, and
(d) the amount of any sum received by the Administrative Agent hereunder
from the Borrower and each Lender’s share thereof.
(iii) The
entries made in the accounts maintained pursuant to paragraphs (i) and
(ii) above shall be prima
facie
evidence
of the existence and amounts of the Obligations recorded therein;
provided that
the
failure of the Administrative Agent or any Lender to maintain such accounts
or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Obligations in accordance with the terms hereof.
(iv) Any
Lender may request that its Revolving Loans be evidenced by a Revolving Note.
In
such event, the Borrower shall prepare, execute and deliver to such Lender
a
Revolving Note payable to the order of such Lender. Thereafter, the Revolving
Loans evidenced by such Revolving Note and interest thereon shall at all
times
(including after any assignment pursuant to Section 12.3) be represented by
a Revolving Note payable to the order of the payee named therein or any assignee
pursuant to Section 12.3, except to the extent that any such Lender or
assignee subsequently returns any such Revolving Note for cancellation and
requests that such Revolving Loans once again be evidenced as described in
paragraphs (i) and (ii) above.
(v) The
Swingline Loans shall be evidenced by a Swingline Note executed by the Borrower
to the order of the Swingline Lender.
2.11 Telephonic
Notices.
The
Borrower hereby authorizes the Lenders and the Administrative Agent to extend,
convert or continue Loans, to effect selections of Types of Loans and to
transfer funds based on telephonic notices made pursuant to the terms of
this
Agreement by any person or persons the Administrative Agent or any Lender
in
good faith believes to be acting on behalf of the Borrower, it being understood
that the foregoing authorization is specifically intended to allow Borrowing
Notices and Conversion/Continuation Notices to be given telephonically to
the
Administrative Agent. The Borrower agrees to deliver promptly to the
Administrative Agent a written confirmation of each telephonic notice, if
such
confirmation is requested by the Administrative Agent or any Lender, signed
by
an Authorized Officer. If the written confirmation differs in any material
respect from the action taken by the Administrative Agent and the Lenders,
the
records of the Administrative Agent and the Lenders shall govern absent manifest
error.
2.12 Interest
Payment Dates; Interest and Fee Basis.
Interest accrued on each Floating Rate Loan and each LIBOR Market Index Rate
Loan shall be payable on each Payment Date, on any date on which such Floating
Rate Loan or LIBOR Market Index Rate Loan is paid, whether due to acceleration
or otherwise, and at maturity. Interest accrued on that portion of the
outstanding principal amount of any Floating Rate Loan converted into a
Eurodollar Loan or LIBOR Market Index Rate Loan on a day other than a Payment
Date shall be payable on the date of conversion. Interest accrued on that
portion of the outstanding principal amount of any LIBOR Market Index Rate
Loan
converted into a Floating Rate Loan on a day other than a Payment Date shall
be
payable on the date of conversion. Interest accrued on each Eurodollar Loan
shall be payable on the last day of its applicable Interest Period, on any
date
on which such Eurodollar Loan is paid, whether by acceleration or otherwise,
and
at maturity. Interest accrued on each Eurodollar Loan having an Interest
Period
longer than three months shall also be payable on the last day of each
three-month interval during such Interest Period. Interest, Commitment Fees,
Utilization Fees, LC Fees and LC Fronting Fees shall be calculated for actual
days elapsed on the basis of a 360-day year, except that interest on Floating
Rate Loans accruing at a rate based on the Reference Rate shall be computed
on
the basis of a 365- or 366-day year, as applicable. Interest shall be payable
for the day a Loan is made but not for the day of any payment on the amount
paid
if payment is received prior to 1:00 p.m. (New York time). If any payment
of
principal of or interest on a Loan or any payment of fees in connection herewith
shall become due on a day which is not a Business Day, such payment shall
be
made on the next succeeding Business Day, and such extension of time shall
be
reflected in computing interest or fees, as the case may be.
2.13 Notification
of Revolving Loans, Interest Rates, Prepayments and Commitment
Reductions.
Promptly after receipt thereof, the Administrative Agent will notify each
Lender
of the contents of each Aggregate Commitment reduction notice, Borrowing
Notice,
Conversion/Continuation Notice and repayment notice received by the
Administrative Agent hereunder. Promptly after receipt of notice thereof
from
any LC Issuer, the Administrative Agent will notify each Lender of the contents
of each request for issuance of a Facility LC hereunder. Promptly after receipt
of notice thereof from the Swingline Lender, the Administrative Agent will
notify each Lender of the contents of each request for a Mandatory Borrowing.
The Administrative Agent will notify each Lender and the Borrower of the
interest rate applicable to each Eurodollar Loan promptly upon determination
of
such interest rate and will give each Lender and the Borrower prompt notice
of
each change in the Alternate Base Rate.
2.14 Lending
Installations.
Each
Lender may book its Revolving Loans and its participations in any LC Obligations
and Swingline Loans, each LC Issuer may book the Facility LCs issued thereby,
and the Swingline Lender may book its Swingline Loans, at any Lending
Installation selected by such Lender, Swingline Lender or LC Issuer, as the
case
may be, and may change its Lending Installation from time to time. All terms
of
this Agreement shall apply to any such Lending Installation, and the Revolving
Loans, Swingline Loans, Facility LCs, participations in LC Obligations and
Swingline Loans and any Notes issued hereunder shall be deemed held by each
Lender, Swingline Lender or LC Issuer, as the case may be, for the benefit
of
any such Lending Installation. Each Lender, Swingline Lender and LC Issuer
may,
by written notice to the Administrative Agent and the Borrower in accordance
with Article 13, designate replacement or additional Lending Installations
through which Loans will be made by it or Facility LCs will be issued by
it and
for whose account payments under this Agreement are to be made.
2.15 Non-Receipt
of Funds by Administrative Agent.
Unless
the Borrower or a Lender, as the case may be, notifies the Administrative
Agent
prior to the date on which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Lender, the proceeds of a Revolving Loan or
(ii) in the case of the Borrower, a payment of principal, Reimbursement
Obligations, interest or fees to the Administrative Agent for the account
of the
Lenders, that it does not intend to make such payment, the Administrative
Agent
may assume that such payment has been made. The Administrative Agent may,
but
shall not be obligated to, make the amount of such payment available to the
intended recipient in reliance upon such assumption. If such Lender or the
Borrower, as the case may be, has not in fact made such payment to the
Administrative Agent, the recipient of such payment from the Administrative
Agent shall, on demand by the Administrative Agent, repay to the Administrative
Agent the amount so made available, together with interest thereon in respect
of
each day during the period commencing on the date such amount was so made
available by the Administrative Agent until the date the Administrative Agent
recovers such amount at a rate per
annum
equal to
(x) in the case of repayment by a Lender, the Federal Funds Effective Rate
for such day for the first three days and, thereafter, the interest rate
applicable to the relevant Revolving Loan or (y) in the case of repayment
by the Borrower, the interest rate applicable to the relevant Revolving
Loan.
2.16 Facility
LCs.
2.16.1 Issuance.
Each LC
Issuer hereby agrees, on the terms and conditions set forth in this Agreement,
to issue standby letters of credit (each, a “Facility
LC”)
and to
renew, extend, increase, decrease or otherwise modify each Facility LC issued
thereby (“Modify,”
and
each such action a “Modification”),
from
time to time from and including the date of this Agreement and prior to the
Facility Termination Date upon the request of the Borrower;
provided
that,
immediately after each such Facility LC is issued or Modified, the Aggregate
Outstanding Credit Exposure shall not exceed the Aggregate Commitment. No
Facility LC shall have an expiry date later than one year after the Facility
Termination Date. If one or more Facility LCs are outstanding on the Facility
Termination Date, the Borrower shall cause to be deposited with the
Administrative Agent on or before such date cash collateral in the amount
equal
to the maximum aggregate amount then available to be drawn under such Facility
LCs (or cash equivalents of such types and in such amounts as are reasonably
satisfactory to the Administrative Agent), pursuant to documentation in form
and
substance reasonably satisfactory to the Administrative Agent, to secure
the
Borrower’s contingent reimbursement obligations in respect of such Facility
LCs.
2.16.2 Participations.
Upon
the issuance or Modification by any LC Issuer of a Facility LC in accordance
with this Section 2.16, such LC Issuer shall be deemed, without further
action by any party hereto, to have unconditionally and irrevocably sold
to each
Lender, and each Lender shall be deemed, without further action by any party
hereto, to have unconditionally and irrevocably purchased from such LC Issuer,
a
participation in such Facility LC (and each Modification thereof) and the
related LC Obligations in proportion to such Lender’s Pro Rata
Share.
2.16.3 Notice.
Subject
to Section 2.16.1, the Borrower shall give each LC Issuer notice prior to
2:00 p.m. (local time of such LC Issuer) at least three Business Days prior
to
the proposed date of issuance or Modification of each Facility LC by such
LC
Issuer, specifying the beneficiary, the proposed date of issuance or
Modification and the expiry date of such Facility LC, and describing the
proposed terms of such Facility LC and the nature of the transactions proposed
to be supported thereby. Upon receipt of such notice, the applicable LC Issuer
shall promptly notify the Administrative Agent, and the Administrative Agent
shall promptly notify each Lender, of the contents thereof and of the amount
of
such Lender’s participation in such proposed Facility LC. The issuance or
Modification by an LC Issuer of any Facility LC shall, in addition to the
conditions precedent set forth in Article 4 (the satisfaction of which such
LC Issuer shall have no duty to ascertain), be subject to the conditions
precedent that such Facility LC shall be satisfactory to such LC Issuer and
that
the Borrower shall have executed and delivered such application agreement
and/or
other instruments and agreements relating to such Facility LC as such LC
Issuer
shall have reasonably requested (each, a “Facility
LC Application”).
In
the event of any conflict between the terms of this Agreement and the terms
of
any Facility LC Application, the terms of this Agreement shall
control.
2.16.4 LC
Fees and LC Fronting Fees.
The
Borrower shall pay to the Administrative Agent, for the account of the Lenders
ratably in accordance with their respective Pro Rata Shares, with respect
to
each Facility LC, a letter of credit fee at a per
annum
rate
equal to the Applicable LC Fee Rate in effect from time to time on the maximum
undrawn amount available under such Facility LC from time to time, such fee
to
be payable in arrears on each Payment Date (each such fee, an “LC
Fee”).
In
addition to the LC Fee, with respect to each Facility LC issued by a particular
LC Issuer, the Borrower shall pay to such LC Issuer for its own account
(x) a fronting fee at the rate of 0.125% per
annum
on the
maximum undrawn amount available under each such Facility LC from time to
time,
such fee to be payable in arrears on each Payment Date (each such fee, an
“LC
Fronting Fee”),
and
(y) documentary and processing charges in connection with the issuance or
Modification of, and draws under, each such Facility LC in accordance with
such
LC Issuer’s standard schedule for such charges as in effect from time to
time.
2.16.5 Administration;
Reimbursement by Lenders.
Upon
receipt from the beneficiary of any Facility LC of any demand for payment
under
such Facility LC, the LC Issuer of such Facility LC shall notify the
Administrative Agent, and the Administrative Agent shall promptly notify
the
Borrower and each Lender, as to the amount to be paid by such LC Issuer as
a
result of such demand and the proposed payment date (the “LC
Payment Date”).
The
responsibility of each LC Issuer to the Borrower and each Lender shall be
only
to determine that the documents (including each demand for payment) delivered
under each Facility LC issued by such LC Issuer in connection with each
presentment thereunder shall be in conformity in all material respects with
such
Facility LC. Each LC Issuer shall endeavor to exercise the same care in the
issuance and administration of Facility LCs thereby as it does with respect
to
letters of credit in which no participations are granted, it being understood
that, in the absence of any gross negligence or willful misconduct by such
LC
Issuer, each Lender shall be unconditionally and irrevocably liable, without
regard to the occurrence of any Default or Unmatured Default or any condition
precedent whatsoever, to reimburse such LC Issuer on demand for (i) such
Lender’s Pro Rata Share of the amount of each payment made by such LC Issuer
under each Facility LC issued thereby to the extent such amount is not
reimbursed by the Borrower pursuant to Section 2.16.6, plus
(ii) interest on the foregoing amount to be reimbursed by such Lender, for
each day from the date of such LC Issuer’s demand for such reimbursement (or, if
such demand is made after 12:00 noon (local time of such LC Issuer) on such
date, from the next succeeding Business Day) to the date on which such Lender
pays the amount to be reimbursed by it, at a rate of interest per
annum
equal to
the Federal Funds Effective Rate for the first three days and, thereafter,
to
the rate applicable to Floating Rate Loans.
2.16.6 Reimbursement
by Borrower.
The
Borrower shall be irrevocably and unconditionally obligated to reimburse
each LC
Issuer on or before the applicable LC Payment Date for any amounts paid or
to be
paid by such LC Issuer upon any drawing under any Facility LC issued thereby,
without presentment, demand, protest or other formalities of any
kind;
provided
that
neither the Borrower nor any Lender shall hereby be precluded from asserting
any
claim for direct (but not consequential) damages suffered by the Borrower
or
such Lender to the extent, but only to the extent, caused by (i) the
willful misconduct or gross negligence of such LC Issuer in determining whether
a request presented under any Facility LC issued by it complied with the
terms
of such Facility LC or (ii) such LC Issuer’s failure to pay under any
Facility LC issued by it after the presentation to it of a request for payment
strictly complying with the terms and conditions of such Facility LC. All
such
amounts paid by any LC Issuer and remaining unpaid by the Borrower shall
bear
interest, payable on demand, for each day until paid at a rate per
annum
equal to
(x) the rate applicable to Floating Rate Loans for such day if such day
falls on or before the applicable LC Payment Date and (y) the sum of 2%
plus the rate applicable to Floating Rate Loans for such day if such day
falls
after such LC Payment Date. Each LC Issuer will pay to each Lender ratably
in
accordance with its Pro Rata Share all amounts received by such LC Issuer
from
the Borrower for application in payment, in whole or in part, of any
Reimbursement Obligation in respect of any Facility LC issued by such LC
Issuer,
but only to the extent such Lender has made payment to such LC Issuer in
respect
of such Facility LC pursuant to Section 2.16.5.
2.16.7 Obligations
Absolute.
The
Borrower’s obligations under this Section 2.16 shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Borrower may have or have had
against any LC Issuer, any Lender or any beneficiary of a Facility LC. The
Borrower further agrees with the LC Issuers and the Lenders that none of
the LC
Issuers or Lenders shall be responsible for, and no Reimbursement Obligation
in
respect of any Facility LC shall be affected by, among other things,
(i) the validity or genuineness of documents or of any endorsements
thereon, even if such documents should in fact prove to be in any or all
respects invalid, fraudulent or forged, (ii) any dispute between or among
the Borrower, any of its Affiliates, the beneficiary of any Facility LC or
any
financing institution or other party to which any Facility LC may be transferred
or (iii) any claims or defenses whatsoever of the Borrower or any of its
Affiliates against the beneficiary of any Facility LC or any such transferee.
No
LC Issuer shall be liable for any error, omission, interruption or delay
in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Facility LC. The Borrower agrees that
any
action taken or omitted by any LC Issuer or Lender under or in connection
with
any Facility LC and the related drafts and documents, if done without gross
negligence or willful misconduct, shall be binding upon the Borrower and
shall
not put any LC Issuer or Lender under any liability to the Borrower. Nothing
in
this Section 2.16.7 is intended to limit the right of the Borrower to make
a claim against any LC Issuer for damages as contemplated by the proviso
to the
first sentence of Section 2.16.6.
2.16.8 Actions
of LC Issuer.
Each LC
Issuer shall be entitled to rely, and shall be fully protected in relying,
upon
any Facility LC, draft, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex, teletype or electronic
message, statement, order or other document reasonably believed by it to
be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by such LC Issuer. Each LC Issuer
shall
be fully justified in failing or refusing to take any action under this
Agreement unless it shall first have received such advice or concurrence
of the
Required Lenders as it reasonably deems appropriate or it shall first be
indemnified to its reasonable satisfaction by the Lenders against any and
all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. Notwithstanding any other provision of
this
Section 2.16, each LC Issuer shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement in accordance
with a
request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon the Lenders and any
future
holders of a participation in any Facility LC.
2.16.9 Indemnification.
The
Borrower hereby agrees to indemnify and hold harmless each Lender, each LC
Issuer and the Administrative Agent, and their respective directors, officers,
agents and employees from and against any and all claims, damages, losses,
liabilities, costs and expenses which such Lender or LC Issuer or the
Administrative Agent may incur (or which may be claimed against such Lender
or
LC Issuer or the Administrative Agent by any Person whatsoever) by reason
of or
in connection with the issuance, execution and delivery or transfer of, or
payment or failure to pay under, any Facility LC or any actual or proposed
use
of any Facility LC, including any claims, damages, losses, liabilities, costs
and expenses which any LC Issuer may incur by reason of or in connection
with
the failure of any other Lender to fulfill or comply with its obligations
to
such LC Issuer hereunder (but nothing herein contained shall affect any rights
the Borrower may have against any defaulting Lender);
provided
that the
Borrower shall not be required to indemnify any Lender or LC Issuer or the
Administrative Agent for any claims, damages, losses, liabilities, costs
or
expenses to the extent, but only to the extent, caused by (x) the willful
misconduct or gross negligence of such LC Issuer in determining whether a
request for payment presented under any Facility LC issued thereby complied
with
the terms of such Facility LC, (y) such LC Issuer’s failure to pay under
any such Facility LC after the presentation to it of such a request strictly
complying with the terms and conditions of such Facility LC or
(z) disputes, not involving the Borrower or any beneficiary of any Facility
LC, solely among the Lenders, any LC Issuer and/or the Administrative Agent
relating to a Facility LC. Nothing in this Section 2.16.9 is intended to
limit the obligations of the Borrower under any other provision of this
Agreement.
2.16.10
Lenders’
Indemnification.
Each
Lender shall, ratably in accordance with its Pro Rata Share, indemnify each
LC
Issuer, its Affiliates and their respective directors, officers, agents and
employees (to the extent not reimbursed by the Borrower) against any costs,
expenses (including reasonable counsel fees and disbursements), claims, demands,
actions, losses and liabilities (except such as result from such indemnitees’
gross negligence or willful misconduct or such LC Issuer’s failure to pay under
any Facility LC issued thereby after the presentation to it of a request
for
payment strictly complying with the terms and conditions of such Facility
LC)
that such indemnitees may suffer or incur in connection with this
Section 2.16 or any action taken or omitted by such indemnitees
hereunder.
2.16.11
Rights
as Lender.
In its
capacity as a Lender, each LC Issuer shall have the same rights and obligations
as any other Lender.
2.17 Extension
of Facility Termination Date.
The
Borrower may request an extension of the Facility Termination Date by submitting
a request for an extension to the Administrative Agent (an “Extension
Request”)
at
least 30 days but no more than 60 days prior to each anniversary of the date
of
this Agreement. The Extension Request must specify the new Facility Termination
Date requested by the Borrower and the date (which must be at least 10
days after the Extension Request is delivered to the Administrative Agent)
as of which the Lenders must respond to the Extension Request (the “Response
Date”).
Promptly upon receipt of an Extension Request, the Administrative Agent shall
notify each Lender of the contents thereof and shall request each Lender
to
respond to the Extension Request. Each Lender approving the Extension Request
shall deliver its written consent no later than the Response Date. The response
by each Lender to the Extension Request shall be in such Lender’s sole and
absolute discretion. The failure of any Lender to respond to an Extension
Request on or before the Response Date shall be deemed to be a refusal by
such
Lender to consent to the Extension Request. If the consent of each of the
Lenders is received by the Administrative Agent (or, in the case of a
non-consenting Lender or Lenders, such Lender or Lenders are replaced by
the
Borrower pursuant to Section 3.7 not later than five days prior to the
existing Facility Termination Date and, at the time of such replacement,
each
replacement Lender consents to the Extension Request), the Facility Termination
Date specified in the Extension Request shall become effective on the existing
Facility Termination Date, and the Administrative Agent shall promptly notify
the Borrower and each Lender of the new Facility Termination Date.
2.18 Swingline
Loan Subfacility.
2.18.1 Swingline
Loans.
From
and including the Closing Date to but excluding the Facility Termination
Date,
the Swingline Lender, in its individual capacity, agrees to make loans to
the
Borrower (each
a
“Swingline
Loan”
and,
collectively, the “Swingline
Loans”)
for the
purposes hereinafter set forth; provided, however,
(i) the aggregate amount of Swingline Loans outstanding at any time shall
not exceed THIRTY-FIVE
MILLION DOLLARS
($35,000,000) (the “Swingline
Committed Amount”),
and
(ii) the Aggregate Outstanding Credit Exposure shall not exceed the
Aggregate Commitment.
Swingline Loans hereunder may be repaid and reborrowed in accordance with
the
provisions hereof.
2.18.2 Swingline
Loan Borrowing.
(i) Notice
of Borrowing and Disbursement.
Upon
receiving a Borrowing Notice not later than 2:00 p.m. (New York time) on
any
Business Day requesting that a Swingline Loan be made, the Swingline Lender
will
make Swingline Loans available to the Borrower on the same Business Day such
request is received by the Administrative Agent. The Borrower shall specify
in
the applicable Borrowing Notice with respect to such Swingline Loan (a) the
amount of the requested Swingline Loan and (b) whether such Swingline Loan
shall
be a Floating Rate Loan or a LIBOR Market Index Rate Loan. Swingline Loan
borrowings hereunder shall be made in minimum amounts of $100,000 and in
higher
integral multiples of $100,000.
(ii) Repayment
of Swingline Loans.
Each
Swingline Loan borrowing that is a Floating Rate Loan shall be due and payable
on the Facility Termination Date. Each Swingline Loan borrowing that is a
LIBOR
Market Index Rate Loan shall be due and payable on the earlier of (A) the
Facility Termination Date and (B) fourteen days after the date such Swingline
Loan is made. Swingline Loans that are LIBOR Market Index Rate Loans may
not be
refinanced with the proceeds of Swingline Loans that are LIBOR Market Index
Rate
Loans. The Swingline Lender may, at any time, in its sole discretion, by
written
notice to the Borrower and the Administrative Agent, demand repayment of
its
Swingline Loans by way of a Revolving Loan borrowing, in which case the Borrower
shall be deemed to have requested a Revolving Loan borrowing comprised entirely
of Floating Rate Loans in the amount of such Swingline Loans; provided,
however,
that,
in the following circumstances, any such demand shall also be deemed to have
been given one Business Day prior to each of (i) the Facility Termination
Date,
(ii) the
occurrence of any Default under Section 7.6 or 7.7,
(iii) upon
acceleration of the Obligations hereunder, whether on account of a Default
described in Section 7.6 or 7.7 or any other Default, (iv) the
exercise of remedies in accordance with the provisions of Article 8 hereof
and
(v) with respect to any LIBOR Market Index Rate Loan, the fourteenth day
after
the making of such Loan to the extent such Loan is not repaid sooner (each
such
Revolving Loan borrowing made on account of any such deemed request therefor
as
provided herein being hereinafter referred to as “Mandatory
Borrowing”). Each
Lender hereby irrevocably agrees to make such Revolving Loans promptly upon
any
such request or deemed request on account of each Mandatory Borrowing in
the
amount and in the manner specified in the preceding sentence and on the same
such date notwithstanding
(I) the
amount of Mandatory Borrowing may not comply with the minimum amount for
borrowings of Revolving Loans otherwise required hereunder, (II) whether
any
conditions specified in Section 4.2 are then satisfied, (III) whether a
Default or Unmatured Default then exists, (IV) failure of any such request
or
deemed request for Revolving Loans to be made by the time otherwise required
hereunder, (V) the date of such Mandatory Borrowing or (VI) any reduction
in the
Aggregate Commitment. In the event that any Mandatory Borrowing cannot for
any
reason be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under the Bankruptcy
Code), then each Lender hereby agrees that it shall forthwith purchase (as
of
the date the Mandatory Borrowing would otherwise have occurred, but adjusted
for
any payments received from the Borrower on or after such date and prior to
such
purchase) from the Swingline Lender such participations in the outstanding
Swingline Loans as shall be necessary to cause each such Lender to share
in such
Swingline Loans ratably based upon its Pro Rata Share (determined before
giving
effect to any termination of the Commitments pursuant to Article 8);
provided
that (A)
all interest payable on the Swingline Loans shall be for the account of the
Swingline Lender until the date as of which the respective participation
is
purchased, and (B) at the time any purchase of participations pursuant to
this
sentence is actually made, the purchasing Lender shall be required to pay
to the
Swingline Lender interest on the principal amount of such participation
purchased for each day from and including the day upon which the Mandatory
Borrowing would otherwise have occurred to but excluding the date of payment
for
such participation, at the rate equal to, if paid within two (2) Business
Days of the date of the Mandatory Borrowing, the Federal Funds Effective
Rate,
and thereafter at a rate equal to the Alternate Base Rate.
2.18.3 Interest
on Swingline Loans.
Swingline Loans shall at all times be Floating Rate Loans or LIBOR Market
Index
Rate Loans, as selected by the Borrower in accordance with Section 2.18.1.
Swingline Loans shall bear interest as provided in Section 2.7.
2.19 Incremental
Facility.
From
time
to time, prior to the Facility Termination Date and upon at least 30 days'
prior
written notice to the Administrative Agent (which notice shall be promptly
transmitted by the Administrative Agent to each Lender), the Borrower shall
have
the right, subject to the terms and conditions set forth below, to increase
the
aggregate amount of the Aggregate Commitment; provided
that (a)
no Default or Unmatured Default shall exist at the time of the request or
the
proposed increase in the Aggregate Commitment, (b) such increase must be
in a
minimum amount of $50,000,000 and in integral multiples of $5,000,000 above
such
amount, (c) the Aggregate Commitment shall not be increased to an amount
greater
than FIVE HUNDRED TWENTY-FIVE MILLION DOLLARS ($525,000,000)
without
the prior written consent of the Required Lenders, (d) no individual Lender's
Commitment may be increased without such Lender's written consent, (e) the
Borrower shall execute and deliver such Revolving Note(s) as are necessary
and
requested by the applicable Lenders to reflect the increase in the Aggregate
Commitment, (f) Schedule 2 shall be amended to reflect the revised Commitments
of the Lenders and (g) if any Revolving Loans are outstanding at the time
of an
increase in the Aggregate Commitment, the Borrower will prepay (provided
that
any such prepayment shall be subject to Section 3.4) one or more existing
Revolving Loans in an amount necessary such that after giving effect to the
increase in the Aggregate Commitment each Lender will hold its Pro Rata Share
(based on its share of the revised Aggregate Commitment) of outstanding
Revolving Loans.
Any
such
increase in the Aggregate Commitment shall apply, at the option of the Borrower,
to (x) the Commitment of one or more existing Lenders; provided
that any
Lender whose Commitment is being increased must consent in writing thereto
and/or (y) the creation of a new Commitment to one or more institutions that
is
not an existing Lender; provided
that any
such institution (A) must be approved by the Borrower and the Administrative
Agent (such approval not to be unreasonably withheld) and (B) must become
a
Lender under this Credit Agreement by execution and delivery of an appropriate
joinder agreement or of counterparts to this Credit Agreement in a manner
acceptable to the Borrower and the Administrative Agent.
ARTICLE
3
YIELD
PROTECTION; TAXES
3.1 Yield
Protection.
If, on
or after the date of this Agreement, the adoption of any law or any governmental
or quasi-governmental rule, regulation, policy, guideline or directive (whether
or not having the force of law), or any change in the interpretation or
administration thereof by any governmental or quasi-governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Swingline Lender or any Lender,
LC
Issuer or applicable Lending Installation with any request or directive (whether
or not having the force of law) of any such authority, central bank or
comparable agency:
(i) subjects
any Lender, Swingline Lender, LC Issuer or applicable Lending Installation
to
any Taxes, or changes the basis of taxation of payments (other than with
respect
to Excluded Taxes) to any Lender, Swingline Lender, LC Issuer or applicable
Lending Installation in respect of its Eurodollar Loans, Swingline Loans,
Facility LCs or participations therein, or
(ii) imposes,
increases or deems applicable any reserve, assessment, insurance charge,
special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender, Swingline Lender, LC Issuer
or
applicable Lending Installation (other than reserves and assessments taken
into
account in determining the interest rate applicable to Eurodollar Loans),
or
(iii) imposes
any other condition the result of which is to increase the cost to any Lender,
Swingline Lender, LC Issuer or applicable Lending Installation of making,
funding or maintaining its Eurodollar Loans, or making, funding, maintaining
or
participating in Swingline Loans or of issuing or participating in Facility
LCs,
or reduces any amount receivable by any Lender, Swingline Lender, LC Issuer
or
applicable Lending Installation in connection with its Eurodollar Loans,
Swingline Loans or participations therein, Facility LCs or participations
therein, or requires any Lender, Swingline Lender, LC Issuer or applicable
Lending Installation to make any payment calculated by reference to the amount
of Eurodollar Loans, Swingline Loans or participations therein or Facility
LCs
or participations therein held or interest received by it, by an amount deemed
material by such Lender, Swingline Lender or LC Issuer, as the case may be,
and
the
result of any of the foregoing is to increase the cost to such Lender, Swingline
Lender, LC Issuer or applicable Lending Installation, as the case may be,
of (a)
making or maintaining its Eurodollar Loans, (b) making, maintaining or
participating in Swingline Loans, (c) making or maintaining its Commitment
or
(d) issuing or participating in Facility LCs or to reduce the return received
by
such Lender, Swingline Lender, LC Issuer or applicable Lending Installation
in
connection with such Eurodollar Loans, Commitment, Swingline Loans or
participations therein, or Facility LCs or participations therein then, within
15 days of demand by such Lender, Swingline Lender or LC Issuer, as the case
may
be, the Borrower shall pay such Lender, Swingline Lender or LC Issuer such
additional amount or amounts as will compensate such Lender, Swingline Lender,
LC Issuer or Lending Installation, as the case may be, for such increased
cost
or reduction in amount received.
3.2 Changes
in Capital Adequacy Regulations.
If a
Lender, Swingline Lender or LC Issuer determines that the amount of capital
required or expected to be maintained by such Lender, Swingline Lender or
LC
Issuer, the Lending Installation of such Lender, Swingline Lender or LC Issuer
or any corporation controlling such Lender, Swingline Lender or LC Issuer
is
increased as a result of a Change, then, within 15 days of demand by such
Lender, Swingline Lender or LC Issuer, the Borrower shall pay such Lender,
Swingline Lender or LC Issuer the amount necessary to compensate for any
shortfall in the rate of return on the portion of such increased capital
which
such Lender, Swingline Lender or LC Issuer reasonably determines is attributable
to this Agreement, its Outstanding Credit Exposure, its commitment to make
Swingline Loans or its Commitment to make Loans and issue or participate
in
Facility LCs or Swingline Loans, as the case may be, hereunder (after taking
into account such Lender’s, Swingline Lender’s or LC Issuer’s policies as to
capital adequacy). The Administrative Agent agrees to notify the Borrower
of any
Change within 60 days after the Administrative Agent becomes aware of such
Change. “Change”
means
(i) any change after the date of this Agreement in the Risk-Based Capital
Guidelines or (ii) any adoption of or change in any other law, governmental
or quasi-governmental rule, regulation, policy, guideline, interpretation
or
directive (whether or not having the force of law) after the date of this
Agreement which affects the amount of capital required or expected to be
maintained by any Lender, Swingline Lender LC Issuer or Lending Installation
or
any corporation controlling any Lender, Swingline Lender or LC Issuer.
“Risk-Based
Capital Guidelines”
means
(i) the risk-based capital guidelines in effect in the United States on the
date of this Agreement, including transition rules, and (ii) the
corresponding capital regulations promulgated by regulatory authorities outside
the United States implementing the July 1988 report of the Basle Committee
on
Banking Regulation and Supervisory Practices Entitled “International Convergence
of Capital Measurements and Capital Standards,” including transition
rules.
3.3 Availability
of Types of Revolving Loans.
If
(x) any Lender determines that maintenance of its Eurodollar Loans at a
suitable Lending Installation would violate any applicable law, rule,
regulation, or directive, whether or not having the force of law, or
(y) prior to the first day of any applicable Interest Period, the Required
Lenders determine that (i) deposits of a type and maturity appropriate to
match-fund Eurodollar Loans are not available or (ii) the interest rate
applicable to any Eurodollar Loans does not accurately reflect the cost of
making or maintaining such Eurodollar Loans, then (a) in the case of clause
(x) above, such Lender shall promptly notify the Borrower and the
Administrative Agent and, so long as such circumstances shall continue,
(i) such Lender shall have no obligation to make Eurodollar Loans or
convert Floating Rate Loans into Eurodollar Loans (but shall make Floating
Rate
Loans concurrently with the making of or conversion into Eurodollar Loans
by the
Lenders which are not so affected, in each case in an amount equal to such
Lender’s share of all Eurodollar Loans which would be made or converted into at
such time in the absence of such circumstances) and (ii) on the last day of
the current Interest Period for each Eurodollar Loan of such Lender (or,
in any
event, on such earlier date as may be required by the relevant law, regulation
or interpretation), such Eurodollar Loan shall, unless then paid in full,
automatically convert to a Floating Rate Loan, and (b) in the case of
clause (y) above, the Administrative Agent shall suspend the availability
of future Eurodollar Loans and any requested borrowing of, conversion into
or
continuation of a Eurodollar Loan shall instead be made as, remain or be
converted into a Floating Rate Loan. Each Floating Rate Loan made pursuant
to
clause (a) above shall remain outstanding for the same period as the
Eurodollar Loan of which such Floating Rate Loan would be a part absent the
circumstances described in such clause (a).
3.4 Funding
Indemnification.
If any
payment of a Eurodollar Loan occurs on a date which is not the last day of
the
applicable Interest Period, whether because of acceleration, prepayment or
otherwise, or if a Eurodollar Loan is not made on the date specified by the
Borrower (including in the case of any continuation of or conversion into
a
Eurodollar Loan) for any reason other than default by the Lenders, the Borrower
will indemnify each Lender for any loss or cost incurred by it resulting
therefrom, including any loss or cost in liquidating or employing deposits
acquired to fund or maintain such Eurodollar Loan.
3.5 Taxes.
(i) All
payments by the Borrower to or for the account of any Lender, Swingline Lender
or LC Issuer or the Administrative Agent hereunder or under any Note or Facility
LC Application shall be made free and clear of and without deduction for
any and
all Taxes. If the Borrower shall be required by law to deduct any Taxes from
or
in respect of any sum payable hereunder to any Lender, Swingline Lender or
LC
Issuer or the Administrative Agent, (a) the sum payable shall be increased
as necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 3.5) such Lender,
Swingline Lender or LC Issuer or the Administrative Agent (as the case may
be)
receives an amount equal to the sum it would have received had no such
deductions been made, (b) the Borrower shall make such deductions,
(c) the Borrower shall pay the full amount deducted to the relevant
authority in accordance with applicable law and (d) the Borrower shall
furnish to the Administrative Agent the original copy of a receipt evidencing
payment thereof within 30 days after such payment is made.
(ii) In
addition, the Borrower hereby agrees to pay any present or future stamp or
documentary taxes and any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under any Note or Facility
LC Application or from the execution or delivery of, or otherwise with respect
to, this Agreement or any Note or Facility LC Application (“Other
Taxes”).
(iii) The
Borrower hereby agrees to indemnify the Administrative Agent and each LC
Issuer,
Swingline Lender and Lender for the full amount of Taxes or Other Taxes
(including any Taxes or Other Taxes imposed on amounts payable under this
Section 3.5) paid by the Administrative Agent or such LC Issuer, Swingline
Lender or Lender and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto relating to this Agreement. Payments
due under this indemnification shall be made within 30 days of the date the
Administrative Agent or such LC Issuer, Swingline Lender or Lender makes
demand
therefor pursuant to Section 3.6.
(iv) Each
Lender that is not incorporated under the laws of the United States of America
or a state thereof (each a “Non-U.S.
Lender”)
agrees
that it will, within 10 Business Days after the date of this Agreement, deliver
to each of the Borrower and the Administrative Agent two duly completed copies
of whichever of the following is applicable: (a) Internal Revenue Service
Form
W-8BEN claiming eligibility for benefits of an income-tax treaty to which
the
United States of America is a party; (b) Internal Revenue Service Form W-8ECI;
(c) in the case of a Non-U.S. Lender claiming the benefits of the exemption
for
portfolio interest under section 881(c) of the Code, (x) a certificate to
the
effect that such Non-U.S. Lender is not a “bank” within the meaning of section
881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the
meaning of section 881(c)(3)(B) of the Code or a “controlled foreign
corporation” as described in section 881(c)(3)(C) of the Code and (y) Internal
Revenue Service Form W-8BEN; or (d) any other form prescribed by applicable
law
as a basis for claiming exemption from or a reduction in United States federal
withholding tax, together with such supplementary documentation as may be
prescribed by applicable law to permit the Borrower to determine the withholding
or deduction required to be made. Each Non-U.S. Lender further undertakes
to
deliver to each of the Borrower and the Administrative Agent (x) renewals
or additional copies of such form (or any successor form) on or before the
date
that such form expires or becomes obsolete, and (y) after the occurrence of
any event requiring a change in the most recent forms so delivered by it,
such
additional forms or amendments thereto as may be reasonably requested by
the
Borrower or the Administrative Agent. All forms or amendments described in
the
preceding sentence shall certify that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes, unless
an event
(including any change in a treaty, law or regulation) has occurred prior
to the
date on which any such delivery would otherwise be required which renders
all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form or amendment with respect to it and such Lender
advises the Borrower and the Administrative Agent that it is not capable
of
receiving payments without any deduction or withholding of United States
federal
income tax.
(v) For
any
period during which a Non-U.S. Lender has failed to provide the Borrower
with an
appropriate form pursuant to clause (iv) above (unless such failure is due
to a change in a treaty, law or regulation, or any change in the interpretation
or administration thereof by any governmental authority, occurring subsequent
to
the date on which a form originally was required to be provided), such Non-U.S.
Lender shall not be entitled to indemnification under this Section 3.5 with
respect to Taxes imposed by the United States;
provided
that,
should a Non-U.S. Lender which is otherwise exempt from or subject to a reduced
rate of withholding tax become subject to Taxes because of its failure to
deliver a form required under clause (iv), above, the Borrower shall take
such
steps as such Non-U.S. Lender shall reasonably request to assist such Non-U.S.
Lender to recover such Taxes.
(vi) Any
Lender that is entitled to an exemption from or reduction of withholding
tax
with respect to payments under this Agreement or any Note pursuant to the
law of
any relevant jurisdiction or any treaty shall deliver to the Borrower (with
a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law as will permit such payments to be made without withholding or at a reduced
rate.
(vii) If
the
U.S. Internal Revenue Service or any other governmental authority of the
United
States or any other country or any political subdivision thereof asserts
a claim
that the Administrative Agent did not properly withhold tax from amounts
paid to
or for the account of any Lender (because the appropriate form was not delivered
or properly completed, because such Lender failed to notify the Administrative
Agent of a change in circumstances which rendered its exemption from withholding
ineffective or for any other reason), such Lender shall indemnify the
Administrative Agent fully for all amounts paid, directly or indirectly,
by the
Administrative Agent as tax, withholding therefor or otherwise, including
penalties and interest, and including taxes imposed by any jurisdiction on
amounts payable to the Administrative Agent under this subsection, together
with
all costs and expenses related thereto (including attorneys’ fees and time
charges of attorneys for the Administrative Agent, which attorneys may be
employees of the Administrative Agent). The obligations of the Lenders under
this Section 3.5(vii) shall survive the payment of the Obligations and
termination of this Agreement.
3.6 Statements;
Survival of Indemnity.
To the
extent reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Eurodollar Loans to reduce any liability
of the
Borrower to such Lender under Sections 3.1, 3.2 and 3.5 or to avoid the
unavailability of Eurodollar Loans under Section 3.3, so long as such
designation is not, in the judgment of such Lender, disadvantageous to such
Lender. The Swingline Lender and each Lender or LC Issuer, as applicable,
shall
deliver a written statement thereof to the Borrower (with a copy to the
Administrative Agent) as to the amount due, if any, under Section 3.1, 3.2,
3.4 or 3.5. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender or LC Issuer determined such amount and
shall be final, conclusive and binding on the Borrower in the absence of
manifest error. Determination of amounts payable under such Sections in
connection with a Eurodollar Loan shall be calculated as though each Lender
funded its Eurodollar Loan through the purchase of a deposit of the type
and
maturity corresponding to the deposits described in clause (ii) of the
proviso contained in the definition of “Eurodollar Base Rate” in
Section 1.1, whether in fact that is the case or not. Unless otherwise
provided herein, the amount specified in the written statement of the Swingline
Lender or any Lender or LC Issuer shall be payable on demand after receipt
by
the Borrower of such written statement. The obligations of the Borrower under
Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of the Obligations and
termination of this Agreement.
3.7 Replacement
of Affected Lender.
At any
time any Lender (i) is affected by the circumstances described in
Section 3.1, 3.2, 3.3 or 3.5 or (ii) does not consent to an Extension
Request made pursuant to Section 2.17,
the
Borrower may replace such Lender as a party to this Agreement with one or
more
bank(s) or other financial institution(s) reasonably satisfactory to the
Administrative Agent, such bank(s) or financial institution(s) to have a
Commitment or Commitments, as the case may be, in such amounts as shall be
reasonably satisfactory to the Administrative Agent (and upon notice from
the
Borrower such Lender shall assign, without recourse or warranty, its Commitment,
its Revolving Loans, its Note and all of its other rights and obligations
hereunder to such replacement bank(s) or other financial institution(s) for
a
purchase price equal to the sum of the principal amount of the Revolving
Loans
so assigned and, as applicable, all accrued and unpaid interest thereon,
its
share of all accrued and unpaid fees, any amounts payable under Section 3.4
as a
result of such Lender receiving payment of any Eurodollar Loan prior to the
end
of an Interest Period therefor and all other obligations owed to such Lender
hereunder).
ARTICLE
4
CONDITIONS
PRECEDENT
4.1 Effectiveness.
This
Agreement shall not become effective until the Borrower has paid, or made
arrangements satisfactory to the Administrative Agent for payment of, all
fees
and other amounts payable by the Borrower to the Administrative Agent, the
Arrangers and the Lenders on or before the Closing Date in connection with
this
Agreement (including, to the extent invoiced, out-of-pocket expenses of the
Administrative Agent and the Arrangers) and furnished the Administrative
Agent
(with sufficient copies for the Lenders) each of the following, in form and
substance satisfactory to the Administrative Agent:
(i) the
bylaws of the Borrower, certified by the Secretary or an Assistant Secretary
of
the Borrower to be correct and complete and in full force and effect; the
charter documents of the Borrower, certified by the Secretary of State of
Washington; and a certificate of good standing for the Borrower from the
Secretary of State of Washington;
(ii) resolutions
of the Board of Directors of the Borrower, certified by the Secretary or
an
Assistant Secretary of the Borrower, authorizing the execution, delivery
and
performance of the Loan Documents;
(iii) an
incumbency certificate, executed by the Secretary or Assistant Secretary
of the
Borrower, which shall identify by name and title and bear the signatures
of the
Authorized Officers, upon which certificate the Administrative Agent and
the
Lenders shall be entitled to rely until informed of any change in writing
by the
Borrower;
(iv) a
certificate, signed by the Chief Financial Officer or the Vice President
Finance
and Treasurer of the Borrower, stating that on the date of the effectiveness
hereof no Default or Unmatured Default has occurred and is continuing and
that
the representations and warranties contained in Article 5 are true and
correct on such date except to the extent any such representation or warranty
is
stated to relate solely to an earlier date, in which case as of such earlier
date;
(v) a
written
opinion of Xxxxxxx Coie LLP, counsel for the Borrower, as to such matters
as the
Administrative Agent may reasonably request;
(vi) the
Fee
Letter, the Swingline Note and any Revolving Notes requested by Lenders pursuant
to Section 2.10, payable to the order of such requesting Lender, in each
case duly executed by the Borrower;
(vii) such
funds-transfer agreements, authorizations, instructions and related documents
as
the Administrative Agent may have reasonably requested, duly executed by
the
Borrower and/or other appropriate Persons;
(viii) an
executed counterpart of the Account Designation Letter;
(ix) a
certificate, for the benefit of itself and the Lenders, provided by the Borrower
that sets forth information required by the Patriot Act (as defined in Section
9.15) including, without limitation, the identity of the Borrower, the name
and
address of the Borrower and other information that will allow the Administrative
Agent or any Lender, as applicable, to identify the Borrower in accordance
with
the Patriot Act; and
(x) such
other documents as the Administrative Agent or its counsel may have reasonably
requested.
4.2 Each
Credit Extension.
The
Lenders, Swingline Lender and the LC Issuers shall not be required to make
any
Credit Extension unless on the applicable Credit Extension Date:
(i) no
Default or Unmatured Default exists or will result from such Credit
Extension;
(ii) the
representations and warranties contained in Article 5 are true and correct
as of such Credit Extension Date except to the extent any such representation
or
warranty is stated to relate solely to an earlier date, in which case such
representation or warranty shall have been true and correct on and as of
such
earlier date; and
(iii) all
legal
matters incident to the making of such Credit Extension are reasonably
satisfactory to the Administrative Agent, the Lenders and their
counsel.
Each
Borrowing Notice with respect to a Loan and each request for issuance of
a
Facility LC shall constitute a representation and warranty by the Borrower
that
the conditions contained in Sections 4.2(i) and (ii) have been satisfied.
The Administrative Agent, at the request of any Lender, may require a duly
completed compliance certificate in substantially the form of Exhibit D as
a
condition to making a Credit Extension.
ARTICLE
5
REPRESENTATIONS
AND WARRANTIES
The
Borrower represents and warrants to the Lenders that:
5.1 Corporate
Existence, etc.
Each of
the Borrower and its Significant Subsidiaries: (a) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation; (b) has all requisite corporate power,
and has all material governmental licenses, authorizations, consents and
approvals, necessary to own its Property and carry on its business as now
being
conducted; and (c) is qualified to do business in all jurisdictions in
which the nature of the business conducted by it makes such qualification
necessary and where failure so to qualify could reasonably be expected have
a
Material Adverse Effect.
5.2 Litigation
and Contingent Obligations.
There
are not, in any court or before any referee or arbitrator of any kind or
before
or by any governmental body, any actions, suits or proceedings pending or,
to
the Borrower’s knowledge, threatened (i) against or affecting the Borrower
or any Subsidiary or any of their respective businesses or properties except
for
actions, suits or proceedings (a) that exist as of the date of this
Agreement and are disclosed in the Borrower’s Annual Report on Form 10-K for the
year ended December 31, 2006 or (b) which, singly or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect,
(ii) which seeks to prevent, enjoin or delay the making of any Credit
Extension or (iii) affecting in an adverse manner the binding nature,
validity or enforceability of any Loan Document. Other than any liability
incident to any action, suit or proceeding described in subclause (i)(a)
or
(i)(b) of the foregoing sentence, neither the Borrower nor any Subsidiary
has
any contingent obligations (including Contingent Obligations) that, singly
or in
the aggregate, could reasonably be expected to have a Material Adverse Effect,
except as disclosed in the report referred to in subclause (i)(a) of the
preceding sentence.
5.3 No
Breach.
None of
the execution and delivery of the Loan Documents, the consummation of the
transactions therein contemplated or compliance with the terms and provisions
thereof will (i) conflict with or result in a breach of, or require any
consent under, the Articles of Incorporation or Bylaws of the Borrower, or
(except for notices to and consents of the Washington Utilities and
Transportation Commission referred to in Section 5.5) any applicable law,
rule or regulation, or any order, writ, injunction or decree of any court
or
governmental authority or agency, or any agreement or instrument to which
the
Borrower or any of its Subsidiaries is a party or by which it is bound or
to
which it is subject, (ii) constitute a default under any such agreement or
instrument or (iii) result in or require the creation or imposition of any
Lien upon any of the revenues or assets of the Borrower or any of its
Subsidiaries pursuant to the terms of any such agreement or
instrument.
5.4 Corporate
Action.
The
Borrower has all necessary corporate power and authority to execute, deliver
and
perform its obligations under this Agreement and the other Loan Documents;
the
execution, delivery and performance by the Borrower of its obligations under
this Agreement and the other Loan Documents have been duly authorized by
all
necessary corporate action on its part; this Agreement has been, and each
other
Loan Document when delivered hereunder will have been, duly and validly executed
and delivered by the Borrower; and this Agreement constitutes, and each other
Loan Document when so delivered will constitute, a legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance
with
its terms, except as limited by applicable bankruptcy laws or similar laws
of
general applicability affecting creditors’ rights.
5.5 Approvals.
Except
for any required consents of the Washington Utilities and Transportation
Commission which are and shall continue to be in full force and effect and
required notices to such commission which have been given, no authorizations,
approvals or consents of, and no filings (other than informational filings
which
have been made) or registrations with, any governmental or regulatory authority
or agency are necessary for the execution, delivery or performance by the
Borrower of this Agreement or any other Loan Document or for the validity
or
enforceability hereof or thereof.
5.6 Use
of
Proceeds.
Neither
the Borrower nor any of its Subsidiaries is engaged principally, or as one
of
its important activities, in the business of extending credit for the purpose,
whether immediate, incidental or ultimate, of buying or carrying margin stock,
as defined in Regulation U, and no part of the proceeds of any Loan will
be used
to buy or carry any margin stock. No part of the proceeds of any Loan will
be
used to acquire stock of any corporation the board of directors of which
has
publicly stated its opposition to such acquisition or fails to endorse such
acquisition.
5.7 ERISA.
The
Borrower and its ERISA Affiliates have fulfilled their respective obligations
under the minimum funding standards of ERISA and the Code with respect to
each
Benefit Plan, are in compliance in all material respects with the presently
applicable provisions of ERISA and the Code, and have not incurred any liability
pursuant to Title IV of ERISA to the PBGC or any liability in excess of
$10,000,000, individually or in the aggregate, to any Benefit Plan.
5.8 Taxes.
United
States Federal income tax returns of the Borrower and its Subsidiaries have
been
(a) examined and closed through the period ended December 31, 2000 and (b)
examined through the period ended December 31, 2003, provided that the
Borrower is appealing certain determinations made for the Borrower’s fiscal
years 2001, 2002 and 2003. The Borrower and its Subsidiaries have filed all
United States Federal and state income tax returns which are required to
be
filed by them and have paid all taxes due pursuant to such returns or pursuant
to any assessment received by the Borrower or any of its Subsidiaries, except
such taxes, if any, as are being contested in good faith and by proper
proceedings. The charges, accruals and reserves on the books of the Borrower
and
its Subsidiaries in respect of taxes and other governmental charges are,
in the
opinion of the Borrower, adequate.
5.9 Material
Adverse Change.
As of
the date of this Agreement and since December 31, 2006, there has been no
change in the business, Property, condition (financial or otherwise), operations
or prospects of the Borrower and its Subsidiaries taken as whole, as reflected
in the financial statements referred to in Schedule 5.10, that could reasonably
be expected to have a Material Adverse Effect.
5.10 Financial
Statements.
Schedule 5.10 sets forth a complete list of the financial statements submitted
prior to the date hereof by the Borrower to the Lenders in connection with
this
Agreement. All financial statements listed in Schedule 5.10 or delivered
pursuant to Section 6.9(i) or (ii) are complete and correct and
present fairly, in accordance with Agreement Accounting Principles, the
consolidated financial position of the Borrower and its 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 the Borrower
and its Subsidiaries for the respective periods to which such statements
relate.
5.11 Environmental
Matters.
In the
ordinary course of its business, the officers of the Borrower consider the
effect of Environmental Laws on the business of the Borrower and its
Subsidiaries, in the course of which they identify and evaluate potential
risks
and liabilities accruing to the Borrower and its Subsidiaries due to
Environmental Laws. On the basis of this consideration, the Borrower has
concluded that the application of Environmental Laws to it and its Subsidiaries
could not reasonably be expected to have a Material Adverse Effect. Neither
the
Borrower nor any Subsidiary has received any notice to the effect that its
operations are not in material compliance with any of the requirements of
applicable Environmental Laws or are the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond
to a
release of any toxic or hazardous waste or substance into the environment,
which
noncompliance or remedial action could reasonably be expected to have a Material
Adverse Effect.
5.12 Investment
Company Act.
Neither
the Borrower nor any Subsidiary is an “investment company” or a company
“controlled” by an “investment company,” within the meaning of the Investment
Company Act of 1940.
5.13 Subsidiaries.
Schedule 5.13 contains an accurate list of all Subsidiaries of the Borrower
as
of the date of this Agreement, setting forth their respective jurisdictions
of
organization and the percentage of their respective capital stock or other
ownership interests owned by the Borrower or other Subsidiaries. All of the
issued and outstanding shares of capital stock or other ownership interests
of
such Subsidiaries have been (to the extent such concepts are relevant with
respect to such ownership interests) duly authorized and issued and are fully
paid and nonassessable.
5.14 Accuracy
of Information.
No
information, exhibit or report furnished by the Borrower or any Subsidiary
to
the Administrative Agent or any Arranger or Lender in connection with the
negotiation of, or compliance with, the Loan Documents contained any material
misstatement of fact, or omitted to state a material fact or any fact necessary
to make the statements contained therein not misleading, at the time so
furnished.
5.15 Compliance
with Laws, Etc.
The
Borrower and its Subsidiaries are in compliance in all material respects
with
(i) all applicable statutes, rules, regulations, orders and restrictions
of any
domestic or foreign government or any instrumentality or agency thereof having
jurisdiction over the conduct of their respective businesses or the ownership
of
their respective Property and (ii) all indentures, agreements and other
instruments binding upon them or upon their respective Property, except for
any
failure to comply with any of the foregoing which could not reasonably be
expected to have a Material Adverse Effect.
5.16 Insurance.
The
Borrower and its Subsidiaries (i) maintain insurance with financially sound
and reputable insurance companies (or through a self-insurance program) on
all
their Property of a character usually insured by entities in the same or
similar
businesses similarly situated, against loss or damage of the kinds and in
the
amounts as customarily insured against by such entities, and (ii) maintain
such other insurance as is usually carried by such entities.
5.17 Properties.
Each of
the Borrower and its Subsidiaries has good title to, or valid leasehold
interests in, all of its real and personal properties material to its business,
except for minor defects in title that do not interfere with its ability
to
conduct its business as currently conducted or to utilize such properties
for
their intended purposes.
5.18 Anti-Terrorism
Laws.
Neither
the Borrower nor any of its Subsidiaries is an “enemy” or an “ally of the enemy”
within the meaning of Section 2 of the Trading with the Enemy Act of the
United
States of America (50 U.S.C. App. §§ 1 et
seq.),
as
amended. Neither the Borrower nor any of its Subsidiaries is in violation
of (i)
the Trading with the Enemy Act, as amended, (ii) any of the foreign assets
control regulations of the United States Treasury Department (31 CFR, Subtitle
B, Chapter V, as amended) or any enabling legislation or executive order
relating thereto or (iii) the Patriot Act (as defined in Section 9.15). Neither
the Borrower nor any of its Subsidiaries (a) is a blocked person described
in
section 1 of the Anti-Terrorism Order or (b) to its knowledge, engages in
any
dealings or transactions, or is otherwise associated, with any such blocked
person.
5.19 Compliance
with OFAC Rules and Regulations.
Neither
the Borrower nor any of its Subsidiaries or Affiliates (i) is a Sanctioned
Person, (ii) has more than 15% of its assets in Sanctioned Countries, or
(iii)
derives more than 15% of its operating income from investments in, or
transactions with Sanctioned Persons or Sanctioned Countries. No part of
the
proceeds of any Loan or Facility LC will be used directly or indirectly to
fund
any operations in, finance any investments or activities in or make any payments
to, a Sanctioned Person or a Sanctioned Country.
5.20 Compliance
with FCPA.
Each of
the Borrower and its Subsidiaries is in compliance with the Foreign Corrupt
Practices Act, 15 U.S.C. §§ 78dd-1, et
seq.,
and any
foreign counterpart thereto. None of the Borrower or its Subsidiaries has
made a
payment, offering, or promise to pay, or authorized the payment of, money
or
anything of value (i) in order to assist in obtaining or retaining business
for or with, or directing business to, any foreign official, foreign political
party, party official or candidate for foreign political office, (ii) to a
foreign official, foreign political party or party official or any candidate
for
foreign political office, and (iii) with the intent to induce the recipient
to misuse his or her official position to direct business wrongfully to such
Person or to any other Person, in violation of the Foreign Corrupt Practices
Act, 15 U.S.C. §§ 78dd-1, et
seq.
ARTICLE
6
COVENANTS
So
long
as any Lender has any Commitment hereunder, any Facility LC is outstanding
or
any Obligation is unpaid, the Borrower shall, unless the Required Lenders
otherwise consent in writing:
6.1 Preservation
of Existence and Business.
Preserve and maintain, and cause each Significant Subsidiary to preserve
and
maintain, its corporate existence and all of its material rights, privileges,
licenses and franchises, except as permitted by Sections 6.12 and 6.13, and
carry on and conduct its business in substantially the same manner and in
substantially the same fields of enterprise as it is presently
conducted.
6.2 Preservation
of Property.
Maintain, and cause each Significant Subsidiary to maintain, all of its Property
necessary to operate its business in good working order and condition, ordinary
wear and tear excepted (it being understood that this covenant relates only
to
the good working order and condition of such Property and shall not be construed
as a covenant of the Borrower or any Significant Subsidiary not to dispose
of
any such Property by sale, lease, transfer or otherwise or to discontinue
operation thereof if the Borrower reasonably determines that such
discontinuation is necessary).
6.3 Payment
of Obligations.
Pay and
discharge, and cause each Significant Subsidiary to pay and discharge, before
the same shall become delinquent, (i) all taxes, assessments and
governmental charges or levies imposed upon it or upon its property, and
(ii) all lawful claims which, if unpaid, might by law become a Lien upon
its property;
provided
that the
Borrower and its Significant Subsidiaries shall not be required to pay or
discharge any such tax, assessment, charge or claim (a) which is being
contested by it in good faith and by proper procedures and with respect to
which
appropriate reserves are being maintained in accordance with Agreement
Accounting Principles or (b) the non-payment of which could not reasonably
be expected to have a Material Adverse Effect.
6.4 Compliance
with Applicable Laws and Contracts.
Comply,
and cause each Subsidiary to comply, with the requirements of all applicable
laws, rules, regulations and Governmental Approvals, and all orders, writs,
injunctions or decrees of any court or governmental authority or agency,
including Environmental Laws, if failure to comply with such requirements
could
reasonably be expected to have a Material Adverse Effect.
6.5 Preservation
of Loan Document Enforceability.
Take
all reasonable actions (including obtaining and maintaining in full force
and
effect consents and Governmental Approvals), and cause each Subsidiary to
take
all reasonable actions, that are required so that its obligations under the
Loan
Documents will at all times be legal, valid, binding and enforceable in
accordance with their respective terms.
6.6 Insurance.
Maintain, and cause each Significant Subsidiary to maintain, with responsible
insurance companies or through the Borrower’s program of self-insurance,
insurance against at least such risks and in at least such amounts as is
customarily maintained by similar businesses, or as may be required by any
applicable law, rule or regulation, any Governmental Approval, or any order,
writ, injunction or decree of any court or governmental authority or
agency.
6.7 Use
of
Proceeds.
Use,
directly or indirectly, the Facility LCs and the proceeds of the Loans for
general corporate purposes of the Borrower (in compliance with all applicable
legal and regulatory requirements), including commercial paper backup and
working capital and to support hedging activities of the Borrower.
6.8 Visits,
Inspections and Discussions.
Keep,
and cause each Subsidiary to keep, proper books of record and account in
which
full, true and correct entries are made of all dealings and transactions
in
relation to it business and activities, and permit, and cause each Subsidiary
to
permit, representatives of any Lender or the Administrative Agent, during
normal
business hours and upon reasonable notice to the Borrower, to examine, copy
and
make extracts from its books and records, to inspect its Property, and to
discuss its business and affairs with its officers and independent certified
accountants, all to the extent reasonably requested by such Lender or the
Administrative Agent;
provided
that the
Borrower reserves the right to restrict access to any of its generating
facilities in accordance with reasonably adopted procedures relating to safety
and security, and to the extent reasonably requested to maintain normal
operations of the Borrower;
provided,
further,
that,
Sections 9.6 and 10.8 notwithstanding, the costs and expenses incurred by
any
Lender or the Administrative Agent or their agents or representatives in
connection with any such examinations, visits or discussions occurring or
made
prior to the occurrence of any Default shall be for the account of such Lender
or the Administrative Agent, as applicable.
6.9 Information
to Be Furnished.
Furnish
to the Administrative Agent, with copies sufficient for each
Lender:
(i) 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,
a
copy of the Quarterly Report on Form 10-Q (or any successor form) for the
Borrower for such quarter;
(ii) as
soon
as available and in any event within 120 days after the end of each fiscal
year
of the Borrower, a copy of the Annual Report on Form 10-K (or any successor
form) for the Borrower for such year, together with a copy of the accompanying
report of the Borrower’s independent certified public accounting
firm;
(iii) at
the
time that financial statements are furnished pursuant to Section 6.9(i) or
(ii), a certificate of the Chief Financial Officer, the Treasurer, an Assistant
Treasurer or any other financial officer of the Borrower substantially in
the
form of Exhibit D;
(iv) promptly
upon the filing thereof, copies of all registration statements, monthly or
other
regular reports, including reports on Form 8-K (or any successor form), filed
by
the Borrower with the SEC;
(v) promptly
upon request from time to time, such other information regarding the business,
affairs, insurance or financial condition of the Borrower or any of its
Subsidiaries (including any Benefit Plan and any reports of other information
required to be filed under ERISA) as any Lender or the Administrative Agent
may
reasonably request; and
(vi) within
5
days after the occurrence thereof, notice of (a) any Default or Unmatured
Default and (b) any circumstance that could reasonably be expected to have
a Material Adverse Effect or an adverse effect on the binding nature, validity
or enforceability of any Loan Document as an obligation of the
Borrower.
6.10 Liens.
Not
permit to exist, and not permit any Significant Subsidiary to permit to exist,
any Lien upon any of its property, assets or revenues, whether now owned
or
hereafter acquired, except for:
(i) Liens
for
taxes, assessments or charges imposed on the Borrower or any Significant
Subsidiary or any of their property by any governmental authority which are
not
yet due or are being contested in good faith by appropriate proceedings if
adequate reserves with respect thereto are maintained on the books of the
Borrower or such Subsidiary, as the case may be, in accordance with Agreement
Accounting Principles;
(ii) Liens
imposed by law, such as carriers’, warehousemen’s, mechanics’, materialmen’s,
repairmen’s or other like Liens, incurred in the ordinary course of business and
securing obligations that are not yet due or that are being contested in
good
faith by appropriate proceedings, and Liens arising out of judgments or awards
which secure payment of legal obligations that would not constitute a
Default;
(iii) pledges
or deposits in connection with worker’s compensation, unemployment insurance and
other social security laws, or to secure the performance of bids, tenders,
contracts (other than for borrowed money), leases, statutory obligations,
surety
or appeal bonds, or indemnity, performance or other similar bonds, in the
ordinary course of business;
(iv) easements,
rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business and encumbrances consisting of zoning restrictions,
easements, licenses, restrictions on the use of property or minor imperfections
in title thereto which, in the aggregate, are not material in amount, and
which
do not in any case materially detract from the value of any material property
subject thereto or interfere with the ordinary conduct of the business of
the
Borrower or any of its Significant Subsidiaries;
(v) Liens
existing on the date hereof and described in Schedule 6.10;
(vi) Permitted
Encumbrances (as defined in the Mortgages);
(vii) Liens
securing the payment of Tax-Free Debt;
provided
that
each such Lien shall extend only to (a) the property, and proceeds thereof,
being financed by the Tax-Free Debt secured thereby or (b) securities issued
under and secured by the Mortgages;
(viii) Liens
over all or any part of the assets of the Borrower or any Significant Subsidiary
constituting a specific construction project or generating plant as security
for
any indebtedness incurred for the purpose of financing all or such part,
as the
case may be, of such construction project or generating plant, and Liens
and
charges incidental to such construction;
(ix) the
right
reserved to, or vested in, any municipality or public authority by the terms
of
any right, power, franchise, grant, license or permit, or by any provision
of
law, to purchase or recapture or designate a purchaser of any
property;
(x) Liens
on
property or assets of any Significant Subsidiary in favor of the Borrower
or any
other Significant Subsidiary;
(xi) Liens
with respect to which cash in the amount secured by such Liens has been
deposited with the Administrative Agent;
(xii) Liens
incurred in connection with Qualified Receivables Transactions;
(xiii) Liens
on
specific assets hereafter acquired which are created or assumed
contemporaneously with, or within 120 days after, such acquisition, for the
sole
purpose of financing or refinancing the acquisition of such assets, together
with the proceeds and products of such assets;
(xiv) Liens
on
conservation investment assets as security for obligations incurred in financing
or refinancing bondable conservation investments in accordance with the laws
of
the State of Washington;
(xv) Liens
securing Capitalized Lease Obligations;
provided
that any
such Lien attaches solely to the property so leased and proceeds thereof;
and
(xvi) other
Liens securing Indebtedness in an aggregate amount not exceeding
$150,000,000.
6.11 Debt
to Capitalization Ratio.
Not
permit the principal amount of Consolidated Indebtedness to exceed 65% of
Total
Capitalization as of the last day of any fiscal quarter of the
Borrower.
6.12 Merger
and Consolidation.
Not
merge or consolidate with or into any Person, unless (i) immediately after
giving effect thereto, no event shall occur and be continuing which constitutes
a Default or an Unmatured Default, (ii) the surviving or resulting Person,
as the case may be, assumes and agrees in writing to pay and perform all
of the
obligations of the Borrower hereunder, (iii) the surviving or resulting
Person, as the case may be, qualifies to do business in the State of Washington,
and (iv) the surviving or resulting Person, as the case may be, has a net
worth (as determined in accordance with Agreement Accounting Principles)
at
least equal to the net worth of the Borrower at the end of the fiscal quarter
immediately preceding the effective date of such consolidation or
merger.
6.13 Disposition
of Assets.
Not
sell, lease, assign, transfer or otherwise dispose of any asset or interest
therein, except that this Section 6.13 shall not apply to (i) any
disposition of any asset or any interest therein in the ordinary course of
business, (ii) any disposition of obsolete or retired property not used or
useful in its business, (iii) any disposition of any asset or interest
therein (a) for cash or cash equivalents or (b) in exchange for
utility plant, equipment or other utility assets, other than notes or other
obligations, in each case equal to the fair-market value (as determined in
good
faith by the Board of Directors of the Borrower) of such asset or interest
therein, and provided
that
such disposition does not constitute a disposition of all or substantially
all
of the assets of the Borrower, (iv) any disposition of an asset or any
interest therein (exclusive of any disposition permitted by clause (v)) in
exchange for notes or other obligations substantially equal to the fair-market
value (as determined in good faith by the management of the Borrower or,
if the
consideration for such disposition exceeds $100,000,000, by the Board of
Directors of the Borrower) of such asset or interest therein, provided that
the
aggregate amount of notes or other obligations received after the date hereof
from any one obligor in one transaction or a series of transactions shall
not
exceed 15% of the net book value of the assets of the Borrower, (v) any
disposition of accounts receivable, notes receivable or unbilled revenue,
the
rights related to any of the foregoing and property related to any of the
foregoing in connection with Qualified Receivables Transactions and
(vi) any disposition of an asset or interest therein (exclusive of any
disposition permitted under any of the foregoing clauses (i) through (v))
to an Affiliate of the Borrower in exchange for notes or other obligations
substantially equal to the fair-market value (as determined in good faith
by the
Board of Directors of the Borrower) of such asset or interest therein, provided
that the aggregate amount of notes or other obligations received by the Borrower
from Affiliates of the Borrower in exchange for any asset or interest therein
after the date hereof shall not exceed 7.5% of the net book value of the
assets
of the Borrower.
6.14 Transactions
with Affiliates.
Without
limiting Section 6.13(v), not, and not permit any Subsidiary to, enter into
any transaction (including the purchase or sale of any Property or service)
with, or make any payment or transfer to, any Affiliate except (a) in the
ordinary course of business and pursuant to the reasonable requirements of
the
Borrower’s or such Subsidiary’s business and upon fair and reasonable terms no
less favorable to the Borrower or such Subsidiary than the Borrower or such
Subsidiary would obtain in a comparable arm’s-length transaction, (b) with
or to a Subsidiary or (c) in connection with a Qualified Receivables
Transaction permitted under this Agreement.
6.15 Investments.
Not,
and not permit any Subsidiary to, make or suffer to exist any Investments
(including loans and advances to, and other Investments in, Subsidiaries),
or
commitments therefor, create any Subsidiary, become or remain a partner in
any
partnership or joint venture or make any Acquisition, except:
(i) Investments
made in the ordinary course of business in connection with customary
cash-management operations;
(ii) existing
Investments in Subsidiaries and other Investments in existence on the date
hereof and described in Schedule 6.15;
(iii) Permitted
Acquisitions;
(iv) any
loan
or advance to the Borrower by a Subsidiary;
(v) capital
contributions (whether in the form of cash, a note or other assets) or loans
to
a special-purpose entity created solely to engage in a Qualified Receivables
Transaction and resulting from transfers of assets permitted by Section 6.13(v)
to such a special-purpose entity;
(vi) derivative
financial instruments and other similar instruments entered into in the ordinary
course of business for bona fide hedging purposes and not for speculation;
and
(vii) other
Investments not exceeding $50,000,000 at any time outstanding.
ARTICLE
7
DEFAULTS
The
occurrence of any one or more of the following events shall constitute a
Default:
7.1 Any
representation or warranty made or deemed made by the Borrower or any of
its
Subsidiaries to the Lenders or the Administrative Agent under or in connection
with this Agreement, any other Loan Document, or any certificate or information
delivered in connection with this Agreement or any other Loan Document shall
be
materially false on the date as of which made.
7.2 Nonpayment
of principal of any Loan when due, nonpayment of any Reimbursement Obligation
within two Business Days after the same becomes due (provided
that the
Borrower receives notice of the existence of such Reimbursement Obligation),
or
nonpayment of any interest, fee or other obligation under any of the Loan
Documents within five days after the same becomes due.
7.3 The
breach by the Borrower of any of the terms or provisions of Section 6.1,
6.6, 6.7, 6.11, 6.12, 6.13 or 6.15.
7.4 The
breach by the Borrower (other than a breach which constitutes a Default under
another Section of this Article 7) of any of the terms or provisions
of this Agreement or any other Loan Document which is not remedied within
thirty
days after written notice from the Administrative Agent or any
Lender.
7.5 Failure
of the Borrower and/or any Subsidiaries to pay when due any Indebtedness
aggregating in excess of $25,000,000, or the equivalent thereof in any
currencies (“Material
Indebtedness”);
or
the default by the Borrower and/or any Subsidiaries in the performance (beyond
the applicable grace period with respect thereto, if any) of any term, provision
or condition contained in any agreement under which any Material Indebtedness
was created or is governed, or any other event shall occur or condition exist,
if the effect of such default, event or condition is to cause, or to permit
the
holder or holders of such Material Indebtedness to cause, such Material
Indebtedness to become due prior to its stated maturity; or any Material
Indebtedness of the Borrower and/or any Subsidiaries shall be declared to
be due
and payable or required to be prepaid or repurchased (other than by a regularly
scheduled payment) prior to the stated maturity thereof; or the Borrower
or any
of its Subsidiaries shall not pay, or shall admit in writing its inability
to
pay, its debts generally as they become due.
7.6 The
Borrower or any Significant Subsidiary shall (i) have an order for relief
entered with respect to it under the Federal bankruptcy laws as now or hereafter
in effect, (ii) make an assignment for the benefit of creditors,
(iii) apply for, seek, consent to or acquiesce in the appointment of a
receiver, custodian, trustee, examiner, liquidator or similar official for
it or
any of its Property that, when combined with the Property of any of its
Subsidiaries that is also the subject of any such action or acquiescence,
constitutes a Substantial Portion of the Property of it and its Subsidiaries,
(iv) institute any proceeding seeking an order for relief under the Federal
bankruptcy laws as now or hereafter in effect or seeking to adjudicate it
a
bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts
under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any
corporate, partnership or similar action to authorize or effect any of the
foregoing actions set forth in this Section 7.6 or (vi) fail to
contest in good faith any appointment or proceeding described in
Section 7.7.
7.7 Without
the application, approval or consent of the Borrower or any Significant
Subsidiary, a receiver, trustee, examiner, liquidator or similar official
shall
be appointed for the Borrower or such Significant Subsidiary or any of its
Property that, when combined with the Property of any of such Person’s
Subsidiaries that is also the subject of any such appointment, constitutes
a
Substantial Portion of the Property of such Person and its Subsidiaries,
or a
proceeding described in Section 7.6(iv) shall be instituted against the
Borrower or any Significant Subsidiary, and such appointment continues
undischarged, or such proceeding continues undismissed or unstayed, for a
period
of 60 consecutive days.
7.8 Any
court, government or governmental agency shall condemn, seize or otherwise
appropriate, or take custody or control of, all or any portion of the Property
of the Borrower or any Significant Subsidiary which, when taken together
with
all other Property of such Person and its Subsidiaries so condemned, seized,
appropriated, or taken custody or control of during the twelve-month period
ending with the month in which any such action occurs, constitutes a Substantial
Portion of the Property of such Person and its Subsidiaries.
7.9 The
Borrower and/or any Subsidiaries, as applicable, shall fail within 60 days
to
pay, bond or otherwise discharge one or more (i) judgments or orders for
the payment of money in excess of $25,000,000 (or the equivalent thereof
in any
currencies) in the aggregate, or (ii) nonmonetary judgments or orders
which, individually or in the aggregate, could reasonably be expected to
have a
Material Adverse Effect, which judgments or orders, in any such case, are
not
stayed on appeal or otherwise being appropriately contested in good
faith.
7.10 The
Borrower and/or any of its Subsidiaries shall (i) be the subject of any
proceeding or investigation pertaining to the release by the Borrower, any
Subsidiary or any other Person of any toxic or hazardous waste or substance
into
the environment, or (ii) violate any Environmental Law, which, in the case
of an event described in clause (i) or clause (ii), could reasonably be
expected to have a Material Adverse Effect.
7.11 Any
Change in Control shall occur.
7.12 The
Borrower and/or any ERISA Affiliates thereof incur any liability to the PBGC
pursuant to Title IV of ERISA (other than liability for premium payments
which
are paid when due) or to a Benefit Plan in excess of $10,000,000 in the
aggregate pursuant to Title IV of ERISA, or the Borrower and/or any ERISA
Affiliates thereof incur, or receive notice of, any withdrawal liability
pursuant to Title IV of ERISA to or from a Benefit Plan or Multiemployer
Benefit
Plan (determined as of the date of notice of such withdrawal liability) in
excess of $10,000,000 in the aggregate.
7.13 Any
of
the following events occurs with respect to any Benefit Plan of the Borrower
or
any ERISA Affiliate thereof: (a) a Reportable Event, (b) the failure
to make a required installment or other payment (within the meaning of
section 302(f) of ERISA), (c) the appointment of a trustee to
administer any such Benefit Plan, (d) the institution by the PBGC of
proceedings to terminate any such Benefit Plan, (e) the implementation by
the Borrower or any ERISA Affiliate thereof of any steps to terminate any
such
Benefit Plan, or (f) the receipt of notice by the Borrower or any ERISA
Affiliate thereof that any Multiemployer Benefit Plan is in reorganization
or is
insolvent and, in the case of any event described in clauses (a) through
(f) above, such occurrence, individually or together with all other such
occurrences, subjects the Borrower and/or any ERISA Affiliates thereof to
liability in excess of $25,000,000 in the aggregate.
ARTICLE
8
ACCELERATION,
WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration.
(i) If
any
Default described in Section 7.6 or 7.7 occurs with respect to the
Borrower, the obligations of the Lenders to make Revolving Loans hereunder,
the
obligation of the Swingline Lender to make Swingline Loans hereunder and
the
obligation and power of the LC Issuers to issue Facility LCs shall automatically
terminate, and the Obligations (including the obligation to provide cash
collateral pursuant to the last sentence of Section 2.16.1) shall
immediately become due and payable without any election or action on the
part of
the Administrative Agent, any LC Issuer,
the
Swingline Lender
or any
Lender. If any other Default occurs and is continuing, the Required Lenders
(or
the Administrative Agent with the consent of the Required Lenders) may terminate
or suspend the obligations of the Lenders to make Revolving Loans hereunder,
the
obligation and the power of the Swingline Lender to make Swingline Loans
hereunder and the obligation and power of the LC Issuers to issue Facility
LCs,
or declare the Obligations to be due and payable, or both, whereupon such
obligations of the Lenders, such obligation and power of the Swingline Lender
and such obligation and power of the LC Issuers shall be terminated or suspended
and/or the Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which the Borrower
hereby expressly waives.
(ii) If,
within 30 days after acceleration of the maturity of the Obligations or
termination of the obligations of the Lenders to make Revolving Loans hereunder,
the obligation and the power of the Swingline Lender to make Swingline Loans
hereunder and the obligation and power of the LC Issuers to issue Facility
LCs
as a result of any Default (other than any Default described in Section 7.6
or 7.7 with respect to the Borrower) and before any judgment or decree for
the
payment of the Obligations due shall have been obtained or entered, the Required
Lenders (in their sole discretion) shall so direct, the Administrative Agent
shall, by notice to the Borrower, rescind and annul such acceleration and/or
termination.
8.2 Amendments.
Neither
this Agreement nor any provision hereof may be waived, amended or otherwise
modified except pursuant to an agreement or agreements in writing entered
into
by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders;
provided
that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any
Loan or Reimbursement Obligation or the rate of interest thereon, or reduce
any
fees payable hereunder, without the written consent of each Lender affected
thereby (and the Swingline Lender, if affected thereby), (iii) postpone the
scheduled date of payment of the principal amount of any Loan or Reimbursement
Obligation, any interest thereon or any fees payable hereunder, reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date
of
expiration of any Commitment, without the written consent of each Lender
affected thereby (and the Swingline Lender, if affected thereby),
(iv) change Section 11.2 in a manner that would alter the pro
rata
sharing
of payments required thereby, without the written consent of each Lender,
or
(v) change any of the provisions of this Section, the definition of
“Required Lenders” or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder
or
make any determination or grant any consent hereunder, without the written
consent of each Lender; further
provided
that no
such agreement shall amend, modify or otherwise affect the rights or duties
of
the Administrative Agent, the Swingline Lender or any LC Issuer or Arranger
hereunder without the prior written consent of the Administrative Agent,
Swingline Lender or such LC Issuer or Arranger, as the case may be.
8.3 Preservation
of Rights.
No
delay or omission of any Lender, the Swingline Lender, any LC Issuer or the
Administrative Agent to exercise any right under this Agreement or any Note
shall impair such right or be construed to be a waiver of any Default or
Unmatured Default or an acquiescence therein, and the making of a Credit
Extension notwithstanding the existence of a Default or Unmatured Default
or the
inability of the Borrower to satisfy any other condition precedent to such
Credit Extension shall not constitute any waiver or acquiescence. Any single
or
partial exercise of any such right shall not preclude other or further exercise
thereof or the exercise of any other right, and no waiver, amendment or other
variation whatsoever of the terms, conditions or provisions of this Agreement
or
any Note shall be valid unless in a writing signed by the Lenders required
pursuant to Section 8.2, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or afforded
by law shall be cumulative and shall be available to the Administrative Agent,
the Swingline Lender, the LC Issuers and the Lenders until the Obligations
have
been paid in full and the Commitments have terminated.
ARTICLE
9
GENERAL
PROVISIONS
9.1 Survival
of Representations.
All
representations and warranties of the Borrower contained in this Agreement
shall
survive the making of the Credit Extensions herein contemplated.
9.2 Governmental
Regulation.
Anything contained in this Agreement to the contrary notwithstanding, no
LC
Issuer, Swingline Lender or Lender shall be obligated to extend credit to
the
Borrower in violation of any applicable statute or regulation.
9.3 Headings.
Section headings in this Agreement are for convenience of reference only
and shall not govern the interpretation of any of the provisions
hereof.
9.4 Entire
Agreement.
This
Agreement embodies the entire agreement and understanding among the Borrower,
the Administrative Agent, the LC Issuers, the Swingline Lender and the Lenders
with respect to the subject matter hereof and supersedes all prior agreements
and understandings among the Borrower, the Administrative Agent, the LC Issuers,
the Swingline Lender and the Lenders relating to the subject matter hereof,
except as specifically contemplated hereby. The Borrower acknowledges that
no
oral agreement or oral commitment to lend money, extend credit or forbear
from
enforcing repayment of a debt is enforceable under the law of the State of
Washington.
9.5 Several
Obligations; Benefits of this Agreement.
The
respective obligations of the Lenders hereunder are several and not joint,
and
no Lender shall be the partner or agent of any other (except to the extent
to
which the Administrative Agent is authorized to act as such). The failure
of any
Lender to perform any of its obligations hereunder shall not relieve any
other
Lender from any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than
the
parties to this Agreement and their respective successors and
assigns;
provided
that the
parties hereto expressly agree that the Arrangers shall enjoy the provisions
of
Sections 9.6, 9.9 and 10.11 to the extent specifically set forth therein
and
shall have the right to enforce such provisions on their own behalf and in
their
own names to the same extent as if they were parties to this
Agreement.
9.6 Expenses;
Indemnification.
(i) The
Borrower shall reimburse the Administrative Agent and each Arranger for their
reasonable costs, internal charges and reasonable out-of-pocket expenses
(including, in the case of the Administrative Agent, reasonable fees, time
charges and expenses of attorneys for the Administrative Agent, including
attorneys that are employees of the Administrative Agent) paid or incurred
by
the Administrative Agent or either Arranger in connection with the preparation,
negotiation, execution, delivery, syndication, distribution (including via
the
Internet), amendment and modification of the Loan Documents and the review
and
administration of the Loan Documents in connection with any request made
by the
Borrower;
provided
that the
Borrower shall only be required to reimburse the Administrative Agent for
the
fees and expenses of one law firm, subject to the limitations agreed to by
the
Borrower and the Administrative Agent. The Borrower also agrees to reimburse
the
Administrative Agent, the LC Issuers, the Swingline Lender, the Arrangers
and
the Lenders for their reasonable costs, internal charges and reasonable
out-of-pocket expenses (including reasonable fees, time charges and expenses
of
attorneys for the Administrative Agent, the LC Issuers, the Swingline Lender,
the Arrangers and the Lenders, including attorneys that are employees of
the
Administrative Agent, the LC Issuers, the Swingline Lender, the Arrangers
or the
Lenders) paid or incurred by the Administrative Agent, the Swingline Lender,
any
LC Issuer, either Arranger or any Lender in connection with the collection
and
enforcement of the Loan Documents during the existence of any Default, including
in connection with any proceeding described in Section 7.6 or
7.7.
(ii) The
Borrower hereby further agrees to indemnify the Administrative Agent, each
LC
Issuer, the Swingline Lender, each Arranger, each Lender, their respective
Affiliates, and each of their directors, officers, agents and employees against
all losses, claims, damages, penalties, judgments, liabilities and expenses
(including all expenses of litigation or preparation therefor, whether or
not
the Administrative Agent, the Swingline Lender, any LC Issuer, either Arranger,
any Lender or any such Affiliate is a party thereto) which any of them may
pay
or incur arising out of or relating to this Agreement, the other Loan Documents,
the transactions contemplated hereby or thereby or the direct or indirect
application or proposed application of the proceeds of any Credit Extension
hereunder, except to the extent that any such losses, claims, damages,
penalties, judgments, liabilities or expenses are determined in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the party seeking
indemnification. The obligations of the Borrower under this Section 9.6
shall survive the termination of this Agreement.
9.7 Numbers
of Documents.
All
statements, notices, closing documents, and requests hereunder shall be
furnished to the Administrative Agent with sufficient counterparts so that
the
Administrative Agent may furnish one to each of the Lenders.
9.8 Severability
of Provisions.
Any
provision of this Agreement or any Note that is held to be inoperative,
unenforceable or invalid in any jurisdiction shall, as to that jurisdiction,
be
inoperative, unenforceable or invalid without affecting the remaining provisions
in that jurisdiction or the operation, enforceability or validity of that
provision in any other jurisdiction, and to this end the provisions of all
Loan
Documents are declared to be severable.
9.9 Nonliability
of Lenders.
The
relationship between the Borrower on the one hand and the Lenders, the Swingline
Lender, the LC Issuers, the Arrangers and the Administrative Agent on the
other
hand shall be solely that of borrower and lender. Neither the Administrative
Agent nor any LC Issuer, Lender, Swingline Lender or Arranger shall have
any
fiduciary responsibilities to the Borrower. Neither the Administrative Agent
nor
any LC Issuer, Lender, Swingline Lender or Arranger undertakes any
responsibility to the Borrower to review or inform the Borrower of any matter
in
connection with any phase of the Borrower’s business or operations. The Borrower
agrees that neither the Administrative Agent nor any LC Issuer, Lender,
Swingline Lender or Arranger shall have any liability to the Borrower (whether
sounding in tort, contract or otherwise) for losses suffered by the Borrower
in
connection with, arising out of, or in any way related to, the transactions
contemplated and the relationship established by the Loan Documents, or any
act,
omission or event occurring in connection therewith, unless it is determined
in
a final, non-appealable judgment by a court of competent jurisdiction that
such
losses resulted from the gross negligence or willful misconduct of the party
from which recovery is sought. Neither the Administrative Agent nor any LC
Issuer, Lender, Swingline Lender or Arranger shall have any liability with
respect to, and the Borrower hereby waives, releases and agrees not to xxx
for,
any special, indirect or consequential damages suffered by the Borrower in
connection with, arising out of, or in any way related to the Loan Documents
or
the transactions contemplated thereby.
9.10 Confidentiality.
Each of
the Administrative Agent, the Lenders, the Swingline Lender and the LC Issuers
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (i) to its Affiliates and to its
and its Affiliates’ respective partners, directors, officers, employees, agents,
advisors and other representatives (it being understood that the Persons
to whom
such disclosure is made will be informed of the confidential nature of the
Information and instructed to keep the Information confidential), (ii) to
the extent requested by any regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (iii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process,
(iv) to any other party hereto, (v) in connection with the exercise of
any remedies hereunder or under any other Loan Document, any action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (vi) subject to an agreement
containing provisions substantially the same as those of this Section, to
(a) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or
(b) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations,
(vii) with the consent of the Borrower or (viii) to the extent such
Information (a) becomes publicly available other than as a result of a
breach of this Section or (b) becomes available to the Administrative
Agent, any Lender, the Swingline Lender, any LC Issuer or any of their
respective Affiliates on a nonconfidential basis from a source other than
the
Borrower.
For
purposes of this Section, “Information”
means
all information received from the Borrower or any Subsidiary relating to
the
Borrower or any Subsidiary or any of their respective businesses, other than
any
such information that is available to the Administrative Agent, the Swingline
Lender, any Lender or any LC Issuer on a nonconfidential basis before disclosure
by the Borrower or any Subsidiary;
provided
that, in
the case of information received from the Borrower or any Subsidiary after
the
date hereof, such information either is financial information or is clearly
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so
if such Person exercises the same degree of care to maintain the confidentiality
of the Information as a Person acting in the capacity of such Person in
connection with this Agreement (i.e.,
as
administrative agent, a lender, a letter of credit issuer or as described
in
clause (i) above) would customarily accord to its own confidential
information.
9.11 Non-Reliance.
Each
Lender hereby represents that it is not relying on or looking to any margin
stock (as defined in Regulation U) for the repayment of the Credit Extensions
provided for herein.
9.12 Disclosure.
The
Borrower and each Lender hereby (i) acknowledge and agree that JPMorgan
and/or its Affiliates from time to time may hold investments in, make other
loans to or have other relationships with the Borrower and its Affiliates,
and
(ii) waive any liability of JPMorgan and/or its Affiliates to the Borrower
or any Lender, respectively, arising out of or resulting from such investments,
loans or relationships, other than liabilities arising out of the gross
negligence or willful misconduct of JPMorgan and/or its Affiliates.
9.13 Counterparts.
This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart.
9.14 Acknowledgments.
In
connection with all aspects of each transaction contemplated hereby, the
Borrower acknowledges and agrees and
acknowledges its Affiliates’ understanding, that: (i) the credit facilities
provided for hereunder and any related arranging or other services in connection
therewith (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document) are an arm’s-length
commercial transaction between the Borrower and its Affiliates, on the one
hand,
and the Administrative Agent and the Arrangers,
on the
other hand, and the Borrower is capable of evaluating and understanding and
understands and accepts the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents (including any amendment,
waiver or other modification hereof or thereof); (ii) in connection with
the
process leading to such transaction, the Administrative Agent and each of
the
Arrangers is and has been acting solely as a principal and is not the financial
advisor, agent or fiduciary, for the Borrower or any of its Affiliates,
stockholders, creditors or employees or any other Person; (iii) neither the
Administrative Agent nor either Arranger has assumed or will assume an advisory,
agency or fiduciary responsibility in favor of the Borrower with respect
to any
of the transactions contemplated hereby or the process leading thereto,
including with respect to any amendment, waiver or other modification hereof
or
of any other Loan Document (irrespective of whether the Administrative Agent
or
either Arranger has advised or is currently advising the Borrower or any
of its
Affiliates on other matters) and neither the Administrative Agent nor either
Arranger has any obligation to the Borrower or any of its Affiliates with
respect to the transactions contemplated hereby except those obligations
expressly set forth herein and in the other Loan Documents; (iv) the
Administrative Agent and the Arrangers and their respective Affiliates may
be
engaged in a broad range of transactions that involve interests that differ
from
those of the Borrower and its Affiliates, and neither the Administrative
Agent
nor either Arranger has any obligation to disclose any of such interests
by
virtue of any advisory, agency or fiduciary relationship; and (iv) the
Administrative Agent and the Arrangers have not provided and will not provide
any legal, accounting, regulatory or tax advice with respect to any of the
transactions contemplated hereby (including any amendment, waiver or other
modification hereof or of any other Loan Document) and the Borrower has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate. The Borrower hereby waives and releases, to the
fullest extent permitted by law, any claims that it may have against the
Administrative Agent and the Arrangers with respect to any breach or alleged
breach of agency or fiduciary duty.
9.15 Patriot
Act.
Each
Lender hereby notifies the Borrower that pursuant to the requirements of
the USA
PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the “Patriot
Act”),
it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance
with the Patriot Act.
ARTICLE
10
THE
ADMINISTRATIVE AGENT
10.1 Appointment;
Nature of Relationship.
JPMorgan is hereby appointed by each of the Lenders as its contractual
representative (herein referred to as the “Administrative
Agent”)
hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Administrative Agent to act as the contractual
representative of such Lender with the rights and duties expressly set forth
herein and in the other Loan Documents. The Administrative Agent agrees to
act
as such contractual representative upon the express conditions contained
in this
Article 10. Notwithstanding the use of the defined term “Administrative
Agent,” it is expressly understood and agreed that the Administrative Agent
shall not have any fiduciary responsibilities to any Lender by reason of
this
Agreement or any other Loan Document and that the Administrative Agent is
merely
acting as the contractual representative of the Lenders with only those duties
as are expressly set forth in this Agreement and the other Loan Documents.
In
its capacity as the Lenders’ contractual representative, the Administrative
Agent (i) does not hereby assume any fiduciary duties to any of the
Lenders, (ii) is a “representative” of the Lenders within the meaning of
the term “secured party” as defined in the New York Uniform Commercial Code and
(iii) is acting as an independent contractor, the rights and duties of
which are limited to those expressly set forth in this Agreement and the
other
Loan Documents. Each of the Lenders hereby agrees to assert no claim against
the
Administrative Agent on any agency theory or any other theory of liability
for
breach of fiduciary duty, all of which claims each Lender hereby
waives.
10.2 Powers.
The
Administrative Agent shall have and may exercise such powers under the Loan
Documents as are specifically delegated to the Administrative Agent by the
terms
of each thereof, together with such powers as are reasonably incidental thereto.
The Administrative Agent shall have no implied duties to the Lenders, or
any
obligation to the Lenders to take any action thereunder except any action
specifically provided by the Loan Documents to be taken by the Administrative
Agent.
10.3 General
Immunity.
Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable to the Borrower or any Lender for any action taken or omitted
to
be taken by it or them hereunder or under any other Loan Document or in
connection herewith or therewith except to the extent such action or inaction
is
determined in a final non-appealable judgment by a court of competent
jurisdiction to have arisen from the gross negligence or willful misconduct
of
such Person.
10.4 No
Responsibility for Loans, Recitals, etc.
Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for, or have any duty to ascertain, inquire into or
verify,
(i) any statement, warranty or representation made in connection with any
Loan Document or any borrowing hereunder; (ii) the performance or
observance of any of the covenants or agreements of any obligor under any
Loan
Document, including any agreement by an obligor to furnish information directly
to each Lender; (iii) the satisfaction of any condition specified in
Article 4, except receipt of items required to be delivered solely to the
Administrative Agent; (iv) the existence or possible existence of any
Default or Unmatured Default; (v) the validity, enforceability,
effectiveness, sufficiency or genuineness of any Loan Document or any other
instrument or writing furnished in connection therewith; or (vi) the
financial condition of the Borrower or any guarantor of any of the Obligations
or of any of the Borrower’s or any such guarantor’s respective Subsidiaries. The
Administrative Agent shall have no duty to disclose to the Lenders information
that is not required to be furnished by the Borrower to the Administrative
Agent
at such time, but is voluntarily furnished by the Borrower to the Administrative
Agent (either in its capacity as Administrative Agent or in its individual
capacity).
10.5 Action
on Instructions of Lenders.
The
Administrative Agent shall in all cases be fully protected in acting, or
in
refraining from acting, hereunder and under any other Loan Document in
accordance with written instructions signed by the Required Lenders, and
such
instructions and any action taken or failure to act pursuant thereto shall
be
binding on all of the Lenders. The Lenders hereby acknowledge that the
Administrative Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this Agreement
or any
other Loan Document unless it shall be requested in writing to do so by the
Required Lenders. The Administrative Agent shall be fully justified in failing
or refusing to take any action hereunder and under any other Loan Document
unless it shall first be indemnified to its satisfaction by the Lenders
pro
rata
against
any and all liability, cost and expense that it may incur by reason of taking
or
continuing to take any such action.
10.6 Employment
of Agents and Counsel.
The
Administrative Agent may execute any of its duties as Administrative Agent
hereunder and under any other Loan Document by or through employees, agents,
and
attorneys-in-fact and shall not be answerable to the Lenders, except as to
money
or securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Administrative Agent shall be entitled to advice of
counsel
concerning the contractual arrangement between the Administrative Agent and
the
Lenders and all matters pertaining to the Administrative Agent’s duties
hereunder and under any other Loan Document.
10.7 Reliance
on Documents; Counsel.
The
Administrative Agent shall be entitled to rely upon any Note, notice, consent,
certificate, affidavit, letter, telegram, statement, paper, electronic message
or document believed by it to be genuine and correct and to have been signed
or
sent by the proper person or persons, and, in respect to legal matters, upon
the
opinion of counsel selected by the Administrative Agent, which counsel may
be
employees of the Administrative Agent.
10.8 Administrative
Agent’s Reimbursement and Indemnification.
The
Lenders agree to reimburse and indemnify the Administrative Agent ratably
in
proportion to their respective Commitments (or, if the Commitments have been
terminated, in proportion to their Commitments immediately prior to such
termination), to the extent not reimbursed or indemnified by the Borrower,
(i) for any amounts for which the Administrative Agent is entitled to
reimbursement by the Borrower under the Loan Documents, (ii) for any other
expenses incurred by the Administrative Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents (including for any expenses incurred by
the
Administrative Agent in connection with any dispute between the Administrative
Agent and any Lender or between two or more of the Lenders) and (iii) for
any liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever
which
may be imposed on, incurred by or asserted against the Administrative Agent
in
any way relating to or arising out of the Loan Documents or any other document
delivered in connection therewith or the transactions contemplated thereby
(including for any such amounts incurred by or asserted against the
Administrative Agent in connection with any dispute between the Administrative
Agent and any Lender or between two or more of the Lenders), or the enforcement
of any of the terms of the Loan Documents or of any such other
documents;
provided
that
(a) no Lender shall be liable for any of the foregoing to the extent any of
the foregoing is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the Administrative Agent and (b) any indemnification required
pursuant to Section 3.5(vii) shall, notwithstanding the provisions of this
Section 10.8, be paid by the relevant Lender in accordance with the
provisions thereof. The obligations of the Lenders under this Section 10.8
shall survive payment of the Obligations and termination of this
Agreement.
10.9 Notice
of Default.
The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Unmatured Default hereunder unless the
Administrative Agent has received written notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Unmatured Default
and
stating that such notice is a “notice of default.” In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall
give
prompt notice thereof to the Lenders.
10.10 Rights
as Lender.
In the
event the Administrative Agent is a Lender, the Administrative Agent shall
have
the same rights and powers hereunder and under any other Loan Document with
respect to its Commitment and its Loans as any other Lender and may exercise
the
same as though it were not the Administrative Agent, and the term “Lender” or
“Lenders” shall, at any time when the Administrative Agent is a Lender, unless
the context otherwise indicates, include the Administrative Agent in its
individual capacity. The Administrative Agent and its Affiliates may accept
deposits from, lend money to, and generally engage in any kind of trust,
debt,
equity or other transaction, in addition to those contemplated by this Agreement
or any other Loan Document, with the Borrower or any Subsidiary in which
the
Borrower or such Subsidiary is not restricted hereby from engaging with any
other Person. The Administrative Agent, in its individual capacity, is not
obligated to remain a Lender.
10.11 Lender
Credit Decision.
Each
Lender acknowledges that it has, independently and without reliance upon
the
Administrative Agent, either Arranger or any other Lender, and based on the
financial statements prepared by the Borrower and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each
Lender
also acknowledges that it will, independently and without reliance upon the
Administrative Agent, either Arranger or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue
to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
10.12 Successor
Administrative Agent.
The
Administrative Agent may resign at any time by giving written notice thereof
to
the Lenders and the Borrower, such resignation to be effective upon the
appointment of a successor Administrative Agent or, if no successor
Administrative Agent has been appointed, 45 days after the retiring
Administrative Agent gives notice of its intention to resign. The Administrative
Agent may be removed at any time with or without cause by written notice
received by the Administrative Agent from the Required Lenders, such removal
to
be effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders with the consent of the Borrower
(so long as no Default or Unmatured Default exists), which consent shall
not be
unreasonably withheld or delayed, shall have the right to appoint, on behalf
of
the Borrower and the Lenders, a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders
within
thirty days after the resigning Administrative Agent’s giving notice of its
intention to resign, then the resigning Administrative Agent may appoint,
on
behalf of the Borrower and the Lenders, a successor Administrative Agent.
Notwithstanding the previous sentence, the Administrative Agent may at any
time,
without the consent of the Borrower or any Lender, appoint any of its Affiliates
which is a commercial bank as a successor Administrative Agent hereunder.
If the
Administrative Agent has resigned or been removed and no successor
Administrative Agent has been appointed, the Lenders may perform all the
duties
of the Administrative Agent hereunder, and the Borrower shall make all payments
in respect of the Obligations to the applicable Lender and for all other
purposes shall deal directly with the Lenders. No successor Administrative
Agent
shall be deemed to be appointed hereunder until such successor Administrative
Agent has accepted the appointment. Any such successor Administrative Agent
shall be a commercial bank having capital and retained earnings of at least
$100,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the resigning or removed Administrative Agent. Upon
the
effectiveness of the resignation or removal of the Administrative Agent,
the
resigning or removed Administrative Agent shall be discharged from its duties
and obligations hereunder and under the Loan Documents. After the effectiveness
of the resignation or removal of an Administrative Agent, the provisions
of this
Article 10 shall continue in effect for the benefit of such Administrative
Agent in respect of any actions taken or omitted to be taken by it while
it was
acting as the Administrative Agent hereunder and under the other Loan Documents.
In the event that there is a successor to the Administrative Agent by merger,
or
the Administrative Agent assigns its duties and obligations to an Affiliate
pursuant to this Section 10.12, then the term “Reference Rate” as used in
this Agreement shall mean the reference rate, prime rate, corporate base
rate or
other analogous rate of the new Administrative Agent.
10.13 Administrative
Agent’s Fee.
The
Borrower agrees to pay to the Administrative Agent, for its own account,
(i) an
annual administrative agent’s fee in the amount of $12,500, payable on the
Closing Date and on each anniversary thereof, and (ii) such other fees as
may be
agreed to by the Borrower and the Administrative Agent from time to
time.
10.14 Delegation
to Affiliates.
The
Borrower and the Lenders agree that the Administrative Agent may delegate
any of
its duties under this Agreement to any of its Affiliates. Any such Affiliate
(and such Affiliate’s directors, officers, agents and employees) which performs
duties in connection with this Agreement shall be entitled to the same benefits
of the indemnification, waiver and other protective provisions to which the
Administrative Agent is entitled under Articles 9 and 10.
10.15 Other
Agents.
No
Lender or Affiliate thereof identified on the facing page of this Agreement
or
otherwise herein, or in any amendment hereof or other document related hereto,
as being the “Syndication Agent” or a “Co-Documentation Agent” shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
in such capacity. Each Lender acknowledges that it has not relied, and will
not
rely, on any Person so identified in deciding to enter into this Agreement
or in
taking or refraining from taking any action hereunder or pursuant
hereto.
ARTICLE
11
SETOFF;
PAYMENTS
11.1 Setoff.
In
addition to, and without limitation of, any rights of the Lenders under
applicable law, if the Required Lenders determine that the Borrower is
insolvent, however evidenced, or any Default occurs and is continuing, any
and
all deposits (including all account balances, whether provisional or final
and
whether or not collected or available) and any other indebtedness at any
time
held or owing by any Lender or any Affiliate of any Lender to or for the
credit
or account of the Borrower, may be offset and applied toward the payment
of the
Obligations owing to such Lender, whether or not the Obligations, or any
part
thereof, shall then be due.
11.2 Ratable
Payments.
If any
Lender, whether by setoff or otherwise, has payment made to it upon its
Outstanding Credit Exposure (other than payments received pursuant to
Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than that received by
any other Lender, such Lender agrees, promptly upon demand, to purchase a
portion of the Aggregate Outstanding Credit Exposure held by the other Lenders
so that after such purchase each Lender will hold its Pro Rata Share of the
Aggregate Outstanding Credit Exposure. If any Lender, whether in connection
with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for the Obligations owed thereto or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand,
to
take such action necessary such that all Lenders share in the benefits of
such
collateral ratably in proportion to their respective Pro Rata Share of the
Aggregate Outstanding Credit Exposure. In case any such payment is disturbed
by
legal process, or otherwise, appropriate further adjustments shall be
made.
ARTICLE
12
BENEFIT
OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors
and Assigns.
The
terms and provisions of the Loan Documents shall be binding upon and inure
to
the benefit of the Borrower and the Lenders and their respective successors
and
assigns, except that (i) the Borrower shall not have the right to assign
its rights or obligations under the Loan Documents and (ii) any assignment
by any Lender of its rights and obligations under the Loan Documents must
be
made in compliance with Section 12.3. The parties to this Agreement
acknowledge that clause (ii) of this Section 12.1 relates only to
absolute assignments and does not prohibit assignments creating security
interests, including any pledge or assignment by any Lender of all or any
portion of its rights under this Agreement and any Note to a Federal Reserve
Bank;
provided that
no
such pledge or assignment creating a security interest shall release the
transferor Lender from its obligations hereunder unless and until the parties
thereto have complied with the provisions of Section 12.3. The
Administrative Agent may treat the Person which made any Loan or which holds
any
Note as the owner thereof for all purposes hereof unless and until such Person
complies with Section 12.3;
provided
that the
Administrative Agent may in its discretion (but shall not be required to)
follow
instructions from the Person which made any Loan or which holds any Note
to
direct payments relating to such Loan or Note to another Person. Any assignee
of
the rights to any Loan or any Note agrees by acceptance of such assignment
to be
bound by all the terms and provisions of the Loan Documents. Any request,
authority or consent of any Person that, at the time of making such request
or
giving such authority or consent, is the owner of the rights to any Loan
(whether or not a Note has been issued in evidence thereof) shall be conclusive
and binding on any subsequent holder or assignee of the rights to such
Loan.
12.2 Participations.
12.2.1 Permitted
Participants; Effect.
Any
Lender may at any time sell to one or more banks or other entities
(“Participants”)
participating interests in any Outstanding Credit Exposure of such Lender,
any
Note held by such Lender, any Commitment of such Lender or any other interest
of
such Lender under the Loan Documents;
provided
that
such Lender shall promptly provide written notice of such sale to the Borrower.
In the event of any such sale by a Lender of participating interests to a
Participant, such Lender’s obligations under the Loan Documents shall remain
unchanged, such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, such Lender shall remain
the
owner of its Outstanding Credit Exposure and the holder of any Note issued
to it
in evidence thereof for all purposes under the Loan Documents, all amounts
payable by the Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such
Lender
in connection with such Lender’s rights and obligations under the Loan
Documents.
12.2.2 Voting
Rights.
Each
Lender shall retain the sole right to approve, without the consent of any
Participant, any amendment, modification or waiver of any provision of this
Agreement other than any amendment, modification or waiver with respect to
any
Credit Extension or Commitment in which such Participant has an interest
which
(i) forgives principal, interest, fees or any Reimbursement Obligation,
(ii) reduces the interest rate or fees payable with respect to any such
Credit Extension or Commitment, (iii) extends the Facility Termination
Date, (iv) postpones any date fixed for any regularly-scheduled payment of
principal of, or interest or fees on, any such Credit Extension or Commitment,
(v) releases any guarantor of any such Credit Extension or
(vi) releases all or substantially all of the collateral, if any, securing
any such Credit Extension.
12.2.3 Benefit
of Setoff.
The
Borrower agrees that each Participant shall be deemed to have the right of
setoff provided in Section 11.1 in respect of its participating interest in
amounts owing under this Agreement to the same extent as if the amount of
its
participating interest were owing directly to it as a Lender under this
Agreement;
provided
that
each Lender shall retain the right of setoff provided in Section 11.1 with
respect to the amount of participating interests sold to each Participant.
The
Lenders agree to share with each Participant, and each Participant, by
exercising the right of setoff provided in Section 11.1, agrees to share
with each Lender, any amount received pursuant to the exercise of its right
of
setoff, such amounts to be shared in accordance with Section 11.2 as if
each Participant were a Lender. The Borrower further agrees that each
Participant shall be entitled to the benefits of Sections 3.1, 3.2, 3.4 and
3.5
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to Section 12.3;
provided
that
(i) a Participant shall not be entitled to receive any greater payment
under Section 3.1, 3.2, 3.4 or 3.5 than the Lender which sold the
participating interest to such Participant would have received had it retained
such interest for its own account, unless the sale of such interest to such
Participant is made with the prior written consent of the Borrower, and
(ii) any Participant not incorporated under the laws of the United States
of America or any State thereof agrees to comply with the provisions of
Section 3.5 to the same extent as if it were a Lender.
12.3 Assignments.
12.3.1 Permitted
Assignments.
Any
Lender may at any time assign to one or more banks or other entities
(“Purchasers”)
all or
any part of its rights and obligations under the Loan Documents (a “Lender
Assignment”).
Such
Lender Assignment shall be substantially in the form of Exhibit E or in such
other form as may be agreed to by the parties thereto. The consent of the
Borrower and the Administrative Agent shall be required prior to an assignment
becoming effective with respect to a Purchaser which is not a Lender or an
Affiliate thereof;
provided
that if
a Default has occurred and is continuing, the consent of the Borrower shall
not
be required. Such consents shall not be unreasonably withheld or delayed.
Each
such assignment with respect to a Purchaser which is not a Lender or an
Affiliate thereof shall (unless each of the Borrower and the Administrative
Agent otherwise consents) be in an amount not less than the lesser of
(i) $5,000,000 or (ii) the remaining amount of the assigning Lender’s
Commitment (calculated as at the date of such assignment) or outstanding
Revolving Loans (if the applicable Commitment has been terminated).
12.3.2 Register.
The
Administrative Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at one of its offices in North Carolina a copy of
each
Lender Assignment delivered to it and a register for the recording of the
names
and addresses of the Lenders and their Commitments and Outstanding Credit
Exposures pursuant to the terms hereof from time to time (the “Register”).
The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder
for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender,
at
any reasonable time and from time to time upon reasonable prior
notice.
12.3.3 Effect;
Effective Date.
Upon
(i) delivery to the Administrative Agent of an assignment, together with
any consent(s) required by Section 12.3.1, and (ii) payment of a
$3,500 fee to the Administrative Agent by the Purchaser or transferor Lender
for
processing such assignment (unless such fee is waived by the Administrative
Agent), such assignment shall become effective on the effective date specified
in such assignment. The assignment shall contain a representation by the
Purchaser to the effect that none of the consideration used to make the purchase
of the Commitment and Outstanding Credit Exposure under the applicable
assignment agreement constitutes “plan assets” as defined under ERISA and that
the rights and interests of the Purchaser in and under the Loan Documents
will
not be “plan assets” under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to this
Agreement and any other Loan Document executed by or on behalf of the Lenders
and shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto, and
no
further consent or action by the Borrower, the Lenders or the Administrative
Agent shall be required to release the transferor Lender with respect to
the
percentage of the Aggregate Commitment and Revolving Loans assigned to such
Purchaser. Upon the consummation of any assignment to a Purchaser pursuant
to
this Section 12.3.3, the transferor Lender, the Administrative Agent and
the Borrower shall, if the transferor Lender or the Purchaser desires that
its
Revolving Loans be evidenced by a Revolving Note, make appropriate arrangements
so that a new Revolving Note or, as appropriate, a replacement Revolving
Note is
issued to such transferor Lender and a new Revolving Note or, as appropriate,
a
replacement Revolving Note is issued to such Purchaser, in each case in
principal amounts reflecting their respective Commitments, as adjusted pursuant
to such assignment.
12.4 Tax
Treatment.
If any
interest in any Loan Document is transferred to any Purchaser or Participant
which is organized under the laws of any jurisdiction other than the United
States or any State thereof, the transferor Lender shall cause such Purchaser
or
Participant, concurrently with the effectiveness of such transfer, to comply
with the provisions of Section 3.5(iv).
ARTICLE
13
NOTICES
13.1 Notices.
Except
as otherwise permitted by Section 2.11 with respect to borrowing notices,
all notices, requests and other communications to any party hereunder shall
be
in writing (including electronic transmission, facsimile transmission or
similar
writing) and shall be given to such party: (x) in the case of the Borrower
or the Administrative Agent, at its address or facsimile number set forth
on the
signature pages hereof, (y) in the case of any Lender, at its address or
facsimile number set forth below its signature hereto (including, as applicable,
on a Lender Assignment) or (z) in the case of any party, at such other
address or facsimile number as such party may hereafter specify for the purpose
by notice to the Administrative Agent and the Borrower in accordance with
the
provisions of this Section 13.1. Each such notice, request or other
communication shall be effective (i) if given by facsimile transmission,
when transmitted to the facsimile number specified in this Section and
confirmation of receipt is received, (ii) if given by mail, four Business
Days after such communication is deposited in the mails with first-class
postage
prepaid, addressed as aforesaid, or (iii) if given by any other means, when
delivered (or, in the case of electronic transmission, received) at the address
specified in this Section;
provided
that
notices to the Administrative Agent under Article 2 shall not be effective
until received.
13.2 Change
of Address.
The
Borrower, the Administrative Agent and any Lender may each change the address
for service of notice upon it by a notice in writing to the other parties
hereto.
ARTICLE
14
CHOICE
OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
14.1 CHOICE
OF LAW.
THIS
AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED
IN
ACCORDANCE WITH, THE INTERNAL LAWS (BUT WITHOUT REGARD TO THE CONFLICT-OF-LAWS
PROVISIONS) OF THE STATE OF NEW YORK,
BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
14.2 CONSENT
TO JURISDICTION.
THE
BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY
UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK, NEW YORK
IN
ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR
ANY NOTE, AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT
OF ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY
SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS
TO
THE VENUE OF ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN SUCH A COURT
OR THAT
SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT
OF THE
ADMINISTRATIVE AGENT, THE SWINGLINE LENDER, ANY LC ISSUER OR ANY LENDER TO
BRING
PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
ANY
JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE ADMINISTRATIVE AGENT, THE
SWINGLINE LENDER, ANY LC ISSUER, ANY LENDER OR ANY AFFILIATE OF THE
ADMINISTRATIVE AGENT, THE SWINGLINE LENDER, ANY LC ISSUER OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF,
RELATED
TO, OR CONNECTED WITH THIS AGREEMENT OR ANY NOTE SHALL BE BROUGHT ONLY IN
A
COURT IN NEW YORK, NEW YORK.
14.3 WAIVER
OF JURY TRIAL.
THE
BORROWER, THE ADMINISTRATIVE AGENT, THE SWINGLINE LENDER, ANY LC ISSUER AND
EACH
LENDER HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH
THIS AGREEMENT, ANY NOTE, ANY OTHER LOAN DOCUMENT OR ANY RELATIONSHIP
ESTABLISHED HEREUNDER OR THEREUNDER.
[THE
REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY.]
IN
WITNESS WHEREOF, the Borrower, the Lenders, the Swingline Lender, the LC
Issuers
and the Administrative Agent have executed this Agreement as of the date
first
above written.
|
PUGET
SOUND ENERGY, INC.
|
|
By:
/s/Xxxxxx
X. Xxxxxx
|
|
Xxxxxx
X. Xxxxxx
|
|
Vice
President Finance &
Treasurer
|
|
Puget
Sound Energy, Inc.
X.X.
Xxx 00000 XXX-00X
Xxxxxxxx,
XX 00000-0000
Attention:
Assistant
Treasurer
Telephone:
000-000-0000
FAX:
000-000-0000
For
Courier Deliveries:
00000
XX 0xx
Xxxxxx XXX-00X
Xxxxxxxx,
XX 00000-0000
|
|
JPMORGAN
CHASE BANK,
Individually,
as Administrative Agent, Swingline Lender and as LC
Issuer
|
|
By:
/s/Xxxxxxx
X. XxXxxxx
|
|
Name:
Xxxxxxx
X. XxXxxxx
|
|
Title:
Executive Director
|
|
Primary
Operations Contact:
JPMorgan
Chase Bank
0000
Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx,
XX 00000
Attention:
Xxxxxxxx Xxxx
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
xxxxxxxxx.x.xxxx@xxxxxxxx.xxx
Alternate
Operations Contact:
JPMorgan
Chase Bank
0000
Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx,
XX 00000
Attention:
Xxxxx Xxxxxx
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
xxxxx.x.xxxxxx@xxxxxxxx.xxx
Credit
Contact:
JPMorgan
Chase Bank
000
Xxxx Xxx., 0xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxxxx X. XxXxxxx, Vice President
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
xxxxxxx.x.xxxxxxx@xxxxxxxx.xxx
|
|
UNION
BANK OF CALIFORNIA, N.A.
|
|
By:
/s/Xxxxxx
Xxxx
|
|
Name:
Xxxxxx Xxxx
|
|
Title:
Vice President
|
|
Operations
Contact:
Union
Bank of California, N.A.
CLSO,
Commercial Loan Operations
000
Xxxxxxx Xxxxxx, 0xx
Xxxxx
Xxxxxxxx
Xxxx, XX 00000
Attention:
Xxxxx Xxxxxx
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
xxxxx.xxxxxx@xxxx.xxx
Credit
Contact:
Union
Bank of California, N.A.
000
Xxxxx Xxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxxxxx, XX 00000
Attention:
Xxxxx Xxxxx, Senior Vice President
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
xxxxx.xxxxx@xxxx.xxx
|
|
WACHOVIA
BANK, NATIONAL ASSOCIATION
|
|
By:
/s/Xxxxxxxxx
X. Xxxxx
|
|
Name:
Xxxxxxxxx
X. Xxxxx
|
|
Title:
Managing Director
|
|
Operations
Contact:
Wachovia
Bank, National Association
000
X. Xxxxxxx Xx., XX-0
Xxxxxxxxx,
XX 00000-0000
Attention:
Syndication Agency Services
Telephone:
000-000-0000
FAX:
000-000-0000
Credit
Contact:
Wachovia
Bank, National Association
000
Xxxxx Xxxxxxx Xx., 0xx
Xxxxx
Xxxxxxxxx,
XX 00000
Attention:
Xxxx Xxxxx, Managing Director
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
xxxx.xxxxx@xxxxxxxx.xxx
|
|
CITIBANK,
N.A.
|
|
By:
/s/Xxxxx
Xxxxxxx
|
|
Name:
Xxxxx
Xxxxxxx
|
|
Title:
Vice President
|
|
Operations
Contact:
Citbank,
N.A.
0
Xxxxx Xxx, Xxxxx 000
Xxx
Xxxxxx, XX 00000
Attention:
Xxxxx Xxxxxxx
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
xxxxxxxx.x.xxxxxxx@xxxxxxxxx.xxx
Credit
Contact:
Citibank,
N.A.
000
Xxxxxxxxx Xxxxxx
21st
Floor - Global Power
Xxx
Xxxx, XX 00000
Attention:
Xxxx Xxxxx, Vice President
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
xxxx.x.xxxxx@xxxxxxxxx.xxx
|
|
KEYBANK
NATIONAL ASSOCIATION
|
|
By:
/s/Xxxxx
X. Xxxxx
|
|
Name:
Xxxxx
X. Xxxxx
|
|
Title:
Senior Vice President
|
|
Operations
Contact:
KeyBank
National Association
000
Xxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxx X. Hockey, Deal Administrator
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
xxxxxx_x_xxxxxx@Xxxxxxx.xxx
Credit
Contact:
KeyBank
National Association
000
000xx
Xxxxxx, XX
Xxxxxxxx,
XX 00000
Attention:
Xxxxx X. Xxxxx, Senior Vice President
Telephone:
000-000-0000
FAX:
000-000-0000
|
|
XXXXXX
BROTHERS BANK, FSB
|
|
By:
/s/Xxxxxx
X. Xxxxxx
|
|
Name:
Xxxxxx
X. Xxxxxx
|
|
Title:
Authorized Signatory
|
|
Operations
Contact:
Xxxxxx
Brothers Bank, FSB
000
0xx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxxx Xxxx
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
xxxxxxxxxxxxxxx@xxxxxx.xxx
Credit
Contact:
Xxxxxx
Brothers Bank, FSB
000
0xx
Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxxx Xxxxxx
Telephone:
000-000-0000
FAX:
000-000-0000
|
|
XXXXXX
XXXXXXX BANK
|
|
By:
/s/Xxxxxx
Xxxxxx
|
|
Name:
Xxxxxx
Xxxxxx
|
|
Title:
Authorized Signatory
|
|
Operations
Contact:
Xxxxxx
Xxxxxxx Bank
0000
Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxx Xxxxxxx
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
xxxxx.xxxxxxx@xxxxxxxxxxxxx.xxx
Credit
Contact:
Xxxxxx
Xxxxxxx Bank
0000
Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxx Dell’Aquila
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
xxxx.xxxx’Xxxxxx@xxxxxxxxxxxxx.xxx
|
|
UBS
LOAN FINANCE LLC
|
|
By:
/s/Xxxxxxx
X. Xxxxxx
|
|
Name:
Xxxxxxx
X Xxxxxx
|
|
Title:
Director, Banking Products Services, US
|
| By: /s/Xxxx X. Xxxxx |
| Name: Xxxx X. Xxxxx |
|
Title:
Associate Director, Banking Products Services, US
|
|
Operations
Contact:
UBS
Loan Finance LLC
000
Xxxxxxxxxx Xxxxxxxxx, 0xx
Xxxxx
Xxxxxxxx,
XX 00000
Attention:
Xxxxx Xxxxx
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
xxxxx.xxxxx@xxx.xxx
Credit
Contact:
UBS
Loan Finance LLC
000
Xxxxxxxxxx Xxxxxxxxx, 0xx
Xxxxx
Xxxxxxxx,
XX 00000
Attention:
Xxxxx Xxxxx
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
xxxxx.xxxxx@xxx.xxx
|
|
THE
BANK OF NEW YORK
|
|
By:
/s/Xxxxx
Xxxxxxxx
|
|
Name:
Xxxxx
Xxxxxxxx
|
|
Title:
Vice President
|
|
Operations
Contact:
The
Bank of New York
Xxx
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxx Xxxxxxxx
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
xxxxxxxxx@xxxxxxxx.xxx
Credit
Contact:
The
Bank of New York
Xxx
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxx X. Xxxxxxxx
Telephone:
000-000-0000
FAX:
000-000-0000
|
|
THE
BANK OF NOVA SCOTIA
|
|
By:
/s/Xxx
Xxxxxxx
|
|
Name:
Xxx Xxxxxxx
|
|
Title:
Managing Director
|
|
Operations
Contact:
The
Bank of Nova Scotia
000
Xxxx Xxxxxx 0xx
Xxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention:
Xxxxx Xxxxxxxx
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
Xxxxx_Xxxxxxxx@xxxxxxxxxxxxx.xxx
Credit
Contact:
The
Bank of Nova Scotia
Xxx
Xxxxxxx Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxxx Xxxxxxxxxx
Telephone:
000-000-0000
FAX:
000-000-0000
|
|
U.S.
BANK NATIONAL ASSOCIATION
|
|
By:
/s/Xxxxx
X. Xxxxxxx
|
|
Name:
Xxxxx
X. Xxxxxxx
|
|
Title:
Vice President
|
|
Operations
Contact:
U.S.
Bank National Association
0000
Xxxxx Xxxxxx, 00xx
Xxxxx, XX-XX-X00X
Xxxxxxx,
XX 00000
Attention:
Xxxx Xxxxxx
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
xxxx.xxxxxx@xxxxxx.xxx
Credit
Contact:
U.S.
Bank National Association
0000
Xxxxx Xxxxxx, 00xx
Xxxxx, XX-XX-X00X
Xxxxxxx,
XX 00000
Attention:
Kurban H. Merchant, Vice President
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
xxxxxxxxx@xxxxxx.xxx
|
|
XXXXX
FARGO BANK, N.A.
|
|
By:
/s/Xxxx
Xxxxxxxxxx
|
|
Name:
Xxxx
Xxxxxxxxxx
|
|
Title:
Vice President, Relationship Manager
|
|
Operations
Contact:
Xxxxx
Fargo Bank, N.A.
000
Xxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxxxxxxx, XX 00000
Attention:
Xxxxxx Xxxxxx
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
xxxxxxx@xxxxxxxxxx.xxx
Credit
Contact:
Xxxxx
Fargo Bank, N.A.
0000
XX Xxxxx Xxxxxx, 0xx
Xxxxx
Xxxxxxxx,
XX 00000
Attention:
Xxxx Xxxxxxxxxx
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
xxxxxxxx@xxxxxxxxxx.xxx
|
SCHEDULE
1
PRICING
SCHEDULE
|
S&P
RATING / XXXXX’X RATING
|
>A-/A3
|
BBB+/Baa1
|
BBB/Baa2
|
BBB-/Baa3
|
<BBB-/Baa3
|
|
Applicable
Eurodollar Margin
|
0.250%
|
0.350%
|
0.450%
|
0.525%
|
0.700%
|
|
Applicable
Commitment Fee Rate
|
0.060%
|
0.080%
|
0.100%
|
0.125%
|
0.175%
|
|
Applicable
Utilization Fee Rate
|
0.050%
|
0.050%
|
0.050%
|
0.100%
|
0.100%
|
|
Applicable
LC Fee Rate
|
0.250%
|
0.350%
|
0.450%
|
0.525%
|
0.700%
|
The
Applicable Eurodollar Margin, the Applicable Commitment Fee Rate, the Applicable
Utilization Fee Rate and the Applicable
LC Fee Rate
shall be
determined in accordance with the foregoing table based on the Borrower’s
then-current Xxxxx’x and S&P Ratings. The credit rating in effect on any
date for the purposes of this Schedule is that in effect at the close of
business on such date.
“Xxxxx'x
Rating”
means,
at any time, the rating issued by Xxxxx'x Investors Service, Inc. and then
in
effect with respect to the Borrower’s Issuer Rating.
“S&P
Rating”
means,
at any time, the rating issued by Standard and Poor's Rating Services, a
division of The McGraw Hill Companies, Inc., and then in effect with respect
to
the Borrower’s Corporate Credit Rating.
If
the
Borrower is split-rated and the ratings differential is one level, the better
rating will apply. If the Borrower is split-rated and the ratings differential
is two levels or more, the intermediate rating at the midpoint will apply.
If
there is no midpoint, the higher of the intermediate ratings will
apply.
SCHEDULE
2
COMMITMENTS
|
Lender
|
Commitment
|
|
JPMorgan
Chase Bank
|
$35,000,000
|
|
Xxxxxx
Brothers Bank, FSB
|
$35,000,000
|
|
Xxxxxx
Xxxxxxx Bank
|
$35,000,000
|
|
Wachovia
Bank, National Association
|
$30,000,000
|
|
Citibank,
N.A.
|
$30,000,000
|
|
KeyBank
National Association
|
$30,000,000
|
|
Union
Bank of California, N.A.
|
$30,000,000
|
|
UBS
Loan Finance LLC
|
$25,000,000
|
|
The
Bank of New York
|
$25,000,000
|
|
The
Bank of Nova Scotia
|
$25,000,000
|
|
U.S.
Bank National Association
|
$25,000,000
|
|
Xxxxx
Fargo Bank, N.A.
|
$25,000,000
|
|
Total
|
$350,000,000
|
SCHEDULE
5.10
FINANCIAL
STATEMENTS
The
financial statements included in the Borrower’s Annual Report on Form 10-K for
the year ended December 31, 2006, as filed with the Securities and Exchange
Commission.
SCHEDULE
5.13
SUBSIDIARIES
All
listed subsidiaries are 100% owned, directly or indirectly, by the
Borrower.
| 1. |
Puget
Western, Inc., a Washington corporation, is a real estate investment
and
development company. Address: 00000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxxxx 00000.
|
| 2. |
Hydro
Energy Development Corp., a Washington corporation, is the holding
company
for a small non-utility wholesale generator, Black Creek Hydro, Inc.
Black
Creek Hydro, Inc.’s only asset is a small hydroelectric power plant
licensed by the Federal Energy Regulatory Commission in the Pacific
Northwest. Address: 00000 XX 0xx
Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx
00000.
|
| 3. |
WNG
Cap I, Inc., a Washington corporation, markets surplus pipeline capacity
on behalf of the Borrower. Address: 00000 XX 0xx
Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxxxxxx
00000.
|
| 4. |
PSE
Funding, Inc., a Washington corporation, was formed for the purpose
of
purchasing accounts receivable, both billed and unbilled, of customers
of
the Borrower. Address: 00000 XX 0xx
Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxxxxxx
00000.
|
SCHEDULE
6.10
EXISTING
LIENS
|
Secured
Party
|
Description
of Lien
|
|
BLC
Corporation
|
All
property agreed to under Master Lease Agreement dated September
1,
1988
|
|
Cascade
A & E Supplies Co.
|
Xerox
Digital Plotter
|
|
Fleet
Business Credit
|
3830-36
Symmetrix and related equipment
|
|
IOS
Capital LLC
|
Equipment
under Master Lease Agreement
|
|
Vestas-American
Wind Technology, Inc.
|
Turbine
Equipment
|
SCHEDULE
6.15
EXISTING
INVESTMENTS
|
Investments
by Borrower (excluding investments in Subsidiaries)
|
||||
|
Non-Utility
Property
|
$
|
2,500,000
|
||
|
Company
Owned Life Insurance
|
54,500,000
|
|||
|
Miscellaneous
Notes Receivable
|
2,400,000
|
|||
|
Total
|
$
|
59,400,000
|
||
|
Investments
by Subsidiaries
|
||||
|
Puget
Western Inc.
|
||||
|
Miscellaneous
Notes Receivable
|
$
|
14,200,000
|
||
|
Investment
in Kinetic Ventures
|
2,000,000
|
|||
|
Other
Investments
|
44,000,000
|
|||
|
Total
|
$
|
60,200,000
|
||
|
Hydro
Energy Development Corp.
|
||||
|
Investment
in Black Creek Hydro
|
$
|
5,400,000
|
||
|
Total
Investments
|
$
|
125,000,000
|
||
EXHIBIT
A
REVOLVING
NOTE
U.S.$_________ _________,
200_
For
value
received, PUGET SOUND ENERGY, INC., a Washington corporation (the “Borrower”),
hereby promises to pay to the order of ______________________________ (the
“Lender”),
on or
before the Facility Termination Date (as defined in the Credit Agreement
referred to below), the principal amount of ______________________________
United States dollars (U.S.$__________) or, if less, the aggregate principal
amount of all Revolving Loans (as defined below) made by the Lender to the
Borrower pursuant to the Credit Agreement. Unless otherwise defined herein,
terms defined in the Credit Agreement, when used herein, have the respective
meanings assigned to them in the Credit Agreement.
The
Borrower promises to pay interest on the unpaid principal amount of each
Revolving Loan, from the date of such Revolving Loan until such principal
amount
is paid in full, at such interest rates and at such times as specified in
the
Credit Agreement.
Both
principal and interest are payable in lawful money of the United States of
America, in immediately available funds, to JPMorgan Chase Bank, N.A., a
national banking association, as administrative agent (the “Administrative
Agent”),
at
its office located at 0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000,
or
as otherwise directed by the Administrative Agent. Each Revolving Loan and
all
payments made on account of the principal thereof shall be recorded by the
Lender and, before any transfer hereof, endorsed on the schedule attached
hereto, which is part of this Revolving Note.
This
Revolving Note is one of the “Revolving Notes” referred to in, and is entitled
to the benefits of, the Credit Agreement dated as of March 29, 2007 (as it
may hereafter be amended, restated, supplemented or otherwise modified from
time
to time, the “Credit
Agreement”)
among
the Borrower, the Lender and the other financial institutions party thereto
and
JPMorgan Chase Bank, N.A., as Administrative Agent and as Swingline Lender
and
LC Issuer. The Credit Agreement, among other things, (a) provides for the
making of revolving loans (the “Revolving
Loans”)
by the
Lender to the Borrower from time to time in an aggregate amount not to exceed
the U.S.-dollar amount first set forth above, the indebtedness of the Borrower
resulting from each Revolving Loan being evidenced by this Revolving Note,
and
(b) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof before the maturity hereof upon the terms and conditions
specified therein.
To
the
extent permitted by law, the Borrower hereby waives presentment, demand,
protest
and notice of any kind. No failure to exercise, and no delay in exercising,
any
rights hereunder on the part of the holder hereof shall operate as a waiver
of
any such rights.
The
Borrower has caused this Revolving Note to be executed by its duly authorized
representative as of the date first written above.
PUGET
SOUND ENERGY, INC.
By:
_________________________
Name:
_______________________
Title:
________________________
|
SCHEDULE
TO REVOLVING NOTE
|
||||
|
|
||||
|
Amount
|
Amount
of
Principal
Paid
|
Unpaid
Principal
|
Notation
|
|
|
Date
|
of
Loan
|
or
Prepaid
|
Balance
|
Made
By
|
EXHIBIT
B
BORROWING
NOTICE
__________,
200_
JPMorgan
Chase Bank, N.A., as Administrative Agent
under
the
Credit Agreement
referred
to below
0000
Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx,
XX 00000
Attention:
Xxxxxxxx Xxxxx
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
xxxxxxxx.xxxxx.xxxxx@xxxxxxxx.xxx
Ladies
and Gentlemen:
The
undersigned, Puget Sound Energy, Inc., a Washington corporation, refers to
the
Credit Agreement dated as of March 29, 2007 (as it may hereafter be amended,
restated, supplemented or otherwise modified from time to time, the
“Credit
Agreement”)
among
the undersigned, the lenders referred to therein and JPMorgan Chase Bank,
N.A.,
a national banking association, as Administrative Agent and as Swingline
Lender
and LC Issuer. Terms defined in the Credit Agreement and not otherwise defined
herein have the same respective meanings when used herein. Pursuant to Section
[2.2.3][2.18.2] of the Credit Agreement, the undersigned hereby requests
a
[Revolving Loan][Swingline Loan] under the Credit Agreement and in that
connection sets forth below the information relating to such [Revolving
Loan][Swingline Loan] (the “Proposed
Loan”),
as
required by Section [2.2.3][2.18.2] of the Credit Agreement.
1.
The
date
of the Proposed Loan is __________, 200_.
2.
The
aggregate amount of the Proposed Loan is $_______________.
3.
The
Proposed Loan will be composed of [Floating Rate Loans] [LIBOR Market Index
Rate
Loans] [Eurodollar Loans].
[4.
The
initial Interest Period for the Eurodollar Loans composing the Proposed Loan
is
__________ month[s].]
The
undersigned hereby certifies that the following statements are true on the
date
hereof and will be true on the date of the Proposed Loan:
(a) no
event
has occurred and is continuing, or would result from the Proposed Loan or
from
the application of the proceeds thereof, that constitutes a Default or an
Unmatured Default; and
(b) the
representations and warranties contained in Article 5 of the Credit Agreement
are true and correct as of the date hereof and will be true and correct on
the
date of the Proposed Loan, except to the extent any such representation or
warranty is stated to relate solely to an earlier date, in which case such
representation or warranty was true and correct on and as of such earlier
date.
Very
truly yours,
PUGET
SOUND ENERGY, INC.
By:
_________________________
Name:
_______________________
Title:
________________________
EXHIBIT
C
CONVERSION/CONTINUATION
NOTICE
JPMorgan
Chase Bank, N.A., as Administrative Agent
under
the
Credit Agreement
referred
to below
0000
Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx,
XX 00000
Attention:
Xxxxxxxx Xxxxx
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
xxxxxxxx.xxxxx.xxxxx@xxxxxxxx.xxx
Ladies
and Gentlemen:
The
undersigned, Puget Sound Energy, Inc., a Washington corporation, refers to
the
Credit Agreement dated as of March 29, 2007 (as it may hereafter be amended,
restated, supplemented or otherwise modified from time to time, the
“Credit
Agreement”)
among
the undersigned, the lenders referred to therein and JPMorgan Chase Bank,
N.A.,
a national banking association, as Administrative Agent (in such capacity,
the
“Administrative
Agent”)
and as
Swingline Lender and LC Issuer. Terms defined in the Credit Agreement and
not
otherwise defined herein have the same respective meanings when used
herein.
The
undersigned hereby notifies the Administrative Agent pursuant to the Credit
Agreement that the undersigned elects to [convert Floating Rate Loans into
Eurodollar Loans] [convert Swingline Loans from Floating Rate Loans into
LIBOR
Market Index Rate Loans] [convert Swingline Loans from LIBOR Market Index
Rate
Loans into Floating Rate Loans] [continue all or a portion of an outstanding
Eurodollar Loan as a Eurodollar Loan] and in that connection sets forth below
the information relating to such [conversion] [continuation], as required
by the
Credit Agreement.
[Conversion:
1.
The
date
of such conversion is __________, 200_.
2.
Revolving Loans that are Floating
Rate Loans in the aggregate principal amount of $_______________ are to be
converted into Eurodollar Loans.
3. Swingline
Loans in the aggregate principal amount of $__________ are
to be
converted from [Floating Rate Loans][LIBOR Market Index Rate Loans] into
[Floating Rate Loans][LIBOR Market Index Rate Loans].
4.
The
Interest Period for the new Eurodollar Loan is ______ month[s].]
[Continuation:
1.
The
date
of such continuation is __________, 200_.
2.
The
Eurodollar Loan to be continued, in whole or in part, is in the aggregate
principal amount of $__________ and was made on __________, 200_.
3.
[The
entire] [$__________ in aggregate] principal amount of such Eurodollar Loan
is
to be continued as a Eurodollar Loan.
4.
The
Interest Period for the Eurodollar Loan to be continued is _____
month[s].]
No
Default or Unmatured Default has occurred and is continuing or would result
from
giving effect to the election to [convert] [continue] Loans made
hereby.
Very
truly yours,
PUGET
SOUND ENERGY, INC.
By:
_________________________
Name:
_______________________
Title:
________________________
EXHIBIT
D
COMPLIANCE
CERTIFICATE
The
undersigned ____________________, the ____________________ of Puget Sound
Energy, Inc., a Washington corporation (the “Borrower”),
refers to the Credit Agreement dated as of March 29, 2007 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit
Agreement”)
among
the Borrower, the financial institutions party thereto as lenders (the
“Lenders”),
and
JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders (the
“Administrative
Agent”).
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Credit Agreement. The undersigned
hereby certifies as to the accuracy of the information set forth below as
of
__________, 200_ (the “Compliance
Date”).
Debt
to Capitalization Ratio
(a) Consolidated
Indebtedness $_______
(b) Total
Capitalization $_______
Ratio
of a. to b.: _____
: 1.0
(Section
6.11 of the Credit Agreement requires that the Borrower not permit the principal
amount of Consolidated Indebtedness to exceed 65% of Total Capitalization
as of
the last day of any fiscal quarter.)
As
of the
Compliance Date, the undersigned represents and warrants to the Lenders and
the
Administrative Agent that: (a) no event has occurred and is continuing that
constitutes a Default or an Unmatured Default; and (b) the representations
and
warranties contained in Article 5 of the Credit Agreement are true and correct
as of the Compliance Date and as of the date hereof, except to the extent
any
such representation or warranty is stated to relate solely to an earlier
date,
in which case such representation or warranty was true and correct on and
as of
such earlier date.
The
undersigned has executed this Certificate as of __________, 200_.
Name:
_________________________
Title:
__________________________
EXHIBIT
E
ASSIGNMENT
AND ASSUMPTION
This
Assignment and Assumption is dated as of the Effective Date set forth below
and
is entered into by and between _________________________ (the “Assignor”)
and
__________ _______________ (the “Assignee”).
Capitalized terms used but not otherwise defined herein shall have the meanings
given to them in the Credit Agreement identified below (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit
Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard
Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed
to
and incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.
For
an
agreed consideration, the Assignor hereby irrevocably sells and assigns to
the
Assignee, and the Assignee hereby irrevocably purchases and assumes from
the
Assignor, subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below, (i) all of the Assignor’s rights and
obligations in its capacity as a Lender under the Credit Agreement and any
other
documents or instruments delivered pursuant thereto, to the extent related
to
the amount and percentage interest identified below of all of such outstanding
rights and obligations of the Assignor under its Commitment (including, without
limitation, any participations of the Assignor in Swingline Loans and Facility
LCs), and (ii) to the extent permitted to be assigned under applicable law,
all
claims, suits, causes of action and other rights of the Assignor (in its
capacity as a Lender) against any Person, whether known or unknown, arising
under or in connection with the Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed
thereby
or in any way based on or related to any of the foregoing, including, but
not
limited to, contract claims, tort claims, malpractice claims, statutory claims
and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations
sold
and assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as the “Assigned
Interest”).
Such
sale and assignment are without recourse to the Assignor and, except as
expressly provided in this Assignment and Assumption, without representation
or
warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________
[an
Affiliate of [identify
Lender]]1
3. Borrower: Puget
Sound Energy, Inc., a Washington corporation
4. Administrative
Agent: JPMorgan
Chase Bank, N.A. (“JPMorgan”),
in
such capacity
5. Credit
Agreement: Credit
Agreement dated as of March 29, 2007 among the Borrower, the financial
institutions party thereto as Lenders, and JPMorgan, as Administrative Agent
and
as Swingline Lender and LC Issuer
6.
Assigned
Interest:
|
Aggregate
Amount of Commitments of all Lenders
|
Amount
of Commitment Assigned2
|
Percentage
Assigned of Commitments3
|
CUSIP
Number
|
|
$
|
$
|
%
|
[7. Trade
Date: ______________]4 To
be
completed if the Assignor and the Assignee intend that the minimum assignment
amount is to be determined as of the Trade Date.
Effective
Date: __________, 200_ [To
be
inserted by the Administrative Agent and to be the effective date of recordation
of transfer in the Register.]
The
terms
set forth in this Assignment and Assumption are hereby agreed to:
[NAME
OF
ASSIGNOR]
By:
_________________________
Name:
_______________________
Title:
________________________
[NAME
OF
ASSIGNEE]
By:
_________________________
Name:
_______________________
Title:
________________________
Consented
to and accepted:
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent
By:
_________________________
Name:
_______________________
Title:
________________________
[Consented
to:]5
PUGET
SOUND ENERGY, INC.
By:
_________________________
Name:
_______________________
Title:
________________________
|
1
|
Select
as applicable.
|
|
2
|
Amount
to be adjusted by the counterparties to take into account any commitment
reductions made between the Trade Date and the Effective
Date.
|
|
3
|
Set
forth, to at least nine decimals, as a percentage of the Commitments
of
all Lenders.
|
|
4
|
To
be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade
Date.
|
| 5 | To be added only if the consent of the Borrower is required by the terms of the Credit Agreement. |
ANNEX
1
to
Assignment and Assumption
STANDARD
TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION
1.
Representations
and Warranties.
1.1
Assignor.
The
Assignor (a) represents and warrants that (i) it is the legal and beneficial
owner of the Assigned Interest, (ii) the Assigned Interest is free and clear
of
any lien, encumbrance or other adverse claim and (iii) it has full power
and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated
hereby
and (b) assumes no responsibility with respect to (i) any statements,
representations or warranties made in or in connection with the Credit Agreement
or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or
any
collateral thereunder, (iii) the financial condition of the Borrower, any
of its
Subsidiaries or Affiliates or any other Person obligated in respect of any
Loan
Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.
1.2.
Assignee.
The
Assignee (a) represents and warrants that (i) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment
and
Assumption, to consummate the transactions contemplated hereby and to become
a
Lender under the Credit Agreement, (ii) none of the consideration used to
make
the purchase of the Assigned Interest under this Assignment and Assumption
constitutes “plan assets” as defined under ERISA, and the rights and interests
of the Assignee in and under the Loan Documents will not be “plan assets” under
ERISA, (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent
of
the Assigned Interest, shall have the obligations of a Lender thereunder,
(iv)
it has received a copy of the Credit Agreement, together with copies of the
most
recent financial statements delivered pursuant to Section 6.9 thereof and
such
other documents and information as it has deemed appropriate to make its
own
credit analysis and decision to enter into this Assignment and Assumption
and to
purchase the Assigned Interest, on the basis of which it has made such analysis
and decision independently and without reliance on the Administrative Agent
or
any other Lender, and (v) if it is a Non-U.S. Lender, attached to this
Assignment and Assumption is any documentation required to be delivered by
it
pursuant to the terms of the Credit Agreement, duly completed and executed
by
the Assignee, and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations that by the terms of the Loan Documents are
required to be performed by it as a Lender.
2.
Payments.
From
and after the Effective Date, the Administrative Agent shall make all payments
in respect of the Assigned Interest (including, without limitation, payments
of
principal, interest and fees) to the Assignor for amounts that have accrued
to
but excluding the Effective Date and to the Assignee for amounts that have
accrued from and after the Effective Date.
3.
General
Provisions.
This
Assignment and Assumption shall be binding upon, and shall inure to the benefit
of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts,
which
together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment
and
Assumption
by
telecopier shall be effective as delivery of a manually executed counterpart
of
this Assignment
and
Assumption.
THIS
ASSIGNMENT AND ASSUMPTION SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED
IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
EXHIBIT
F
ACCOUNT
DESIGNATION LETTER
March
__,
2007
JPMorgan
Chase Bank, N.A., as Administrative Agent
under
the
Credit Agreement
referred
to below
0000
Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx,
XX 00000
Attention:
Xxxxxxxx Xxxxx
Telephone:
000-000-0000
FAX:
000-000-0000
E-mail:
xxxxxxxx.xxxxx.xxxxx@xxxxxxxx.xxx
Ladies
and Gentlemen:
This
Account Designation Letter is delivered to you by Puget Sound Energy, Inc.
(the
“Borrower”),
a
Washington corporation, pursuant to Section 4.1 of the Credit Agreement dated
as
of March 29, 2007 (as amended, restated or otherwise modified, the “Credit
Agreement”)
by and
among the Borrower, the Lenders from time to time party thereto and JPMorgan
Chase Bank, N.A., as Administrative Agent (the “Administrative
Agent”).
The
Administrative Agent is hereby authorized to disburse all Loan proceeds into
the
following account, unless the Borrower shall designate, in writing to the
Administrative Agent, one or more other accounts:
[INSERT
Name of Bank/
ABA
Routing Number/
and
Account Number]
IN
WITNESS WHEREOF, the undersigned has executed this Account Designation Letter
this __ day of March, 2007.
PUGET
SOUND ENERGY, INC.
By:
_________________________
Name:
_______________________
Title:
________________________
EXHIBIT
G
SWINGLINE
NOTE
U.S.$35,000,000 March
__,
2007
For
value
received, PUGET SOUND ENERGY, INC., a Washington corporation (the “Borrower”),
hereby promises to pay to the order of JPMORGAN CHASE BANK, N.A., as Swingline
Lender under the Credit Agreement referred to below (the “Lender”),
on or
before the Facility Termination Date (as defined in the Credit Agreement
referred to below), the principal amount of Thirty-Five Million United States
dollars (U.S.$35,000,000) or, if less, the aggregate principal amount of
all
Swingline Loans (as defined below) made by the Lender to the Borrower pursuant
to the Credit Agreement. Unless otherwise defined herein, terms defined in
the
Credit Agreement, when used herein, have the respective meanings assigned
to
them in the Credit Agreement.
The
Borrower promises to pay interest on the unpaid principal amount of each
Swingline Loan, from the date of such Swingline Loan until such principal
amount
is paid in full, at such interest rates and at such times as specified in
the
Credit Agreement.
Both
principal and interest are payable in lawful money of the United States of
America, in immediately available funds, to JPMorgan Chase Bank, N.A., a
national banking association, as administrative agent (the “Administrative
Agent”),
at
its office located at 0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000
or as
otherwise directed by the Administrative Agent. Each Swingline Loan and all
payments made on account of the principal thereof shall be recorded by the
Lender and, before any transfer hereof, endorsed on the schedule attached
hereto, which is part of this Swingline Note.
This
Swingline Note is one of the “Swingline Notes” referred to in, and is entitled
to the benefits of, the Credit Agreement dated as of March 29, 2007 (as it
may hereafter be amended, restated, supplemented or otherwise modified from
time
to time, the “Credit
Agreement”)
among
the Borrower, the Lender and the other financial institutions party thereto
and
JPMorgan Chase Bank, N.A., as Administrative Agent and as Swingline Lender
and
LC Issuer. The Credit Agreement, among other things, (a) provides for the
making of swingline loans (the “Swingline
Loans”)
by the
Lender to the Borrower from time to time in an aggregate amount not to exceed
the U.S.-dollar amount first set forth above, the indebtedness of the Borrower
resulting from each Swingline Loan being evidenced by this Swingline Note,
and
(b) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof before the maturity hereof upon the terms and conditions
specified therein.
To
the
extent permitted by law, the Borrower hereby waives presentment, demand,
protest
and notice of any kind. No failure to exercise, and no delay in exercising,
any
rights hereunder on the part of the holder hereof shall operate as a waiver
of
any such rights.
The
Borrower has caused this Swingline Note to be executed by its duly authorized
representative as of the date first written above.
PUGET
SOUND ENERGY, INC.
By:
_________________________
Name:
_______________________
Title:
________________________
|
SCHEDULE
TO SWINGLINE NOTE
|
||||
|
|
||||
|
Amount
|
Amount
of
Principal
Paid
|
Unpaid
Principal
|
Notation
|
|
|
Date
|
of
Loan
|
or
Prepaid
|
Balance
|
Made
By
|
