HomeMy WebLinkAbout20070523Credit Agreement.pdfIDAHO POWER COMPANY
". ." '
O, BOX 70 ;
. '
BOISE, IDAHO 83707
. . .'" ". '' ,) :;. ,
: it ';:: ~iC
Ii
\,;, ,. ."
An IDACORP Company
UT\:
.\;
PATRICKA. HARRINGTON
Corporate Secretary
May 22, 2007
Ms. Jean D. Jewell
Secretary
Idaho Public Utilities Commission
Statehouse
Boise, Idaho 83720
Re:In the Matter ofthe Application ofldaho Power Company for an Order
Authorizing up to $450 000 000 Aggregate Principal Amount at any One
Time Outstanding of Short- Term Borrowings
Case No. IPC-07- 06
Dear Ms. Jewell:
Enclosed for filing with the Commission in the above referenced case are five (5)
copies of the Credit Agreement dated April 25, 2007, between Idaho Power Company
and eleven participating lenders. The Credit Agreement will be utilized by Idaho Power
in connection with its short-term borrowings as authorized by the Commission in this
case.
Please feel free to contact me at 388-2878 or at pharrington~idahopower.com if
you have any questions regarding this Supplemental Application filing.
Sincerely,
ll.q Cl/U
,/
,ftt.~k A. Harrington
Steve Keen
Randy Mills
Terri Carlock
Telephone (208) 388-2878, Fax (208) 388-6936
Execution Version
Syndicated CUSIP NO. 45139CAC6
AMEND ED AND REST A TED
CREDIT AGREEMENT
;':::'::-=:;
---C
among
- , ." ,
~ . r-
, ;
IDAHO POWER COMPANY
as Borrower
- -..
THE LENDERS NAMED HEREIN (.1\
W ACHOVIA BANK, NATIONAL ASSOCIA nON
as Administrative Agent, Swingline Lender and LC Issuer
JPMORGAN CHASE BANK, N.
as Syndication Agent
and
KEYBANK NATIONAL ASSOCIATION
and
US BANK NATIONAL ASSOCIATION
and
BANK OF AMERICA, N.
as Documentation Agents
$300 000 000 Senior Credit Facilities
ACHOVIA CAPITAL MARKETS, LLC
and
J.P. MORGAN SECURITIES INC.
Joint Lead Arrangers and Joint Book Runners
Dated as of April 25, 2007
1O23995v418445,00012
1.1
1.2
2.4
2.15
3.1
3.4
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
Definitions............................................................................................................................
Other Interpretive Provisions. .. ....................................................... ........................
........ ...
ARTICLE 2
THE CREDITS
Commitments.....................................................................................................................
Required Payments; Termination..... .............................
................. ................................. ..
Types of Advances; Minimum Amount of Each Advance ....................................... .........
Fees ....................................................................................................................................
Reduction or Termination of Aggregate Commitment......................................................
Optional Principal Payments................................................. ........................................... ..
Requesting Advances............................ .......... .................................................................. .
Conversion and Continuation of Outstanding Advances...................................................
Changes in Interest Rate, etc..............................................................................................
Rates Applicable After Default..........................................................................................
Method of Payment............................................. ...............................................................
Noteless Agreement; Evidence of Indebtedness....
......... ........... ......... .......... ................... ..
Telephonic Notices ............ .........................
.......................... ........................................... ..
Interest Payment Dates; Interest and Fee Basis .................................................................
Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions..........................................................................................................................
Lending Installations..........................................................................................................
Non-Receipt of Funds by the Administrative Agent .........................................................
Facility LCs........................ .......................................... ...................................... .............. ..
Replacement of Lender......................... ......
............ ......................................................... ..
Increase in Commitments. .................... ........................................................
.................... .
Extension of Facility Termination Date....................... .........................
.......................... ...
ARTICLE 3
YIELD PROTECTION; TAXES
Yield Protection........................................................... .....
.............................................. ...
Changes in Capital Adequacy Regulations.......... .....
.................... ..................... ............. ...
Availability of Types of Advances ....................................................................................33
Funding Indemnification............ ......................................................................... ............. ..
Taxes. .................................................................................................................................
1O23995v418445,00012
4.1
5.1
5.2
5.4
5.16
6.4
6.12
Alternate Lending Installation; Lender Statements; Survival oflndemnity ......................
ARTICLE 4
CONDITIONS PRECEDENT
Initial Credit Extension................... .............
.......... ......................................................... ...
3 7
Each Credit Extension........................................................................................................
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Existence and Standing................................................... ............................................ .......
Authorization and Validity........ ...................... ..................................................................3 8
No Conflict; Government Consent ....................................................................................
Financial Statements................. .............
......................... ....... ........................................... .
Material Adverse Change ..................................................................................................
Taxes................................................................................ ..................................................
Litigation and Contingent Obligations.................
................. ..... ............................. ..........
.40
Subsidiaries.................................. ..................
""""""""""""""""""""""""""""" ......... .
ERISA.................. .................................................................... ......................................... .
Accuracy of Information.................................................................. ................................. .
Regulation U ........................................................................................... ......................... ..
Material Agreements............................... ................................... ........................
............... .
Compliance With Laws..... ....................... ........................................................................ ..
Ownership of Properties ........................................ ...............................
............................ .
Plan Assets; Prohibited Transactions..........................................
"""""""""""""""""'" ..
Environmental Matters..... ............
.................... ..... ........... ........... .......... ........ ................... ..
Investment Company Act .....
...... ..................................... ........ ..................... .................. ...
OF AC; PATRIOT Act.......... ................................................... .......
.............. .."................ .
ARTICLE 6
COVENANTS
Financial Reporting............................................................................................................
Use of Proceeds........................................ ........................ ............................................... ...
Notice of Default, etc. ........................................................................................................
Conduct of Business....................... ......................................................
............................ .
Taxes ..................................................................................................................................
Insurance.................... .................... ................................................ ....... .......................... ...
Compliance with Laws ......................................................................................................
Maintenance of Properties........... ........
............................................................................. .
Inspection............................................. ............................................................................. .
Merger and Sale of Assets .................................................................................................
Liens...... ................. ...................... .................................... ..................................... ............ .
Leverage Ratio...................................................................................................................4 7
1023995v418445.00012
6.14
6.15
6.16
9.4
9.12
10.
10.
10.
10.4
10.
10.
Investments and Acquisitions........................................... ............ .....................................4 7
Subsidiary Dividend Restrictions .................................
............... .............. .......................
.4 7
Affiliates ............................................................................................................................
OF AC, PATRIOT Act Compliance............. .....
........ .................. ............... ................. ......
.48
ARTICLE 7
DEFAULTS
ARTICLE 8
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
Acceleration; Facility LC Collateral Account. ......
............ ..... .................. ............. ............
Amendments ......................................................................................................................
Preservation of Rights................. ...................
............... .................................... ................ .
ARTICLE 9
GENERAL PROVISIONS
Survival of Representations..................
""""""""""""" """"""""""""""""""""""""" .
Governlllental Regulation....... ..... ................................................................................. .....
Headings ......................................................"""""""""""""""""""""""""""................
Entire Agreement.............. ....... ...................................... ................................................... .
Several Obligations; Benefits of this Agreement................... ...................
......... ....... ........ .
Expenses; Indemnification................................................................. ...................
............ .
Numbers of Documents.................................................................................................... .
Accounting.........................................................................................................................
Severability of Provisions................................................................................................. .
Nonliability of Lenders """""""""""""""""""""""""""................................................
Confidentiality......................... ..................................................................... ................. ....
Nonreliance ........................................................................................................................
Disclosure ........... ............................................... ..... ...........................
............................ ....
5 5
PATRIOT Act Notice.. ...........
........... ........................................................ ....................... .
Counterparts.......................................................................................................................
ARTICLE 10
THE ADMINISTRATIVE AGENT
Appointment; Nature of Relationship
"""""""""""""""""""'" ..... ................. .................
Powers. .................................................................................................... .......................... .
General Immunity.............................. .................,..
....... ........ ....... .......... ........................... .
No Responsibility for Loans, Recitals, etc. ......... ................... ..... .........
............................ ..
Action on Instructions of Lenders..................................... ................................................ .
Employment of Administrative Agents and Counsel........................................................
1O23995v418445,00012 111
10.
10.
10.
10.10
10.11
10.
10.
10.
10.15
10.16
11.1
11.2
12.
12.
12.
12.4
12.
13.
13.
14.
14.
14.
Reliance on Documents; Counsel......................................................................................
Administrative Agent's Reimbursement and Indemnification ..........................................
Notice of Default.................... ...... ...............................................
................... ................... .
Rights as a Lender..............................................................................................................
Lender Credit Decision........... ............................................. .................
.................. .......... .
Successor Administrative Agent............................... ..................
................. ..... ......"........ .
Administrative Agent and Joint Lead Arranger Fees ........................................................
Delegation to Affiliates........................ ........
................. ....... ......... ............."................. .....
Other Agents...................... .......
....................... ............... .................................................. .
LC Issuer and Swingline Lender..................................................................................
:.....
ARTICLE 11
SETOFF; RATABLE PAYMENTS
Setoff........................................................ ................................. ....................................... ..
Ratable Payments ..... .............. ......................
.................................................................... ..
ARTICLE 12
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
Successors and Assigns.......................................................................... ..............
............ ..
Participations.......................................................... ........
...................................... ............ ..
Assignments. ........................... .............................. ................................. ........................... .
Dissemination of Information............ ...........................
.................... ........................ ........ .
Tax Treatment........................ .................................................... ............ .......................,... .
ARTICLE 13
NOTICES
Notices. ....................................... ..................... ...................
....... .................. .......... ........... .
Change of Address.................. ............. ................................................. ............................ .
ARTICLE
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
CHOICE OF LAW ............................................................................................................
CONSENT TO JURISDICTION .................. .....................................................................
WAIVER OF JURY TRlAL..............................................................................................
1023995v418445,00012
Schedule I
Schedule II
Schedule 5.
Schedule 5.12
Schedule 5.
Schedule 13.
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E-
EXHIBIT E-
EXHIBIT F
1O23995v418445.00012
Pricing Schedule
Commitments
List of Subsidiaries
Agreements which restrict Subsidiary Dividends or which could reasonably
be expected to have a Material Adverse Effect
Indebtedness and Liens
Notice Addresses
Form of Opinion
Form of Compliance Certificate
Form of Assignment Agreement
Form of Loan/Credit Related Money Transfer Instructions
Form of Revolving Note
Form of Swing line Note
Form of Joinder Agreement
AMENDED AND RESTATED CREDIT AGREEMENT
This Amended and Restated Credit Agreement, dated as of April 25 , 2007, is made
among Idaho Power Company, an Idaho corporation, the Lenders, and Wachovia Bank, National
Association, as Administrative Agent for the Lenders.
RECITALS
A. Idaho Power Company, certain banks and other financial institutions, and
Wachovia Bank, National Association, as administrative agent, are parties to a certain Credit
Agreement dated as of May 3, 2005 (the "Existing Credit Agreement"
B. The parties hereto have agreed to amend and restate the Existing Credit
Agreement on the terms and conditions set forth herein, it being the intention of the parties
hereto that this Amended and Restated Credit Agreement and the Credit Documents executed in
connection herewith shall not effect the novation of the obligations ofldaho Power Company
thereunder but be merely a restatement and, where applicable, an amendment of and substitution
for the terms governing such obligations hereafter.
C. The Lenders are willing to make available to Idaho Power Company the credit
facilities provided for herein subject to and on the terms and conditions set forth in this
Agreement.
AGREEMENT
NOW, THEREFORE in consideration of the mutual provisions, covenants and
agreements herein contained, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. As used in this Agreement:
Acquisition" means any transaction, or any series of related transactions, consummated
on or after the Closing Date, by which the Borrower or any of its Subsidiaries (i) acquires any
going business or all or substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or otherwise or (ii)
directly or indirectly acquires (in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a corporation which have
ordinary voting power for the election of directors (other than securities having such power only
by reason of the happening of a contingency) or a majority (by percentage or voting power) of
the outstanding ownership interests of a palinership or limited liability company.
Administrative Agent" means Wachovia Bank, National Association in its capacity as
administrative agent (i., contractual representative) of the Lenders pursuant to Article 10 and
1023995v418445.00012
not in its individual capacity as a Lender, and any successor Administrative Agent appointed
pursuant to Article 10.
Administrative Questionnaire" means an administrative questionnaire, substantially in
the form supplied by the Administrative Agent, completed by a Lender and furnished to the
Administrative Agent in connection with this Agreement.
Advance" means a borrowing hereunder, (i) made by the Lenders (or the Swingline
Lender in the case of a Swingline Loan) on the same Borrowing Date, or (ii) converted or
continued by the Lenders on the same date of conversion or continuation and, in either case
consisting of Revolving Loans of the same Type (or a Swingline Loan made by the Swingline
Lender) and, in the case of Eurodollar Advances, for the same Interest Period.
Affected Lender" is defined in Section 2.19.
Affiliate" of any Person means any other Person directly or indirectly controlling,
controlled by or under common control with such Person. A Person shall be deemed to control
another Person if the controlling Person owns 10% or more of any class of voting securities (or
other ownership interests) of the controlled Person or possesses, directly or indirectly, the power
to direct or cause the direction of the management or policies of the controlled Person, whether
through ownership of stock, by contract or otherwise.
Aggregate Commitment" means the aggregate of the Commitments of all the Lenders
as reduced or increased from time to time pursuant to the terms hereof.
Aggregate Outstanding Credit Exposure" means, at any time, the aggregate of the
Outstanding Credit Exposure of all the Lenders.
Agreement" means this Amended and Restated Credit Agreement, as amended
modified, restated or supplemented from time to time in accordance with its terms.
Agreement Accounting Principles" means generally accepted accounting principles as in
effect from time to time applied in a manner consistent with that used in preparing financial
statements referred to in Section 5.4.
Alternate Base Rate" means , for any day, a rate of interest per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of the Federal Funds Effective Rate for such
day plus 1/2% per annum.
Applicable Margin" means, with respect to Revolving Loans of any Type at any time
the percentage rate per annum which is applicable at such time with respect to Revolving Loans
of such Type as set forth in the Pricing Schedule.
Assuming Lender is defined in Section 2.20(a).
Authorized Officer" means any of the Chief Executive Officer, President, Chief
Financial Officer, Vice President or Treasurer of the Borrower, acting singly.
1O23995v418445,00012
Available Aggregate Commitment" means, at any time, the Aggregate Commitment
then in effect minus the Aggregate Outstanding Credit Exposure at such time.
Borrower" means Idaho Power Company, an Idaho corporation, and its successors and
assIgns.
Borrowing Date" means a date on which an Advance is made hereunder.
Borrowing Notice" is defined in Section
Business Day" means (i) with respect to any borrowing, payment or rate selection of
Eurodollar Advances, a day (other than a Saturday or Sunday) on which banks generally are
open in Charlotte, North Carolina, New York, New York and London, England for the conduct
of substantially all of their commercial lending activities, interbank wire transfers can be made
on the Fedwire system and dealings in United States dollars are carried on in the London
interbank market and (ii) for all other purposes, a day (other than a Saturday or Sunday) on
which banks generally are open in Charlotte, North Carolina 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.
Cash Equivalent Investments" means (i) short-term obligations of, or fully guaranteed
by, the United States of America, (ii) commercial paper rated A-lor better by S&P or P-l or
better by Moody , (iii) demand deposit accounts maintained in the ordinary course of business
and (iv) certificates of deposit issued by and time deposits with commercial banks (whether
domestic or foreign) having capital and surplus in excess of $100 000 000; provided in each case
that the same provides for payment of both principal and interest (and not principal alone or
interest alone) and is not subject to any contingency regarding the payment of principal or
interest.
Change" is defined in Section
Change in Control" means the acquisition by any Person, or two or more Persons acting
in concert, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934) of 20% or more of the
outstanding shares of voting stock of the Parent.
Change in Law" means any change in law or in the interpretation, administration or
application thereof (including the introduction of any new law, treaty or governmental rule
regulation or order), or any determination of a court or governmental authority, in each case that
becomes effective after the date hereof.
1023995v418445.00012
Closing Date" means the first date all the conditions precedent in Section 4.1 are
satisfied or waived in accordance with the terms of this Agreement.
Code" means the Internal Revenue Code of 1986 , as amended.
Collateral Shortfall Amount" is defined in Section 8.1(a).
Commitment"means, for each Lender, the obligation of such Lender to make Revolving
Loans to the Borrower and to participate in the Swingline Loans and Facility LCs issued upon
the application of the Borrower, in an aggregate amount not exceeding the amount set forth
opposite its name on Schedule , if such Lender has entered into one or more assignments
that has become effective pursuant to Section 12.3(a) or is an Increasing Lender or Assuming
Lender, the amount set forth for such Lender at such time in the Register maintained by the
Administrative Agent, in either case, as such amount may be reduced or increased from time to
time pursuant to the terms hereof.
Commitment Increase and "Commitment Increase Date" are defined in Section
20(a).
Condemnation" is defined in Section 7(i).
Consent Date" is defined in Section 2.21(a).
Consenting Lender is defined in Section 2.21(a).
Consolidated Indebtedness means at any time the Indebtedness of the Borrower and its
Subsidiaries calculated on a consolidated basis as of such time; provided however that the
aggregate outstanding Indebtedness evidenced by Hybrid Securities shall be excluded to the
extent that the total book value of such Hybrid Securities does not exceed 15% of Consolidated
Total Capitalization as of such time.
Consolidated Net Worth" means at any time the consolidated stockholders ' equity of the
Borrower and its Subsidiaries calculated on a consolidated basis as of such time.
Consolidated Total Capitalization means at any time, without duplication, the sum of
(i) Consolidated Indebtedness, (ii) Consolidated Net Worth and (iii) the aggregate outstanding
amount of Hybrid Securities, each calculated as of such time.
Contingent Obligation of a Person means any agreement, undertaking or arrangement
by which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide
funds for the payment of, or otherwise becomes or is contingently liable upon, the obligation or
liability of any other Person, or agrees to maintain the net worth or working capital or other
financial condition of any other Person, or otherwise assures any creditor of such other Person
against loss, including any comfort letter, operating agreement, take or pay contract or the
obligations of any such Person as general partner of a partnership with respect to the liabilities of
the partnership.
Conversion/Continuation Notice" is defined in Section 2.
1O23995v418445.00012
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.
Credit Extension" means the making of an Advance or the issuance of a Facility LC.
Credit Extension Date" means the Borrowing Date for an Advance or the issuance date
for a Facility LC.
Default" means an event described in Article
Eligible Replacement Lender is defined in Section 2.21(b).
Environmental Laws" means any and all applicable federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees
plans, injunctions, permits, concessions, grants, franchises, licenses, agreements and other
governmental restrictions relating to (i) the protection of the environment, (ii) the effect of the
environment on human health, (iii) emissions, discharges or releases of pollutants, contaminants
hazardous substances or wastes into surface water, ground water or land, or (iv) the manufacture
processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants
contaminants, hazardous substances or wastes or the clean-up or other remediation thereof.
ERISA"means the Employee Retirement Income Security Act of 1974.
Eurodollar Advance" means a Revolving Loan which, except as otherwise provided in
Section 2.bears interest at the applicable Eurodollar Rate.
Eurodollar Base Rate" means, with respect to a Eurodollar Advance for the relevant
Interest Period, an interest rate per annum obtained by dividing (y) the rate of interest (rounded
upward, if necessary, to the nearest 1/16 of one percentage point) appearing on Telerate
Successor Page 3750 (or any successor page) or (z) if no such rate is available, the rate of
interest determined by the Administrative Agent to be the rate or the arithmetic mean of rates
(rounded upward, if necessary, to the nearest 1/16 of one percentage point) at which Dollar
deposits in immediately available funds are offered to first-tier banks in the London interbank
Eurodollar market, in each case under (y) and (z) above at approximately 11 :00 a., London
time, two (2) Business Days prior to the first day of such Interest Period for a period
substantially equal to such Interest Period and in an amount substantially equal to the amount of
Wachovia s Eurodollar Advance comprising part of such Borrowing.
Eurodollar Rate means, with respect to a Eurodollar Advance for the relevant Interest
Period, the sum of (i) the quotient of (a) the Eurodollar Base Rate applicable to such Interest
Period, divided by (b) 1.00 minus the Reserve Requirement (expressed as a decimal) applicable
to such Interest Period, plus (ii) the Applicable Margin.
Excluded Taxes" means, in the case of each Lender or applicable Lending Installation
and the Administrative Agent, taxes imposed on its overall net income, receipts, profits, capital
net worth, franchise taxes , branch profits or similar taxes, imposed on it, by (i) the jurisdiction
1023995v418445,00012
under the laws of which such Lender or the Administrative Agent is incorporated or organized
(ii) the jurisdiction in which the Administrative Agent's or such Lender s principal executive
office or such Lender s applicable Lending Installation is located, or (iii) the jurisdiction in
which the Lender, Lending Installation or the Administrative Agent carries on a trade or
business.
Extension Date" is defined in Section 2.21(a).
Extension Notice is defined in Section 2.21(a).
Facility LC"is defined in Section 2.18(a).
Facility LC Application" is defined in Section 2.18(c).
Facility LC Collateral Account" is defined in Section 2.18(k).
Facilitv LC Maturitv Date is defined in Section 2.18(a).
Facility Termination Date" means the earlier to occur of (i) April 25 , 2012 (as such date
may be extended from time to time pursuant to Section 2.21) or (ii) 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 (rounded
upwards, if necessary, to the nearest 1/100 of one percentage point) 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. on such day on such transactions
received by the Administrative Agent from three Federal funds brokers of recognized standing
selected in good faith by the Administrative Agent.
Fee Letters" mean (a) the Wachovia Fee Letter and (b) the JPMorgan Fee Letter.
First Mortgage" means that certain Mortgage and Deed of Trust, dated as of October 1
1937, as supplemented, under which the Borrower is Mortgagor and Deutsche Bank Trust
Company Americas (formerly known as Bankers Trust Company) and R.G. Page (Stanley Burg
successor individual trustee) are Trustees, as it may from time to time be further amended
supplemented or otherwise modified.
Floating Rate" means, for any day, a rate per annum equal to the sum of (i) the Alternate
Base Rate for such day plus (ii) the Applicable Margin, in each case changing when and as the
Alternate Base Rate changes.
Floating Rate Advance means a Revolving Loan which, except as otherwise provided
in Section 2., bears interest at the Floating Rate.
1023995v418445,00012
Hybrid Securities shall mean any hybrid securities, including any trust preferred
securities, deferrable interest subordinated debt securities, mandatory convertible debt securities
or other hybrid securities issued by the Borrower or any Subsidiary or financing vehicle of the
Borrower that (i) have an original maturity of at least twenty (20) years, (ii) require, absent an
event of default with respect to such securities, no repayments or prepayments and no mandatory
redemptions or repurchases, in each case, prior to the date which is ninety-one (91) days after the
occurrence of the Facility Termination Date and (iii) permit the Borrower or any such Subsidiary
or any such financing vehicle of the Borrower, respectively, at its option, to defer certain
scheduled interest payments.
Increasing Lender" is defined in Section 20(a).
Indebtedness" of a Person means such Person s (i) obligations for borrowed money,
(ii) obligations representing the deferred purchase price of Property or services (other than
accounts payable arising in the ordinary course of such Person s business payable on terms
customary in the trade), (iii) obligations, whether or not assumed, secured by Liens or payable
out of the proceeds or production from Property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, acceptances , or other instruments
(v) obligations of such Person to purchase securities or other Property arising out of or in
connection with the sale of the same or substantially similar securities or Property,
(vi) Capitalized Lease Obligations, (vii) Contingent Obligations, (viii) obligations in respect of
Letters of Credit, (ix) Rate Management Obligations, (x) preferred stock which is required by the
terms thereof to be redeemed, or for which mandatory sinking fund payments are due, by a fixed
date, (xi) Off-Balance Sheet Liabilities, (xii) any other obligation for borrowed money or other
financial accommodation which in accordance with Agreement Accounting Principles would be
shown as a liability on the consolidated balance sheet of such Person and (xiii) amounts
outstanding under a Permitted Receivables Securitization.
Indemnitee" is defined in Section 9.6(b).
Interest Period" means, with respect to a Eurodollar Advance, a period of one, two, three
or six months commencing on a Business Day selected by the Borrower pursuant to this
Agreement. Each Interest Period shall end on the day which corresponds numerically to such
date one, two, three or six months thereafter provided that ifthere is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such Interest Period
shall end on the last Business Day of such next, second, third or sixth succeeding month. If an
Interest Period would otherwise end on a day which is not a Business Day, such Interest Period
shall end on the next succeeding Business Day, provided that if said next succeeding Business
Day falls in a new calendar month, such Interest Period shall end on the immediately preceding
Business Day.
Investment" of a Person means any loan, advance (other than commission, travel and
similar advances to officers and employees made in the ordinary course of business), extension
of credit (other than accounts receivable arising in the ordinary course of business on terms
customary in the trade) or contribution of capital by such Person; stocks, bonds, mutual funds
partnership interests, notes, debentures or other securities owned by such Person; any deposit
1023995v418445,00012
accounts and certificate of deposit owned by such Person; and structured notes, derivative
financial instruments and other similar instruments or contracts owned by such Person.
Joinder Agreement"means a written agreement substantially in the form of Exhibit F
hereto.
Joint Lead Arrangers means Wachovia Capital Markets, LLC, and J.P. Morgan
Securities Inc., and their respective successors, in their capacity as Joint Lead Arrangers and
Joint Book Runners.
JP Morgan Fee Letter" means the letter agreement dated March 15 2007, among the
Borrower, Parent, JPMorgan Chase Bank, N., and J.P. Morgan Securities Inc.
LC Fee is defined in Section 2.18(d).
LC Issuer" means each of W achovia (or any subsidiary or Affiliate of Wachovia
designated by Wachovia) and any other Lender approved by the Borrower and the
Administrative Agent, in each case in its capacity as issuer of Facility LCs hereunder.
LC Obligations" means, at any time, the sum, without duplication, of (i) the aggregate
undrawn stated amount under all Facility LCs outstanding at such time plus (ii) the aggregate
unpaid amount at such time of all Reimbursement Obligations.
LC Payment Date" is defined in Section 2.18(e).
Lenders means the lending institutions listed on the signature pages of this Agreement
their respective successors and assigns and any other Person that shall have become a Lender
party hereto pursuant to a Joinder Agreement; provided, that unless the context otherwise
requires, each reference herein to the Lenders shall be deemed to include the Swingline Lender
in such capacity.
Lending Installation" means, with respect to a Lender or the Administrative Agent, the
office, branch, subsidiary or Affiliate of such Lender or the Administrative Agent specified in its
Administrative Questionnaire or otherwise selected by such Lender or the Administrative Agent
pursuant to Section 2.16.
Letter of Credit" of a Person means a letter of credit or similar instrument which is
issued upon the application of such Person or upon which such Person is an account party or for
which such Person is in any way liable.
LIBOR Market Index Rate means, for any day, the sum of (i) the rate of interest for
one month U.S. dollar deposits appearing on Telerate Successor Page 3750 (or any successor
page) determined as of 11 :00 m. (London time), for 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 Agent from another recognized source or interbank quotation) plus (ii) the
Applicable Margin in effect for a Eurodollar Advance from time to time.
1023995v418445,00012
LIBOR Market Index Rate Advance" means a Swingline Loan which, except as
otherwise provided in Section 2., bears interest at the LIBOR Market Index Rate.
Lien" means any lien (statutory or other), mortgage, pledge, hypothecation, assignment
deposit arrangement, encumbrance or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention agreement).
Loans" means the Revolving Loans and the Swingline Loans.
Loan Documents" means this Agreement, the Facility LC Applications, the Joinder
Agreements and any Notes issued pursuant to Section 2.12.
London Business Dav" means a day (other than Saturday or Sunday) on which banks
generally are open in London, England for the conduct of substantially all of their commercial
lending activities and dealings are carried on in the London interbank market.
Material Adverse Effect" means a material adverse effect on (i) the business, Property,
condition (financial or otherwise), results of operations, or prospects of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform its obligations under the
Loan Documents, or (iii) the validity or enforceability of any of the Loan Documents or the
rights or remedies of the Administrative Agent, the LC Issuers or the Lenders thereunder.
Material Indebtedness" means Indebtedness (other than Obligations) of the Borrower or
any of its Subsidiaries, in an aggregate principal amount exceeding $25 000 000 (or its
equivalent in any other currency). For purposes of determining Material Indebtedness, the
principal amount" of the obligations of the Borrower or any of its Subsidiaries in respect of any
Rate Management Obligation at any time shall be the maximum aggregate amount (giving effect
to any netting agreements) that the Borrower or such Subsidiary would be required to pay if such
Rate Management Obligation were terminated at such time of determination.
Material Subsidiary of the Borrower means any Subsidiary (a) whose gross revenues
for the fiscal years in respect of which such statements and related balance sheet were prepared
(or the last full fiscal year in the case of quarterly financial statements) exceeded 10% of the
consolidated gross revenue of the Borrower and all its Subsidiaries for such fiscal year or (b)
whose gross assets as at the end of such fiscal year were in excess of 10% of the consolidated
gross assets of the Borrower and all its Subsidiaries for such fiscal year.
Modify" and "Modification" are defined in Section 2.18(a).
Moody " means Moody s Investors Service, Inc.
Multiemplover Plan" means a Plan maintained pursuant to a collective bargaining
agreement or any other arrangement to which the Borrower or any member of the Controlled
Group is a party to which more than one employer is obligated to make contributions.
Non-Consenting Lender" is defined in Section 2.21(a).
1023995v418445,00012
Non-US. Lender is defined in Section 3.5(d).
Notes means any or all of 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 Swing line Lender, any LC Issuer or any indemnified party
arising under the Loan Documents.
OFAC" means the U.S. Depmiment of the Treasury s Office of Foreign Assets Control
and any successor thereto.
Off-Balance Sheet Liability" of a Person means, without duplication, (i) any repurchase
obligation or liability of such Person with respect to accounts or notes receivable sold by such
Person, (ii) any liability under any Sale and Leaseback Transaction which is not a Capitalized
Lease, (iii) any liability under any so-called "synthetic lease" transaction entered into by such
Person, or (iv) any obligation arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a liability on the
balance sheets of such Person, but excluding from this clause (iv) all Operating Leases.
Operating Lease" of a Person means any lease of Property (other than a Capitalized
Lease) by such Person as lessee, which has an original term (including any required renewals and
any renewals effective at the option of the lessor) of one year or more.
Other Taxes" is defined in Section 3.5(b).
Outstanding Credit Exposure" means, as to any Lender at any time, the sum of (i) the
aggregate principal amount of all Loans made by such Lender outstanding at such time, (ii) such
Lender s Pro Rata Share of the LC Obligations at such time and (iii) such Lender s (other than
the Swingline Lender s) Pro Rata Share of the Swing line Loans outstanding at such time.
Parent"means IDACORP, Inc., an Idaho corporation, and its successors and assigns.
Participants" is defined in Section 12.2(a).
PATRIOT Act"means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act, Title III
of Pub. L. 107-56 (signed into law October 26 2001)), as amended from time to time, and any
successor statute, and all rules and regulations from time to time promulgated thereunder.
Payment Date" means the last day of each March, June, September and December.
PBGC" means the Pension Benefit Guaranty Corporation, or any successor thereto.
Permitted Receivables Securitization" means a limited recourse or non-recourse sale
assignment or contribution of accounts receivable and related records, collateral and rights of the
Borrower and/or one or more of its Subsidiaries to one or more special purpose entities, in
1023995v418445,00012
connection with the issuance of obligations by any such special purpose entity secured by such
assets, the proceeds of the issuance of which obligations shall be made available, directly or
indirectly, to the Borrower and/or the applicable Subsidiaries.
Person" means any natural person, corporation, firm, joint venture, partnership, limited
liability company, association, enterprise, trust or other entity or organization, or any government
or political subdivision or any agency, department or instrumentality thereof.
Plan" means an employee pension benefit plan which is covered by Title IV of ERISA
or subject to the minimum funding standards under Section 412 of the Code as to which the
Borrower or any member of the Controlled Group may have any liability.
Pricing Schedule" means Schedule I attached hereto identified as such.
. "
Prime Rate" means the per annum interest rate publicly announced from time to time by
Wachovia in Charlotte, North Carolina, to be its prime rate (which may not necessarily be its
lowest or best lending rate), as adjusted to conform to changes as of the opening of business on
the date of any such change in such prime rate.
Prior Termination Date is defined in Section 2.21(b).
Propertv" of a Person means any and all property, whether real, personal, tangible
intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.
Pro Rata Share" means, with respect to a Lender, a portion equal to a fraction the
numerator of which is such Lender s Commitment and the denominator of which is the
Aggregate Commitment (or, if the Commitments have been terminated, a portion equal to a
fraction (i) the numerator of which is equal to the sum of (A) the principal amount of such
Lender s Loans, (B) such Lender s (other than the Swingline Lender s) participation interest in
the Swingline Loans, and (C) such Lender s participation interest in the LC Obligations, and (ii)
the denominator of which is equal to the sum of (A) the aggregate principal amount of all Loans
and (B) all LC Obligations).
Purchasers" is defined in Section 12.3(a).
Rate Management Obligations" of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created, arising,
evidenced or acquired (including all renewals, extensions and modifications thereof and
substitutions therefor), under (i) any and all Rate Management Transactions, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any Rate Management
Transactions.
Rate Management Transaction means any transaction (including an agreement with
respect thereto) now existing or hereafter entered into by the Borrower or the Parent which is a
rate swap, basis swap, forward rate transaction, commodity swap, commodity option, equity or
equity index swap, equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction, forward transaction
currency swap transaction, cross-currency rate swap transaction, currency option or any other
1O23995v418445,00012
similar transaction (including any option with respect to any of these transactions) or any
combination thereof, whether linked to one or more interest rates , foreign currencies, commodity
prices, equity prices or other financial measures.
Refunded Swingline Loans is defined in Section 2.7(c).
Register" is defined in Section 12.3(c).
Regulation D"means Regulation D of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor thereto or other regulation or official
interpretation of said Board of Governors relating to reserve requirements applicable to member
banks of the Federal Reserve System.
Regulation U" means Regulation U of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor or other regulation or official
interpretation of said Board of Governors relating to the extension of credit by banks for the
purpose of purchasing or carrying margin stocks applicable to member banks of the Federal
Reserve System.
Reimbursement Obligations means, at any time, the aggregate of all obligations of the
Borrower then outstanding under Section 2.18 to reimburse the LC Issuers for amounts paid by
the LC Issuers in respect of anyone or more drawings under Facility LCs.
RepOliable Event" means a reportable event as defined in Section 4043 of ERISA and
the regulations issued under such section, with respect to a Plan, excluding, however, such events
as to which the PBGC has by regulation waived the requirement of Section 4043(a) of ERISA
that it be notified within thirty (30) days of the occurrence of such event provided that a failure
to meet the minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the notice
requirement in accordance with either Section 4043 (a) of ERISA or Section 412(d) of the Code.
Reports" is defined in Section 9.
Required Lenders means Lenders in the aggregate having at least a majority of the
Aggregate Commitment or, if the Aggregate Commitment has been terminated, Lenders in the
aggregate holding at least a majority of the Aggregate Outstanding Credit Exposure.
Reserve Requirement"means, with respect to an Interest Period, the reserve percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher 1/100th of 1 %) in
effect from time to time during such Interest Period, as provided by the Federal Reserve Board
applied for determining the maximum aggregate reserve requirement (including all basic
supplemental, marginal and other reserves), which is imposed under Regulation Don
Eurocurrency liabilities or under any similar or successor regulation with respect to
Eurocurrency liabilities or Eurocurrency funding.
Revolving Loans is defined in Section 2.1(a).
1O23995v418445.00012
Revolving Note" means a promissory note issued at the request of a Lender pursuant to
Section 2.12(d), in substantially the form of Exhibit E-l hereto, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from the Revolving Loans made by such
Lender.
Risk-Based Capital Guidelines is defined in Section 3.
S&P"means Standard and Poor s Ratings Services, a division of The McGraw Hill
Companies, Inc.
Sale and Leaseback Transaction" means any sale or other transfer of Property by any
Person with the intent to lease such Property as lessee.
Sanctioned Country" means a country subject to a sanctions program identified on the list
maintained by OF AC and available at http://vo/ww.treas.gov/offices/enforcement/ofac/sanctions/, or
as otherwise published from time to time.
Sanctioned Person" means (i) a Person named on the list of Specially Designated
Nationals or Blocked Persons maintained by OF AC available at
http://www.treas.gov/offices/enforcement/ofac/sdn/til sdn.pdt: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.
Single Employer Plan" means a Plan maintained by the Borrower or any member of the
Controlled Group for employees of the Borrower or any member of the Controlled Group.
Subsidiary" of a Person means (i) any corporation more than 50% of the outstanding
securities having ordinary voting power of which shall at the time be owned or controlled
directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and
one or more of its Subsidiaries, or (ii) any partnership, limited liability company, association
joint venture or similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a Subsidiary of the
Borrower.
Substantial Portion means, with respect to the Property of the Borrower and its
Subsidiaries, Property which (i) represents more than 10% of the consolidated assets of the
Borrower and its Subsidiaries as would be shown in the consolidated financial statements of the
Borrower and its Subsidiaries as of the beginning of the twelve-month period ending with the
month in which such determination is made, or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Borrower and its Subsidiaries as
reflected in the financial statements referred to in clause (i) above.
Swingline Borrowing Notice" is defined in Section 2.7(b).
Swingline Commitment" shall mean $30 000 000 or, if less, the Aggregate Commitment
at the time of determination, as such amount may be reduced.
1023995v418445,00012
Swingline Lender" shall mean Wachovia in its capacity as maker of Swingline Loans
and its successors in such capacity.
Swingline Loans is defined in Section 2.1(c).
Swingline Note means a promissory note issued at the request of the Swingline Lender
pursuant to Section 2.12(d), in substantially the form of Exhibit E-2 hereto, evidencing the
aggregate indebtedness of the Borrower to the Swingline Lender resulting from Swing line Loans
made by the Swingline Lender.
Taxes" means any and all present or future taxes, duties, levies, imposts, deductions
charges or withholdings, and any and all liabilities with respect to the foregoing, but excluding
Excluded Taxes and Other Taxes.
Transferee" is defined in Section 12.4.
~"
is defined in Section 2.3.
Unfunded Liabilities" means the amount (if any) by which the present value of all
vested and unvested accrued benefits under all Single Employer Plans exceeds the fair market
value of all such Plan assets allocable to such benefits, all determined as of the then most recent
valuation date for such Plans using PBGC actuarial assumptions for single employer plan
terminations.
Unmatured Default" means an event which but for the lapse of time or the giving of
notice, or both, would constitute a Default.
Unutilized Swingline Commitment" means, with respect to the Swingline Lender at any
time, the Swingline Commitment at such time less the aggregate principal amount of all
Swingline Loans that are outstanding at such time.
Wachovia" means Wachovia Bank, National Association, and its successors and
assIgns.
Wachovia Fee Letter" means the letter agreement, dated March 15 2007, among
Borrower, the Parent, Wachovia and Wachovia Capital Markets, LLC.
Whollv-Owned Subsidiary" of a Person means (i) any Subsidiary all of the outstanding
voting securities of which shall at the time be owned or controlled, directly or indirectly, by such
Person or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or
more Wholly-Owned Subsidiaries of such Person, or (ii) any partnership, limited liability
company, association, joint venture or similar business organization 100% of the ownership
interests having ordinary voting power of which shall at the time be so owned or controlled.
1.2 Other Interpretive Provisions
(a) The meanings of defined terms are equally applicable to the singular and plural
forms of such terms.
1O23995v4 18445,00012
(b)
specified.
Section Schedule and Exhibit references are to this Agreement unless otherwise
(c) The terms "including,
" "
includes" and "include" shall be deemed to be followed
by the phrase "without limitation.
(d) In the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including ; the words "" and "until" each mean "to but
excluding , and the word "through" means "to and including.
(e) Unless otherwise expressly specified, all references herein to a particular time
shall mean Charlotte, North Carolina time.
(f) Unless otherwise expressly provided herein, (i) references to agreements
(including this Agreement), other contractual instruments and organizational documents shall be
deemed to include all subsequent amendments and other modifications thereto, but only to the
extent such amendments and other modifications are not prohibited by the terms of this
Agreement, and (ii) references to any statute or regulation are to be construed as including all
statutory and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such statute or regulation.
(g)
All references to the Lenders or any of them shall be deemed to include the LC
Issuers unless specifically provided otherwise or unless the context otherwise requires.
ARTICLE 2
THE CREDITS
Commitments.
(a) From and including the Closing Date to but excluding the Facility Termination
Date, each Lender severally agrees, on the terms and conditions set forth in this Agreement, to
make loans to the Borrower (each such loan, a "Revolving Loan and collectively, the
Revolving Loans ) in an amount equal to its Pro Rata Share of all Revolving Loans requested
by the Borrower provided that after giving effect to the making of each Revolving Loan (and to
any concurrent repayment of Swingline Loans with proceeds of Revolving Loans made pursuant
to such Advance), such Lender s Outstanding Credit Exposure shall not exceed its Commitment.
Subject to the terms of this Agreement, the Borrower may borrow, repay and reborrow
Revolving Loans at any time prior to the Facility Termination Date.
(b) From and including the Closing Date to but excluding the Facility Termination
Date, each Lender severally agrees, on the terms and conditions set forth in this Agreement, to
participate in Facility LCs issued upon the request of the Borrower provided that after giving
effect to the issuance of each such Facility LC, such Lender s Outstanding Credit Exposure shall
not exceed its Commitment. The LC Issuers will issue Facility LCs hereunder on the terms and
conditions set forth in Section 2.18.
1O23995v418445,00012
(c) From and including the Closing Date to but excluding the Facility Termination
Date, the Swingline Lender agrees, on the terms and conditions hereinafter set forth, to make
loans to the Borrower (each, a "Swingline Loan " and collectively, the "Swingline Loans ), in an
aggregate principal amount at any time outstanding not exceeding the Swingline Commitment.
Swing line Loans may be made even if the Swingline Lender s Outstanding Credit Exposure
would exceed its Commitment at such time, but provided that no Advance of Swingline Loans
shall be made if, immediately after giving effect thereto, the Aggregate Outstanding Credit
Exposure would exceed the Aggregate Commitments at such time. Subject to and on the terms
and conditions of this Agreement, the Borrower may borrow, repay (including by means of a
Borrowing of Revolving Loans pursuant to Section 2.7(c)) and reborrow Swingline Loans at any
time prior to the Facility Termination Date provided that the Borrower may not borrow
Swingline Loans the proceeds of which are used to repay outstanding Swingline Loans.
Required Payments; Termination
(a) Except to the extent due or paid sooner pursuant to the provisions of this
Agreement, the Borrower shall repay to the Lenders the aggregate outstanding principal amount
of each Revolving Loan on the Facility Termination Date.
(b) Except to the extent due or paid sooner pursuant to the provisions of this
Agreement, the Borrower shall repay to the Swingline Lender the aggregate outstanding
principal amount of each Swingline Loan on the earlier to occur of (i) fourteen (14) days after
the Borrowing Date of each such Swingline Loan, and (ii) the Facility Termination Date.
(c) Notwithstanding anything to the contrary herein, the Aggregate Outstanding
Credit Exposure and all unpaid Obligations shall be paid in full by the Borrower on the Facility
Termination Date.
Types of Advances; Minimum Amount of Each Advance . The Revolving Loans
may be Floating Rate Advances or Eurodollar Advances (each, a "
~"
of Advance), or a
combination thereof, selected by the Borrower in accordance with Sections 2.7 and 2.8. Each
Eurodollar Advance shall be in the amount of $5 000 000 or a higher integral multiple of
$100 000, and each Floating Rate Advance shall be in the amount of $5 000 000 or a higher
integral multiple of $100 000 provided that any Floating Rate Advance may be in the amount of
the Available Aggregate Commitment. The Swingline Loans shall be made and maintained as
LIBOR Market Index Rate Advances at all times.
2.4 Fees. In addition to certain fees described in Section 2.18(d):
(a) The Borrower agrees to pay to the Administrative Agent for the account of each
Lender an upfront fee in an amount agreed to in the Wachovia Fee Letter, payable on the date of
execution of this Agreement.
(b) The Borrower agrees to pay to the Administrative Agent for the account of each
Lender according to its Pro Rata Share a facility fee at a percentage rate per annum applicable at
such time as set forth in the Pricing Schedule on the average daily Aggregate Commitment from
the date hereof to the Facility Termination Date (and, if applicable, thereafter on the Aggregate
Outstanding Credit Exposure until no Credit Extensions remain outstanding), payable in arrears
1O23995v418445,00012
on each Payment Date hereafter and on the Facility Termination Date (and, if applicable
thereafter on demand).
(c) The Borrower shall pay to the Administrative Agent for the account of each
Lender according to its Pro Rata Share, a utilization fee equal to the percentage rate per annum
applicable at such time as set forth in the Pricing Schedule times the aggregate outstanding
amount of Revolving Loans on each day that the Aggregate Outstanding Credit Exposure
exceeds 50% of the Aggregate Commitments then in effect (or, if terminated, in effect
immediately prior to such termination). The utilization fee shall be due and payable in arrears on
each Payment Date hereafter and on the Facility Termination Date (and, if applicable, thereafter
on demand).
(d) The Borrower shall pay to the Joint Lead Arrangers and the Administrative Agent
for their own respective accounts fees in the amounts and at the times specified in the Fee
Letters. Such fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.
Reduction or Termination of Aggregate Commitment.The Borrower may
permanently reduce the Aggregate Commitment in whole, or in part ratably among the Lenders
in integral multiples of $10 000 000, upon at least five (5) Business Days' 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 facility fees and utilization fees shall be payable on
the effective date of any termination of the obligations of the Lenders to make Credit Extensions
hereunder.
Optional Principal Pavments . The Borrower may from time to time pay, without
penalty or premium, all outstanding Floating Rate Advances or, in an aggregate amount of
000 000 or a higher integral multiple of $1 00 000, any portion of the outstanding Floating
Rate Advances upon one (1) Business Day s prior notice to the Administrative Agent. The
Borrower may from time to time pay, subject to the payment of any funding indemnification
amounts required by Section 3.4 but without penalty or premium, all outstanding Eurodollar
Advances or, in an aggregate amount of $5 000 000 or a higher integral multiple of $100 000
any portion of the outstanding Eurodollar Advances upon three (3) Business Days ' prior notice
to the Administrative Agent.
Requesting Advances
(a) In order to obtain an Advance (other than (x) Advances of Swingline Loans
which shall be made pursuant to Section 2.7(b), (y) Advances for the purpose of repaying
Refunded Swingline Loans, which shall be made pursuant to Section 2.7(c), or (z) conversions
of outstanding Revolving Loans made pursuant to Section 2.8), the Borrower shall give the
Administrative Agent irrevocable notice (a "Borrowing Notice ) not later than 11 :00 a.m. at least
one (1) Business Day before the Borrowing Date of each Floating Rate Advance and three (3)
Business Days before the Borrowing Date for each Eurodollar Advance, specifying:
(i)the Borrowing Date, which shall be a Business Day, of such Advance
1O23995v418445,00012
(ii)the aggregate amount of such Advance
(iii)the Type of Advance selected, and
(iv)
thereto.
in the case of each Eurodollar Advance, the Interest Period applicable
Not later than 1 :00 p.m. on each Borrowing Date, each Lender shall make available its Pro Rata
Share of the Revolving Loan or Revolving Loans in funds immediately available to the
Administrative Agent at its address specified pursuant to Article 13. The Administrative Agent
will make the funds so received from the Lenders available to the Borrower at the Administrative
Agent's aforesaid address.
(b) In order to obtain an Advance of a Swing line Loan, the Borrower shall give the
Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the
Administrative Agent) irrevocable notice (a "Swingline Borrowing Notice ) not later than 11 :00
m. on the Borrowing Date of each Swingline Loan, specifying the aggregate amount of such
Swingline Loan (which shall not be less than $1 000 000 and, if greater, shall be in an integral
multiple of $500 000 in excess thereof (or, if less, in the amount of the Unutilized Swingline
Commitment)). Not later than 4:00 p.m. on the Borrowing Date, the Swingline Lender shall
make available an amount equal to the amount of the requested Swingline Loan in funds
immediately available to the Administrative Agent at its address specified pursuant to Article 13.
The Administrative Agent will make the funds so received from the Swingline Lender available
to the Borrower at the Administrative Agent's aforesaid address.
(c) With respect to any outstanding Swingline Loans, the Swing line Lender may at
any time (whether or not an Event of Default has occurred and is continuing) in its sole and
absolute discretion, and is hereby authorized and empowered by the Borrower to, cause an
Advance of Revolving Loans to be made for the purpose of repaying such Swing line Loans by
delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline
Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than
11 :00 a.m. on the day of the proposed Borrowing Date therefor, a notice (which shall be deemed
to be a Borrowing Notice given by the Borrower) requesting the Lenders to make Revolving
Loans (which shall be made initially as Floating Rate Advances) on the Borrowing Date in an
aggregate amount equal to the amount of such Swingline Loans (the "Refunded Swingline
Loans ) outstanding on the date such notice is given that the Swingline Lender requests to be
repaid. Not later than 1 :00 p.m. on the requested Borrowing Date, each Lender (other than the
Swingline Lender) shall make available its Pro Rata Share of the Refunded Swingline Loans in
funds immediately available to the Administrative Agent at its address specified pursuant to
Article 13. To the extent the Lenders have made such amounts available to the Administrative
Agent as provided hereinabove, the Administrative Agent will make the aggregate of such
amounts available to the Swingline Lender in like funds as received by the Administrative
Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans.
Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing
Date, the Refunded Swing line Loans shall be deemed to be repaid with the proceeds of the
Revolving Loans made as provided above (including a Revolving Loan deemed to have been
made by the Swingline Lender), and such Refunded Swing line Loans deemed to be so repaid
1O23995v418445,00012
shall no longer be outstanding as Swing line Loans but shall be outstanding as Revolving Loans.
If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall
be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy,
insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be
shared ratably among all the Lenders in the manner contemplated by Section 11.
(d) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to
the Borrower, Revolving Loans are not made pursuant to Section 2.7(c) in an amount sufficient
to repay any amounts owed to the Swing line Lender in respect of any outstanding Swingline
Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on
behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to
have sold without recourse, representation or warranty, and each Lender shall be deemed to have
purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in
an amount equal to its Pro Rata Share of the unpaid amount thereof together with accrued
interest thereon. Upon one (1) Business Day s prior notice from the Swingline Lender, each
Lender (other than the Swingline Lender) shall make available to the Administrative Agent at its
address specified pursuant to Article 13 an amount, in immediately available funds, equal to its
respective participation. To the extent the Lenders have made such amounts available to the
Administrative Agent as provided hereinabove, the Administrative Agent will make the
aggregate of such amounts available to the Swingline Lender in like funds as received by the
Administrative Agent. In the event any such Lender fails to make available to the
Administrative Agent the amount of such Lender s participation as provided in this
Section 2.7(d), the Swingline Lender shall be entitled to recover such amount on demand from
such Lender, together with interest thereon for each day from the date such amount is required to
be made available for the account of the Swingline Lender until the date such amount is made
available to the Swingline Lender at the Federal Funds Effective Rate for the first three (3)
Business Days and thereafter at the Floating Rate applicable to Revolving Loans. Promptly
following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline
Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such
Lender s Pro Rata Share of such payment in accordance with Section 2.11.
(e) Notwithstanding any provision of this Agreement to the contrary, the obligation
of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of
repaying any Refunded Swingline Loans pursuant to Section 2.7(c) and each such Lender
obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.7(d)
shall be absolute and unconditional and shall not be affected by any circumstance or event
whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or
other right that such Lender may have against the Swingline Lender, the Administrative Agent
the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance
of any Default or Event of Default, or (iii) the failure of the amount of such Advance of
Revolving Loans to meet the minimum Borrowing amount specified in Section 2.3.
Conversion and Continuation of Outstanding Advances. Floating Rate Advances
shall continue as Floating Rate Advances unless and until such Floating Rate Advances are
converted into Eurodollar Advances pursuant to this Section 2.8 or are repaid in accordance with
Section 2.6. Each Eurodollar Advance shall continue as a Eurodollar Advance until the end of
the then applicable Interest Period therefor, at which time such Eurodollar Advance shall be
1023995v418445.00012
automatically converted into a Floating Rate Advance unless (x) such Eurodollar Advance is or
was repaid in accordance with Section 2.6 or (y) the Borrower shall have given the
Administrative Agent a Conversion/Continuation Notice (as defined below) requesting that, at
the end of such Interest Period, such Eurodollar Advance continue as a Eurodollar Advance for
the same or another Interest Period. Subject to Section 2., the Borrower may elect from time to
time to convert all or any part of a Floating Rate Advance into a Eurodollar Advance. The
Borrower shall give the Administrative Agent irrevocable notice (a "Conversion/Continuation
Notice ) of each conversion of a Floating Rate Advance into a Eurodollar Advance or
continuation of a Eurodollar Advance not later than 11 :00 a.m. at least three (3) Business Days
prior to the date of the requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such conversion or
continuation
(ii) the aggregate amount and Type of the Advance which is to be converted
or continued, and
(iii) the amount of such Advance, which is to be converted into or continued as
a Eurodollar Advance and the duration of the Interest Period applicable thereto.
Changes in Interest Rate. etc.Each Floating Rate Advance shall bear interest on
the outstanding principal amount thereof, for each day from the date such Floating Rate Advance
is made or is automatically converted from a Eurodollar Advance into a Floating Rate Advance
pursuant to Section 2., to the date it is paid or is converted into a Eurodollar Advance pursuant
to Section 2., at a rate per annum equal to the Floating Rate for such day. Changes in the rate
of interest on that portion of any Revolving Loan maintained as a Floating Rate Advance will
take effect simultaneously with each change in the Alternate Base Rate.
(b) Each Eurodollar Advance shall bear interest on the outstanding principal amount
thereof from the first day of the Interest Period applicable thereto to (but not including) the last
day of such Interest Period at the interest rate determined by the Administrative Agent as
applicable to such Eurodollar Advance based upon the Borrower s selections under Sections 2.
and 2.8 and otherwise in accordance with the terms hereof. No Interest Period may end after the
Facility Termination Date.
(c) Each LIB OR Market Index Rate Advance shall bear interest on the outstanding
principal amount thereof, for each day from the date such LIBOR Market Index Rate Advance is
made to the date it is paid at a rate per annum equal to the LIBOR Market Index Rate for such
day.
10 Rates Applicable After Default.Notwithstanding anything to the contrary
contained in Sections 2., 2.8 or 2., during the continuance of a Default the Required Lenders
may, at their option, by notice to the Borrower, declare that no Advance may be made as
converted into or continued as a Eurodollar Advance. During the continuance of a Default the
Required Lenders may, at their option, by notice to the Borrower, declare that (i) each Eurodollar
Advance shall bear interest for the remainder of the applicable Interest Period at the rate
otherwise applicable to such Interest Period plus 2% per annum, (ii) each Floating Rate Advance
1O23995v418445,00012
shall bear interest at a rate per annum equal to the Floating Rate in effect from time to time plus
2% per annum (iii) each LIBOR Market Index Rate Advance shall bear interest at a rate per
annum equal to the LIBOR Market Index 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 Sections 7(g) or 7(h), the interest rates set forth in clauses (i), (ii) and (Hi) 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.
2.11 Method ofPavment.All payments of the Obligations hereunder shall be made
without setoff, deduction, or counterclaim, in immediately available funds to the Administrative
Agent at the Administrative Agent's address specified pursuant to Article 13 , or at any other
Lending Installation of the Administrative Agent specified in writing by the Administrative
Agent to the Borrower, by 12:00 noon (local time) on the date when due and shall (except for
payments of Reimbursement Obligations for which the applicable LC Issuer has not received
payments from the Lenders or as otherwise specifically required hereunder) be applied ratably by
the Administrative Agent among the Lenders. Each payment delivered to the Administrative
Agent for the account of any Lender shall be delivered promptly by the Administrative Agent to
such Lender in the same type of funds that the Administrative Agent received at its address
specified pursuant to Article 13 or at any Lending Installation specified in a notice received by
the Administrative Agent from such Lender. The Administrative Agent is hereby authorized
charge any account of the Borrower maintained with Wachovia for each payment of principal
interest, Reimbursement Obligations and fees as it becomes due hereunder. Each reference to
the Administrative Agent in this Section 2.11 shall also be deemed to refer, and shall apply
equally, (i) to the Swingline Lender, in the case of payments required to be made by the
Borrower to the Swingline Lender and (ii) to the applicable LC Issuer, in the case of payments
required to be made by the Borrower to such LC Issuer.
Noteless Agreement; Evidence ofIndebtedness
(a) Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan
made by such Lender from time to time, including the amounts of principal and interest payable
and paid to such Lender from time to time hereunder.
(b) The Administrative Agent shall also maintain the Register pursuant to Section
12.3(c) and subaccounts for each Lender in which (taken together) it will record (a) the amount
of each Loan made hereunder, the Type thereof and the Interest Period (if any) with respect
thereto, (b) the amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder, (c) the original stated amount of each Facility LC
and the amount ofLC 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.
(c) The entries maintained in the accounts, Register and subaccounts maintained
pursuant to Sections 2.12(a) and (b) above shall be prima facie evidence of the existence and
amounts of the Obligations therein recorded; provided that the failure of the Administrative
Agent or any Lender to maintain such accounts, such Register or such subaccount, as applicable
1023995v418445,00012
or any error therein shall not in any manner affect the obligation of the Borrower to repay the
Obligations in accordance with their terms.
(d) The Loans made by each Lender shall, if requested by the applicable Lender
(which request shall be made to the Administrative Agent), be evidenced (i) in the case of
Revolving Loans, by a Revolving Note, and (ii) in the case of the Swingline Loans, by a
Swingline Note, in each case appropriately completed and executed by the Borrower and payable
to the order of such Lender. Each Note shall be entitled to all of the benefits of this Agreement
and the other Loan Documents and shall be subject to the provisions hereof and thereof.
13 Telephonic Notices. The Borrower hereby authorizes the Lenders and the
Administrative Agent to extend, convert or continue Advances, effect selections of Types of
Advances and to transfer funds based on telephonic notices made by any person or persons the
Administrative Agent or any Lender in good faith believes to be acting on behalf of the
Borrower, it being understood that the foregoing authorization is specifically intended to allow
Borrowing Notices, Swingline Borrowing Notices and Conversion/Continuation Notices to be
given telephonically. The Borrower agrees to deliver promptly to the Administrative Agent a
written confirmation, if such confirmation is requested by the Administrative Agent or any
Lender, of each telephonic notice signed by an Authorized Officer. If the written confirmation
differs in any material respect from the action taken by the Administrative Agent and the
Lenders , the records of the Administrative Agent and the Lenders shall govern absent manifest
error.
Interest Payment Dates; Interest and Fee Basis
(a) Interest accrued on each Floating Rate Advance shall be payable on each Payment
Date, commencing with the first such date to occur after the date hereof, on any date on which
such Floating Rate Advance is prepaid, whether due to acceleration or otherwise, and at the
Facility Termination Date. Interest accrued on that portion of the outstanding principal amount
of any Floating Rate Advance converted into a Eurodollar Advance on a day other than a
Payment Date shall be payable on the date of conversion.
(b) Interest accrued on each Eurodollar Advance shall be payable on the last day of
its applicable Interest Period, on any date on which the Eurodollar Advance is prepaid, whether
by acceleration or otherwise, and at the Facility Termination Date. Interest accrued on each
Eurodollar Advance having an Interest Period longer than three months shall also be payable on
the last day of each three-month interval during such Interest Period.
(c) Interest accrued on each LIBOR Market Rate Advance shall be payable on any
date on which such LIBOR Market Rate Advance is paid in full, whether due to acceleration or
otherwise, and on the date such LIBOR Market Index Rate Advance shall become due and
payable pursuant to Section 2.2(b).
(d) Interest on Floating Rate Advances bearing interest at the Prime Rate shall be
calculated for actual days elapsed on the basis of a 365 , or when appropriate, 366 day year. All
other interest and all fees shall be calculated for actual days elapsed on the basis of a 360-day
year. Interest shall be payable for the day an Advance is made but not for the day of any
1O23995v418445,00012
payment on the amount paid if payment is received prior to 12:00 noon (local time) at the place
of payment. If any payment of principal of or interest on an Advance shall become due on a day
which is not a Business Day, such payment shall be made on the next succeeding Business Day
(except for interest payments in respect of Eurodollar Advances whose Interest Period ends on a
day which is not a Business Day, and the next succeeding Business Day falls in a new calendar
month, in which case interest accrued on such Eurodollar Advance shall be payable on the
immediately preceding Business Day) and, in the case of a principal payment, such extension of
time shall be included in computing interest in connection with such payment.
15 Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions . Promptly after receipt thereof, the Administrative Agent will notify each Lender of
the contents of each Aggregate Commitment reduction notice, Borrowing Notice (including
Borrowing Notices received from the Swingline Lender in accordance with Section 7(c)),
Swingline Borrowing Notice, Conversion/Continuation Notice, and repayment notice received
by it hereunder. Promptly after notice from any LC Issuer, the Administrative Agent will notify
each Lender of the contents of each request for issuance of a Facility LC hereunder. The
Administrative Agent will notify each Lender of the interest rate applicable to each Eurodollar
Advance and each LIBOR Market Index Rate Advance promptly upon determination of such
interest rate and will give each Lender prompt notice of each change in the Alternate Base Rate.
2.16 Lending Installations. Each Lender may book its Loans, its participations in any
outstanding Swingline Loans, and its participation in any LC Obligations and any LC Issuer may
book the Facility LCs at any Lending Installation selected by such Lender or such 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 Loans, Facility LCs
participations in outstanding Swingline Loans, participations in LC Obligations and any Notes
issued hereunder shall be deemed held by each Lender or each LC Issuer, as the case may be, for
the benefit of any such Lending Installation. Each Lender and each 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 Loan payments or payments with respect
to Facility LCs are to be made.
2.17 Non-Receipt of Funds by the Administrative Agent.Unless the Borrower or a
Lender, as the case may be, notifies the Administrative Agent prior to the date on which it is
scheduled to make payment to the Administrative Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal, interest or fees to
the Administrative Agent for the account of the Lenders, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be obligated to, make the amount of such payment
available to the intended recipient in reliance upon such assumption. If such Lender or the
Borrower, as the case may be, has not in fact made such payment to the Administrative Agent
the recipient of such payment shall, on demand by the Administrative Agent, repay to the
Administrative Agent the amount so made available together with interest thereon in respect of
each day during the period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such amount at a rate per
annum equal to (x) in the case of payment by a Lender, the Federal Funds Effective Rate for
1O23995v418445.00012
such day for the first three (3) days and, thereafter, the interest rate applicable to the relevant
Loan or (y) in the case of payment by the Borrower, the interest rate applicable to the relevant
Loan.
Facility LCs
(a) 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 ("Modifv," and each such action a
Modification ), from time to time from the Closing Date 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 the earlier of (x) the fifth
Business Day prior to the Facility Termination Date and (y) one year after its issuance (the
Facility LC Maturity Date
),
provided that any Facility LC with a one-year tenor may provide
for the renewal thereof for additional one-year periods (but in no event beyond the date referred
to in clause (x) above).
(b) Participations . Upon the issuance or Modification by any LC Issuer of a Facility
LC in accordance with this Section 2., such LC Issuer shall be deemed, without fUliher 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 without recourse or warranty, a participation in such
Facility LC (and each Modification thereof) and the related LC Obligations in proportion to its
Pro Rata Share. Notwithstanding anything herein to the contrary, effective upon any
Commitment Increase pursuant to Section 2., each Lender s participation in any Facility LC
outstanding on such date shall be adjusted to reflect its Pro Rata Share after giving effect to such
Increase.
(c) Notice. Subject to Section 2.18(a), the Borrower shall give the applicable LC
Issuer notice prior to 11 :00 a.m. at least three (3) Business Days (or such shorter period as is
acceptable to the LC Issuer in any given case) prior to the proposed date of issuance or
Modification of each Facility LC, 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 any LC Issuer of any Facility LC shall, in addition to the conditions precedent
set forth in Article 4 (the satisfaction of which the 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
acting reasonably, and that the Borrower shall have executed and delivered such application
agreement and/or such 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.
1O23995v418445.00012
(d) LC 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 issued hereunder, a letter of credit fee at a per annum rate equal to the Applicable
Margin for Eurodollar Advances in effect from time to time on the average daily undrawn stated
amount under such standby Facility LC, such fee to be payable in arrears on each Payment Date
(each such fee described in this sentence an "LC Fee ). The Borrower shall also pay to the
applicable LC Issuer for its own account (x) a fronting fee at a per annum rate of 0.125% on the
average daily undrawn stated amount under each Facility LC issued hereunder, such fee to be
payable in arrears on each Payment Date, and (y) documentary and processing charges in
connection with the issuance or Modification of and draws under Facility LCs in accordance
with the applicable LC Issuer s standard schedule for such charges as in effect from time to time.
(e) Administration; Reimbursement by Lenders. Upon receipt from the beneficiary
of any Facility LC of any demand for payment under such Facility LC, the applicable LC Issuer
shall notify the Administrative Agent and the Administrative Agent shall promptly notify the
Borrower and each other 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 Pavment Date ). The responsibility of such
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 in connection with such
presentment 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 the Facility
LCs 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 to the extent such amount is not reimbursed by the
Borrower pursuant to Section 2.18(f) below, 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 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
(3) days and, thereafter, at a rate of interest equal to the rate applicable to Floating Rate
Advances.
(f) Reimbursement bv Borrower.The Borrower shall be irrevocably and
unconditionally obligated to reimburse any LC Issuer on the applicable LC Payment Date for any
amounts to be paid by such LC Issuer upon any drawing under any Facility LC, 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 strictly complying with the terms and conditions of such Facility
LC. All such amounts paid by such 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
1O23995v418445.00012
applicable to Floating Rate Advances 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 Advances for
such day if such day falls after such LC Payment Date. The applicable LC Issuer will pay to
each Lender ratably in accordance with its Pro Rata Share all amounts received by it from the
Borrower for application in payment, in whole or in part, of the 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 2.18(e). Subject to
the terms and conditions of this Agreement (including the submission of a Borrowing Notice in
compliance with Section 2.7 and the satisfaction of the applicable conditions precedent set forth
in Article 4), the Borrower may request an Advance hereunder for the purpose of satisfying any
Reimbursement Obligation.
(g)
Obligations Absolute. The Borrower s obligations under this Section 2.18 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 the LC Issuers and the Lenders shall not be responsible for, and the
Borrower s Reimbursement Obligation in respect of any Facility LC shall not 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 whom any Facility LC may be
transferred or (iii) any claims or defenses whatsoever of the Borrower or of 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 any Lender under or in connection
with each 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 any
Lender under any liability to the Borrower. Nothing in this Section 2.18(g) 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 2.18(1).
(h) Actions ofLC 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 or teletype message, statement, order or
other document 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., 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
1023995v418445,00012
thereto shall be binding upon the Lenders and any future holders of a participation in any Facility
LC.
(i) 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 and damages, losses
liabilities, costs or expenses which such Lender, such LC Issuer or the Administrative Agent may
incur (or which may be claimed against such Lender, such 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 or
expenses which such LC Issuer may incur by reason of or in connection with (i) 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) or (ii) by reason of or on account of such LC Issuer issuing any Facility LC which
specifies that the term "Beneficiary" included therein includes any successor by operation of law
of the named Beneficiary, but which Facility LC does not require that any drawing by any such
successor Beneficiary be accompanied by a copy of a legal document, satisfactory to such LC
Issuer, evidencing the appointment of such successor Beneficiary; provided that the Borrower
shall not be required to indemnify any Lender, any 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 presented under any Facility LC complied with the terms of such Facility LC
or (y) such LC Issuer s failure to pay under any Facility LC after the presentation to it of a
request strictly complying with the terms and conditions of such Facility LC. Nothing in this
Section 2.18(i) is intended to limit the obligations of the Borrower under any other provision of
this Agreement.
G) 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 cost, expense
(including reasonable counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful misconduct or such LC
Issuer s failure to pay under any Facility LC after the presentation to it of a request strictly
complying with the terms and conditions of the Facility LC) that such indemnitees may suffer or
incur in connection with this Section 2.18 or any action taken or omitted by such indemnitees
hereunder.
(k) Facility LC Collateral Account. The Borrower agrees that it will, upon the
request of the Administrative Agent or the Required Lenders when a Default exists and until the
final expiration date of any Facility LC and thereafter as long as any amount is payable to any
LC Issuer or the Lenders in respect of any Facility LC, maintain a special collateral account
pursuant to arrangements satisfactory to the Administrative Agent (the "Facility LC Collateral
Account ) at the Administrative Agent's office at the address specified pursuant to Article 13, in
the name of such Borrower but under the sole dominion and control of the Administrative Agent
for the benefit of the Lenders and in which such Borrower shall have no interest other than as set
forth in Section 8.1. The Borrower hereby pledges, assigns and grants to the Administrative
1O23995v418445,00012
Agent, on behalf of and for the ratable benefit of the Lenders and the LC Issuers, a security
interest in all of the Borrower s right, title and interest in and to all funds which may from time
to time be on deposit in the Facility LC Collateral Account to secure the prompt and complete
payment and performance of the Obligations (it being understood that the Borrower shall have
no obligation, and the Administrative Agent shall have no right, to deposit any funds into the
Facility LC Collateral Account except during the existence of a Default). The Administrative
Agent will invest any funds on deposit from time to time in the Facility LC Collateral Account in
certificates of deposit ofWachovia having a maturity not exceeding thirty (30) days. Nothing in
this Section 2.18(k) shall either require the Borrower to deposit any funds in the Facility LC
Collateral Account or obligate the Administrative Agent to require the Borrower to deposit any
funds in the Facility LC Collateral Account or limit the right of the Administrative Agent to
release any funds held in the Facility LC Collateral Account, in each case other than as required
by Section 8.
(1) Rights as a Lender.In its capacity as a Lender, each LC Issuer shall have the
same rights and obligations as any other Lender.
2.19 Replacement of Lender. If the Borrower is required pursuant to Sections 3., 3.
or 3.to make any additional payment to any Lender or if any Lender s obligation to make or
continue, or to convert Floating Rate Advances into, Eurodollar Advances shall be suspended
pursuant to Section 3.(any Lender so affected an "Affected Lender ), the Borrower may elect
if such amounts continue to be charged or such suspension is still effective, to replace such
Affected Lender as a Lender party to this Agreement provided that no Default or Unmatured
Default shall have occurred and be continuing at the time of such replacement, and provided
further that, concurrently with such replacement, (i) another bank or other entity which is
reasonably satisfactory to the Borrower and the Administrative Agent shall agree, as of such
date, to purchase for cash the Advances and other Obligations (excluding the amounts payable
by the Borrower pursuant to clause (ii) of this proviso) due to the Affected Lender pursuant to an
assignment substantially in the form of Exhibit C and to become a Lender for all purposes under
this Agreement and to assume all obligations of the Affected Lender to be terminated as of such
date and to comply with the requirements of Section 12.applicable to assignments, and (ii) the
Borrower shall pay to such Affected Lender in same day funds on the day of such replacement
(A) all interest, fees and other amounts then accrued but unpaid to such Affected Lender by the
Borrower hereunder to and including the date of termination, including payments due to such
Affected Lender under Sections 3., 3.2 or 3.and (B) an amount, if any, equal to the payment
which would have been due to such Lender on the day of such replacement under Section 3.4
had the Loans of such Affected Lender been prepaid on such date rather than sold to the
replacement Lender.
Increase in Commitments.
(a) The Borrower shall have the right at any time and from time to time after the
Closing Date and prior to the date that is thirty (30) days prior to the Facility Termination Date to
increase the Aggregate Commitment (each such proposed increased being a "Commitment
Increase ), either by having a Lender increase its Commitment then in effect (each an
Increasing Lender ) or by adding as a Lender with a new Commitment hereunder a Person
which is not then a Lender (each an "Assuming Lender ), in each case with the approval of the
1023995v418445.00012
Administrative Agent (such approval not to be unreasonably withheld), which notice shall
specify the name of each Increasing Lender and/or Assuming Lender, as applicable, the amount
of the Commitment Increase and the portion thereof being assumed by each such Increasing
Lender or Assuming Lender, and the date on which such increase is to be effective (the
Commitment Increase Date ), which shall be a Business Day at least three (3) Business Days
after delivery of such notice; provided that no Lender shall have any obligation hereunder to
become an Increasing Lender and any election to do so shall be in the sole discretion of each
Lender; provided further that: (i) any such request for a Commitment Increase shall be in a
minimum amount of $25 000 000 or a higher integral multiple of $1 000 000; (ii) immediately
after giving effect to any Commitment Increase, the Aggregate Commitment shall not exceed
$450 000 000; (iii) no Default or Unmatured Default shall have occurred, and be continuing on
the applicable Commitment Increase Date or shall result from any Commitment Increase; and
(iv) the representations and warranties contained in Article 5 (other than in Section 5.5) shall be
true on and as of the Commitment Increase Date as if made on and as of such date (or, if any
such representation and warranty is expressly stated to have been made as of a specified date, as
of such specific date).
(b) Each Commitment Increase (and the increase of the Commitment of each
Increasing Lender and/or the new Commitment of each Assuming Lender, as applicable
resulting therefrom) shall become effective as of the Commitment Increase Date; provided that:
(i) the Administrative Agent shall have received on or prior to 10:00 a.m. on such Commitment
Increase Date a certificate of an Authorized Officer stating that each of the applicable conditions
to such Commitment Increase set forth in Section 2.20(a) has been satisfied and attaching the
resolutions adopted by the Borrower approving or consenting to such Commitment Increase; (ii)
with respect to each Assuming Lender, the Administrative Agent shall have received, on or prior
to 10:00 a.m. on such Commitment Increase Date, a Joinder Agreement among the Assuming
Lender, the Borrower and the Administrative Agent; and (iii) each Increasing Lender shall have
delivered to the Administrative Agent, on or prior to 10:00 a.m. on such Commitment Increase
Date, confirmation in writing satisfactory to the Administrative Agent as to its increased
Commitment, with a copy of such confirmation to the Borrower.
(c) On each Commitment Increase Date upon such time as the applicable conditions
set forth in Section 2.20(a) and 2.20(b) have been satisfied, the Borrower shall (i) prepay the
then outstanding Advances (if any) in full prior to giving effect to such Commitment Increase
(ii) if the Borrower shall so request, request new Advances from the Lenders (including any
Assuming Lender) in an aggregate amount at least equal to such prepayment, so that, after giving
effect thereto, the Advances are held ratably by the Lenders in accordance with their respective
Commitments (after giving effect to such Commitment Increase) and (iii) pay to the Lenders any
funding indemnification amounts required by Section 3.4.
Extension of Facilitv Termination Date
(a) So long as no Unmatured Default or Default has occurred and is continuing and
subject to the conditions set forth in Section 2.21(c), the Borrower may, no earlier than sixty (60)
days and no later than thirty (30) days prior to each anniversary of the Closing Date (such
anniversary, an "Extension Date ) request through written notice to the Administrative Agent
(the "Extension Notice ), that the Lenders extend the then existing Facility Termination Date for
1O23995v418445,00012
an additional one-year period. Each Lender, acting in its sole discretion, shall, by notice to the
Administrative Agent no later than the applicable Extension Date (except in the year in which
the then existing Facility Termination Date shall occur, in which case such written notice shall be
delivered by the Lenders no later than fifteen (15) days prior to the then existing Facility
Termination Date) (such date, the "Consent Date ), advise the Administrative Agent in writing
of its desire to extend (any such Lender, a "Consenting Lender ) or not to so extend (any such
Lender, a "Non-Consenting Lender ) such date. Any Lender that does not advise the
Administrative Agent by the Consent Date shall be deemed to be a Non-Consenting Lender. No
Lender shall be under any obligation or commitment to extend the then existing Facility
Termination Date. The election of any Lender to agree to such extension shall not obligate any
other Lender to agree to such extension.
(b) If Lenders holding Commitments that aggregate more than 50% of the Aggregate
Commitments on the Consent Date shall have agreed to such extension, then the then existing
Facility Termination Date applicable to the Consenting Lenders shall be extended to the date that
is one (1) year after the then existing Facility Termination Date. All Advances of each Non-
Consenting Lender shall be subject to the then existing Facility Termination Date, without giving
effect to such extension (such date, the "Prior Termination Date ). In the event of an extension
of the then existing Facility Termination Date pursuant to this Section 2.the Borrower shall
have the right, at its own expense, to solicit commitments from existing Lenders and/or other
banks or financial institutions reasonably acceptable to the Administrative Agent and the LC
Issuing Bank (each, an "Eligible Replacement Lender ) to replace the Commitment of any Non-
Consenting Lenders for the remaining duration of this Agreement. Any Eligible Replacement
Lender (if not already a Lender hereunder) shall become a party to this Agreement as a Lender
by delivering an executed Joinder Agreement to the Administrative Agent and the Borrower.
The Commitment of each Non-Consenting Lender shall terminate on the Prior Termination Date
all Advances and other amounts payable hereunder to such Non-Consenting Lenders shall be
subject to the Prior Termination Date and, to the extent such Non-Consenting Lender
Commitment is not replaced as provided above, the Commitments hereunder shall be reduced by
the amount of the Commitment of each such Non-Consenting Lender so terminated on the Prior
Termination Date. Notwithstanding anything to the contrary in this Section 2.the Facility
Termination Date shall not be extended unless the aggregate Commitments of the Consenting
Lenders and any Eligible Replacement Lenders joining this Agreement pursuant to this Section
21(b) are greater than or equal to the Aggregate Outstanding Credit Exposure as of each Prior
Termination Date.
(c) An extension ofthe Facility Termination Date pursuant to this Section 2.21 shall
only become effective upon the receipt by the Administrative Agent of a certificate (the
statements contained in which shall be true) of a duly authorized officer of the Borrower stating
that both before and after giving effect to such extension of the Facility Termination Date (i) no
Event of Default has occurred and is continuing and (ii) all representations and warranties
contained in Article 5 are true and correct in all material respects on and as of the date such
extension is made, except for such representations or warranties which by their terms are made
as of a specified date, which shall be true and correct as of such specified date.
(d) Effective on and after the Prior Termination Date, (i) each of the Non-Consenting
Lenders shall be automatically released from their respective LC Obligations and (ii) the LC
1O23995v418445,00012
Obligations of each Lender (other than the Non-Consenting Lenders) shall be automatically
adjusted to equal such Lender s Pro Rata Share of such LC Obligations.
ARTICLE 3
YIELD PROTECTION; TAXES
Yield Protection. If, on or after the Closing Date, the adoption of any law or any
governmental or quasi governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law), or any change in the interpretation or administration thereof by any
governmental or quasi-governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Lender or applicable Lending
Installation or any LC Issuer with any request or directive (whether or not having the force of
law) of any such authority, central bank or comparable agency:
(i) subjects any Lender or any applicable Lending Installation or any LC
Issuer to any Taxes, or changes the basis of taxation of payments (other than with respect
to Excluded Taxes or to any increased costs from taxes which will be governed
exclusively by Section 3.5) to any Lender or any LC Issuer in respect of its Eurodollar
Advances, LIBOR Market Index Rate Advances, Facility LCs or participations therein, or
(ii) imposes or increases or deems applicable any reserve, assessment
insurance charge, special deposit or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Lender or any applicable Lending
Installation or any LC Issuer (other than reserves and assessments taken into account in
determining the interest rate applicable to Eurodollar Advances), or
(iii) imposes any other condition the result of which is to increase the cost to
any Lender (or any applicable Lending Installation), the Swingline Lender or any LC
Issuer of making, funding or maintaining its Eurodollar Advances or LIBOR Market
Index Rate Advances, or of issuing and participating in any Swingline Loan or Facility
, or reduces any amount receivable by any Lender (or any applicable Lending
Installation), the Swingline Lender or any LC Issuer in connection with its Eurodollar
Advances, LIBOR Market Index Rate Advances, Facility LCs or participations therein, or
requires any Lender (or any applicable Lending Installation), Swingline Lender or any
LC Issuer to make any payment calculated by reference to the amount of Eurodollar
Advances, LIBOR Market Index Rate Advances, 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 or applicable Lending
Installation, Swingline Lender or such LC Issuer, as the case may be, of making or maintaining
its Eurodollar Advances or LIBOR Market Index Rate Advances, or of issuing or participating in
Swingline Loans or Facility LCs, or to reduce the return received by such Lender or applicable
Lending Installation, Swing line Lender or such LC Issuer, as the case may be, in connection with
such Eurodollar Advances, LIBOR Market Index Rate Advances, Facility LCs or participations
therein, then, within fifteen (15) days of demand by such Lender, Swingline Lender or LC Issuer
1023995v4 18445,00012
as the case may be, the Borrower shall pay such Lender, Swingline Lender or LC Issuer, as the
case may be, such additional amount or amounts as will compensate such Lender, Swingline
Lender or LC Issuer for such increased cost or reduction in amount received.
Changes in Capital Adequacv Regulations . If a Lender, Swingline Lender or any
LC Issuer determines the amount of capital required or expected to be maintained by such
Lender, Swingline Lender or such LC Issuer, any Lending Installation of such Lender, Swingline
Lender or such LC Issuer, or any corporation controlling such Lender, Swingline Lender or such
LC Issuer is increased as a result of a Change, then, within fifteen (15) days of demand by such
Lender, Swingline Lender or such LC Issuer, the Borrower shall pay such Lender, Swingline
Lender or such 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, Swing line Lender or such LC
Issuer determines is attributable to this Agreement, its Outstanding Credit Exposure or its
Commitment to make Loans and issue or participate in Swingline Loans and Facility LCs, as the
case may be, hereunder (after taking into account such Lender , Swingline Lender s or LC
Issuer s policies as to capital adequacy). "Change" means (i) any change after the Closing Date
in the Risk-Based Capital Guidelines, or (ii) any adoption of or change in any other law
governmental or quasi governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the Closing Date which affects the
amount of capital required or expected to be maintained by any Lender, Swingline Lender or any
LC Issuer or any Lending Installation or any corporation controlling any Lender, Swingline
Lender or any LC Issuer. "Risk-Based Capital Guidelines" means (i) the risk based capital
guidelines in effect in the United States on the Closing Date, including transition rules, and (ii)
the corresponding capital regulations promulgated by regulatory authorities outside the United
States implementing the July 1988 report of the Basle Committee on Banking Regulation and
Supervisory Practices Entitled "International Convergence of Capital Measurements and Capital
Standards " including transition rules, and any amendments to such regulations adopted prior tothe Closing Date.
A vailabilitv of Types of Advances. If any Lender determines that maintenance of
its Eurodollar Advances at a suitable Lending Installation would violate any applicable law, rule
regulation, or directive, whether or not having the force of law, or if the Required Lenders
determine that (i) deposits of a type and maturity appropriate to match fund Eurodollar Advances
are not available or (ii) the interest rate applicable to Eurodollar Advances does not accurately
reflect the cost of making or maintaining Eurodollar Advances, then the Administrative Agent
shall suspend the availability of Eurodollar Advances and require any affected Eurodollar
Advances to be repaid or converted to Floating Rate Advances, subject to the payment of any
funding indemnification amounts required by Section 3.4.
3.4 Funding Indemnification.If any payment of a Eurodollar Advance occurs on a
date which is not the last day of the applicable Interest Period, whether because of acceleration
prepayment or otherwise, or a Eurodollar Advance is not made on the date specified by the
Borrower for any reason other than default by the Lenders, the Borrower will indemnify each
Lender for any loss or cost incurred by it resulting therefrom, including any loss or cost in
liquidating or employing deposits acquired to fund or maintain such Eurodollar Advance.
1O23995v418445,00012
Taxes
(a) All payments by the Borrower to or for the account of any Lender, any LC Issuer
or the Administrative Agent hereunder or under any Note shall be made free and clear of and
without deduction for any and all Taxes. If the Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder to any Lender, any 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, such 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 thirty (30) days after such payment is made.
(b) In addition, the Borrower hereby agrees to pay any present or future stamp or
documentary taxes and any other excise or property taxes, charges or similar levies which arise
from any payment made hereunder or under any Note or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or any Note ("Other Taxes
(c) The Borrower hereby agrees to indemnify the Administrative Agent and each
Lender for the full amount of Taxes or Other Taxes (including any Taxes or Other Taxes
imposed on amounts payable under this Section 3.5) paid by the Administrative Agent or such
Lender and any liability (including penalties, interest and expenses provided that the
Administrative Agent and the Lenders shall use best efforts to avoid incurrence of the same)
arising therefrom or with respect thereto. Payments due under this indemnification shall be
made within thirty (30) days of the date the Administrative Agent or such Lender makes demand
therefor pursuant to Section 3.
(d) Each Lender (or Transferee) that is organized under the laws of a jurisdiction
other than the United States, any State thereof or the District of Columbia (a "Non-US.
Lender ) that is entitled to an exemption from or reduction of withholding tax under the law of
the jurisdiction in which the Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other Loan Document
shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by the Borrower or the Administrative
Agent, such properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate of withholding.
In addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver
such other documentation prescribed by applicable law or reasonably requested by the Borrower
or the Administrative Agent as will enable the Borrower or the Administrative Agent to
determine whether or not such Lender is subject to backup withholding or information reporting
requirements.
Without limiting the generality of the foregoing, in the event that the Borrower is resident
for tax purposes in the United States of America, any Non-US. Lender shall deliver to the
Borrower and the Administrative Agent (in such number of copies as shall be requested by the
1023995v418445,00012
recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the request of the Borrower or the
Administrative Agent, but only if such Non-U.S. Lender is legally entitled to do so), whichever
of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the United States of
America is a party,
(ii)duly completed copies of Internal Revenue Service Form W-8ECI
(iii)duly completed copies ofInternal Revenue Service Form W-8IMY
(iv) with respect to clauses (i) - (iii), any subsequent versions thereof or
successors thereto, in each case claiming complete exemption from, or reduced rate of
u.s. Federal withholding tax and payments of interest hereunder
(v) in the case of a Non-u.S. Lender claiming the benefits ofthe exemption
for portfolio interest under section 871(h) or 881(c) of the Code, (x) a certificate to the
effect that such Non-US. Lender is not (A) a "bank" for purposes of section 881(c) of
the Code, (B) a "10-percent shareholder" (within the meaning of section 871 (h)(3)(B) of
the Code) of the Borrower (or any Affiliate thereof) and (C) a "controlled foreign
corporation" related to the Borrower or any Affiliate thereof (within the meaning of
section 864(d)(4) of the Code), and such Non-US. Lender agrees that it shall promptly
notify the Borrower in the event any of the above representations are no longer accurate
and (y) duly completed copies ofInternal Revenue Service Form W-8BEN, or
(vi) any other form prescribed by applicable law as a basis for claiming
exemption from or a reduction in United States Federal withholding tax duly completed
together with such supplementary documentation as may be prescribed by applicable law
to permit the Borrower to determine the withholding or deduction required to be made.
(e) For any period during which a Non-US. Lender has failed to provide the
Borrower with an appropriate form pursuant to Section 3.5(d) (unless such failure is due to a
change in treaty, law or regulation, or any change in the interpretation or administration thereof
by any governmental authority, occurring subsequent to the date on which a form originally was
required to be provided) or Section 3.5(f), such Lender shall not be entitled to indemnification
under this Section 3.5 with respect to Taxes; provided that, should a Non-US. Lender which is
otherwise exempt from or subject to a reduced rate of withholding tax become subject to Taxes
because of its failure to deliver a form required under Section 3.5( d), the Borrower shall take
such commercially-reasonable steps (at the cost of the Non-S. Lender) as such Non-US.
Lender shall reasonably request to assist such Non-US. Lender to recover such Taxes.
(f) Any Lender that is entitled to an exemption from or reduction of withholding tax
with respect to payments under this Agreement or any Note pursuant to the law of any relevant
jurisdiction or any treaty shall deliver to the Borrower (with a copy to the Administrative Agent),
at the time or times prescribed by applicable law, such properly completed and executed
1O23995v418445,00012
documentation prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate.
(g)
If the u.s. Internal Revenue Service or any other governmental authority of the
United States or any other country or any political subdivision thereof asserts a claim that the
Administrative Agent did not properly withhold tax from amounts paid to or for the account of
any Lender (because the appropriate form was not delivered or properly completed, because such
Lender failed to notify the Administrative Agent of a change in circumstances which rendered its
exemption from withholding ineffective, or for any other reason), such Lender shall indemnify
the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative
Agent as tax, withholding therefor, or otherwise, including penalties and interest, and including
taxes imposed by any jurisdiction on amounts payable to the Administrative Agent under this
subsection, together with all costs and expenses related thereto (including attorneys fees and time
charges of attorneys for the Administrative Agent, which attorneys may be employees of the
Administrative Agent) and the Borrower shall have no liability pursuant to this Agreement to the
Administrative Agent with respect to such amounts. The obligations of the Lenders under this
Section 3.5(g) shall survive the payment of the Obligations and termination of this Agreement.
(h) Any Lender or Administrative Agent claiming any indemnity payment or
additional payment amounts payable pursuant to this Section 3.5 shall use reasonable effOlis
(consistent with legal and regulatory restrictions and at the cost ofthe Borrower) to file any
certificate or document reasonably requested in writing by the Borrower or to change the
jurisdiction of its applicable lending office if the making of such a filing or change (1) would
avoid the need for or reduce the amount of any such indemnity payment or additional amount
that may thereafter accrue, (2) would not require such Lender or the Agent to disclose any
information such Lender or the Administrative Agent deems confidential and (3) would not
subject such Lender or the Administrative Agent to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender or the Administrative Agent.
(i) Each Lender will promptly notify the Borrower and the Administrative Agent of
any event of which it has knowledge, occurring after the date of this Agreement, which will
entitle such Lender to compensation pursuant to this Section 3.5; provided that (i) if any Lender
fails to give such notice within 180 days after it obtains actual knowledge of such event (or, in
the exercise of ordinary due diligence, should have obtained actual knowledge thereof), such
Lender shall only be entitled to payments under this Section 3.5 for costs incurred from and after
the date 180 days prior to the date that such Lender does give such notice.
Alternate Lending Installation; Lender Statements; Survival ofIndemnity. To the
extent reasonably possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Advances to reduce any liability of the Borrower to such Lender under
Sections 3., 3.2 and 3.5 or to avoid the unavailability of Eurodollar Advances under
Section 3.3, so long as such designation is not, in the judgment of such Lender, disadvantageous
to such Lender. Each Lender shall deliver a written statement of such Lender to the Borrower
(with a copy to the Administrative Agent) as to the amount due, if any, under Sections 3., 3.
3.4 or 3.5. Such written statement shall set forth in reasonable detail the calculations upon which
such Lender determined such amount and shall be final, conclusive and binding on the Borrower
in the absence of manifest error. Determination of amounts payable under such Sections in
1O23995v418445,00012
connection with a Eurodollar Advance shall be calculated as though each Lender funded its
Eurodollar Advance through the purchase of a deposit of the type and maturity corresponding to
the deposit used as a reference in determining the Eurodollar Rate applicable to such Revolving
Loan, whether in fact that is the case or not. Unless otherwise provided herein, the amount
specified in the written statement of any Lender shall be payable on demand after receipt by the
Borrower of such written statement. The obligations of the Borrower under Sections 3., 3.
3.4 and 3.5 shall survive payment of the Obligations and termination of this Agreement.
ARTICLE 4
CONDITIONS PRECEDENT
Initial Credit Extension. The Lenders and the LC Issuers shall not be required to
make an initial Credit Extension hereunder unless the Borrower has furnished to the
Administrative Agent sufficient copies for the Lenders of:
(i) Copies of the articles or certificate of incorporation of the Borrower
together with all amendments, and a certificate of good standing, each certified by the
appropriate governmental officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of the Borrower
of its bylaws and of its Board of Directors' resolutions and of resolutions or actions of
any other body authorizing the execution of the Loan Documents.
(iii) An incumbency certificate, executed by the Secretary or Assistant
Secretary of the Borrower, which shall identify by name and title and bear the signatures
of the Authorized Officers and any other officers of the Borrower authorized to sign the
Loan Documents, upon which certificate the Administrative Agent and the Lenders shall
be entitled to rely until informed of any change in writing by the Borrower.
(iv) A certificate, signed by an Authorized Officer, stating that on the initial
Credit Extension Date no Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of the Borrower s counsel, addressed to the
Administrative Agent, the Lenders, and the LC Issuers, dated as of the Closing Date, in
substantially the form of Exhibit A.
(vi) Any Notes requested by a Lender pursuant to Section 2.12 payable to the
order of each such requesting Lender.
(vii) Written money transfer instructions, in substantially the form of
Exhibit addressed to the Administrative Agent and signed by an Authorized Officer
together with such other related money transfer authorizations as the Administrative
Agent may have reasonably requested.
(viii)
requested.
Such other documents as any Lender or its counsel may have reasonably
1O23995v418445,00012
4.2 Each Credit Extension. The obligation of each Lender to make any Credit
Extension hereunder, including the initial Credit Extension (but excluding Revolving Loans
made for the purpose of repaying Refunded Swingline Loans pursuant to Section 2.7( c) or for
the purpose of paying unpaid reimbursement obligations of the Borrower pursuant to Section
18(e)), is subject to the satisfaction of the following conditions precedent on the applicable
Credit Extension Date:
(i)No Default or Unmatured Default exists.
(ii) The representations and warranties contained in Article 5 (other than
after the Closing Date, in Section 5.5) 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.
(iii) All legal matters incident to the making of such Credit Extension shall be
satisfactory to the Lenders and their counsel.
Each Borrowing Notice, Swingline Borrowing Notice or request for issuance of a Facility
LC with respect to each such Credit Extension shall constitute a representation and warranty by
the Borrower that the conditions contained in Sections 4.2(i) and (ii) have been satisfied. Any
Lender may require a duly completed compliance certificate in substantially the form of
Exhibit B as a condition to making a Credit Extension.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
Existence and Standing . Each of the Borrower and its Subsidiaries is a
corporation, partnership (in the case of Subsidiaries only) or limited liability company duly and
properly incorporated or organized, as the case may be, validly existing and (to the extent such
concept applies to such entity) in good standing under the laws of its jurisdiction of incorporation
or organization and has all requisite authority to conduct its business in each jurisdiction in
which its business is conducted, except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect.
Authorization and Validity. The Borrower has the power and authority and legal
right to execute and deliver the Loan Documents and to perform its obligations thereunder. The
execution and delivery by the Borrower of the Loan Documents and the performance of its
obligations thereunder have been duly authorized by proper corporate proceedings, and the Loan
Documents constitute legal, valid and binding obligations of the Borrower enforceable against
the Borrower in accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally.
1O23995v418445,00012
No Conflict: Government Consent.Neither the execution and delivery by the
Borrower of the Loan Documents, nor the consummation of the transactions therein
contemplated, nor compliance with the provisions thereof will violate, except to the extent that
such violation, alone or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect, (i) any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Borrower or any of its Subsidiaries or (ii) the Borrower s or any Subsidiary
articles or certificate of incorporation, partnership agreement, certificate of partnership, articles
or certificate of organization, bylaws, or operating or other management agreement, as the case
may be, or (iii) the provisions of any indenture, instrument or agreement to which the Borrower
or any of its Subsidiaries is a party or is subject, or by which it, or its Property, is bound, or
conflict with or constitute a default thereunder, or result in, or require, the creation or imposition
of any Lien in, of or on the Property of the Borrower or a Subsidiary pursuant to the terms of any
such indenture, instrument or agreement. No order, consent, adjudication, approval, license
authorization, or validation of, or filing, recording or registration with, or exemption by, or other
action in respect of any governmental or public body or authority, or any subdivision thereof
which has not been obtained by the Borrower or any of its Subsidiaries, is required to be
obtained by the Borrower or any of its Subsidiaries in connection with the execution and delivery
of the Loan Documents, the borrowings under this Agreement, the payment and performance by
the Borrower of the Obligations or the legality, validity, binding effect or enforceability of any of
the Loan Documents.
5.4 Financial Statements.The December 31 , 2006 consolidated financial statements
of the Borrower and its Subsidiaries heretofore delivered to the Lenders were prepared in
accordance with the Agreement Accounting Principles in effect on the date such statements were
prepared and fairly present the consolidated financial condition and operations of the Borrower
and its Subsidiaries at such date and the consolidated results oftheir operations for the period
then ended.
Material Adverse Change. Since December 31 , 2006, there has been no change in
the business, Property, condition (financial or otherwise) or results of operations of the Borrower
and its Subsidiaries which could reasonably be expected to have a Material Adverse Effect.
Taxes . The Borrower and its Subsidiaries have filed all material United States
federal tax returns and all other tax returns which are required to be filed and have paid all taxes
due pursuant to said returns or pursuant to any assessment received by the Borrower or any of its
Subsidiaries, except such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided in accordance with Agreement Accounting Principles. No
tax liens have been filed and no claims are being asserted with respect to any such taxes claimed
to be due and payable that would, if adversely determined, have a Material Adverse Effect. The
charges, accruals and reserves for taxes on the books of the Borrower and its Subsidiaries (to the
extent in excess of $5 000 000) are adequate under Agreement Accounting Principles.
Notwithstanding any provision in this Agreement to the contrary, the only representations and
warranties made by the Borrower with respect to matters relating to taxes shall be the
representations and warranties set forth in this Section Error! Reference source not found., and
this Agreement shall not be interpreted in any manner that is contrary hereto.
1O23995v418445.00012
Litigation and Contingent Obligations.Except as set forth in the most recent
consolidated financial statements provided to the Administrative Agent pursuant to Section 5.4
or Section 6.respectively, there is no litigation, arbitration, governmental investigation
proceeding or inquiry pending or, to the knowledge of any of their officers, threatened against or
affecting the Borrower or any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect or which seeks to prevent, enjoin or delay the making of any Credit
Extensions. Other than any liability incident to any litigation, arbitration or proceeding, which, if
decided adversely, would not reasonably be expected to have a Material Adverse Effect, the
Borrower has no material contingent liabilities or obligations not provided for or disclosed in the
most recent consolidated financial statements provided to the Administrative Agent pursuant to
Section 5.4 or Section 6.respectively.
Subsidiaries Schedule 5.contains an accurate list of all Subsidiaries of the
Borrower as of the Closing Date, setting forth their respective jurisdictions of organization and
the percentage of their respective capital stock or other ownership interests owned by the
Borrower or other Subsidiaries. All of the issued and outstanding shares of capital stock or other
ownership interests of such Subsidiaries have been (to the extent such concepts are relevant with
respect to such ownership interests) duly authorized and issued and are fully paid and
nonassessable.
9. ERISA . The Unfunded Liabilities of all Single Employer Plans do not in the
aggregate exceed $75 000 000. Neither the Borrower nor any other member of the Controlled
Group has incurred, or is reasonably expected to incur, any withdrawal liability to
Multiemployer Plans in excess of $25 000 000 in the aggregate. Each Plan complies in all
material respects with all applicable requirements of law and regulations, no Reportable Event
has occurred with respect to any Plan, neither the Borrower nor any other member of the
Controlled Group has withdrawn from any Plan or initiated steps to do so, and no steps have
been taken to reorganize or terminate any Plan.
10 Accuracy of Information. No information, exhibit or report furnished by the
Borrower or any of its Subsidiaries to the Administrative Agent, the Joint Lead Arrangers or to
any Lender in connection with the negotiation of, or compliance with, the Loan Documents
contained any material misstatement of fact or omitted to state a material fact or any fact
necessary to make the statements contained therein not misleading.
11 Regulation U. Margin stock (as defined in Regulation U) constitutes less than
25% of the value of those assets of the Borrower and its Subsidiaries which are subject to any
limitation on sale, pledge, or other restriction hereunder.
5.12 Material Agreements.Except as set forth in Schedule 5.neither the Borrower
nor any Subsidiary is a party to any agreement or instrument or subject to any charter or other
corporate restriction (a) which either prohibits or restricts the ability of any Subsidiary of
Borrower to declare or pay dividends to the Borrower, or (b) which could reasonably be expected
to have a Material Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or conditions
contained in (i) any agreement to which it is a party, which default could reasonably be expected
to have a Material Adverse Effect or (ii) any agreement or instrument evidencing or governing
1023995v418445,00012
Material Indebtedness, which default could reasonably be expected to have a Material Adverse
Effect.
13 Compliance With Laws.The Borrower and its Subsidiaries have complied with
all applicable statutes, rules, regulations, orders and restrictions of any domestic or foreign
government or any instrumentality or agency thereof having jurisdiction over the conduct of their
respective businesses or the ownership of their respective Property except for any failure to
comply with any of the foregoing which could not reasonably be expected to have a Material
Adverse Effect.
14 Ownership of Properties . Except as set forth on Schedule 5.as of the Closing
Date, the Borrower and its Subsidiaries will have good title, free of all Liens other than those
permitted by Section 6.to all of the Property and assets reflected in the Borrower s most
recent consolidated financial statements provided to the Administrative Agent as owned by the
Borrower and its Subsidiaries.
15 Plan Assets~ Prohibited Transactions. The Borrower is not an entity deemed to
hold "plan assets" within the meaning of 29 C.R. 9 2510.101 of an employee benefit plan (as
defined in Section 3(3) of ERISA) which is subject to Title I of ERISA or any plan (within the
meaning of Section 4975 of the Code), and neither the execution of this Agreement nor the
making of Credit Extensions hereunder gives rise to a prohibited transaction within the meaning
of Section 406 of ERISA or Section 4975 of the Code.
16 Environmental Matters. In the ordinary course of its business, the Borrower
considers the effect of Environmental Laws on the business of the Borrower and its Subsidiaries
in the course of which it identifies and evaluates potential risks and liabilities accruing to the
Borrower due to Environmental Laws. On the basis of this consideration, the Borrower has
concluded that the potential risks and liabilities accruing to the Borrower due to Environmental
Laws could not reasonably be expected to have a Material Adverse Effect. Neither the Borrower
nor any Subsidiary has received any notice to the effect that its operations are not in material
compliance with any of the requirements of applicable Environmental Laws or are the subject of
any federal or state investigation evaluating whether any remedial action is needed to respond to
a release of any toxic or hazardous waste or substance into the environment, which
noncompliance or remedial action could reasonably be expected to have a Material Adverse
Effect.
5.17 Investment Company Act.The Borrower is not an "investment company" or a
company "controlled" by an "investment company , within the meaning of the Investment
Company Act of 1940.
5.18 OFAC~ PATRIOT Act.
(a) Neither the Borrower or any of its Subsidiaries is a Sanctioned Person or does
business in a Sanctioned Country or with a Sanctioned Person in violation of the economic
sanctions of the United States administered by OFAC.
(b) Each of the Borrower and its Subsidiaries is in compliance in all material respects
with the PATRIOT Act. No part of the proceeds of the Loans hereunder will be used, directly or
1O23995v418445,00012
indirectly, for any payments to any governmental official or employee, political party, official of
a political party, candidate for political office, or anyone else acting in an official capacity, in
order to obtain, retain or direct business or obtain any improper advantage, in violation of the
United States Foreign Corrupt Practices Act of 1977, as amended.
ARTICLE 6
COVENANTS
During the term of this Agreement, unless the Required Lenders shall otherwise consent
in writing:
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary,
a system of accounting established and administered in accordance with the Agreement
Accounting Principles, and furnish to the Administrative Agent in sufficient copies for each of
the Lenders:
(i) Within one hundred twenty (120) days after the close of each of its fiscal
years (or, if earlier, within thirty (30) days after the Borrower is required to file its
Annual RepOli on Form 10-K with the Securities and Exchange Commission for such
fiscal year), an unqualified (except for qualifications relating to changes in Agreement
Accounting Principles or practices reflecting changes in Agreement Accounting
Principles and required or approved by the Borrower s independent certified public
accountants) audit report certified by independent certified public accountants reasonably
acceptable to the Lenders, prepared in accordance with the Agreement Accounting
Principles on a consolidated and consolidating basis (consolidating statements need not
be certified by such accountants) for itself and its Subsidiaries, including balance sheets
as of the end of such period, related profit and loss and reconciliation of surplus
statements, and a statement of cash flows. Delivery by the Borrower to the
Administrative Agent of copies of the Parent's Annual Report on Form 10-K filed with
the Securities and Exchange Commission for any year shall satisfy the Borrower
obligation under this clause (i) with respect to such year.
(ii) Within sixty (60) days after the close of the first three quarterly period of
each of its fiscal years (or, if earlier, within fifteen (15) days after the Borrower is
required to file its Quarterly Report on Form 10-Q for with the Securities and Exchange
Commission for such period), consolidated and consolidating unaudited balance sheets as
at the close of each the first three quarterly periods of each of its fiscal years, for itself
and its Subsidiaries and consolidated and consolidating profit and loss and reconciliation
of surplus statements and a statement of cash flows for the period from the beginning of
such fiscal year to the end of such quarter, all certified by an Authorized Officer.
Delivery by the Borrower to the Administrative Agent of copies of the Borrower
Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission for
any quarter shall satisfy the Borrower s obligation under the clause (ii) with respect to
such quarter.
1023995v4 18445.00012
(iii) Together with the financial statements required under Sections 6.1(i) and
(ii), (A) a compliance certificate in substantially the form of Exhibit B signed by an
Authorized Officer showing the calculations necessary to determine compliance with this
Agreement and stating that no Default or Unmatured Default exists, or if any Default or
Unmatured Default exists, stating the nature and status thereof and (B) a calculation of
the Indebtedness secured by Liens permitted under Section 6.11(xiii) in such form as is
reasonably satisfactory to the Administrative Agent.
(iv) As soon as possible and in any event within ten (10) days after the
Borrower knows that any Reportable Event has occurred with respect to any Plan, a
statement, signed by an Authorized Officer, describing said Reportable Event and the
action which the Borrower proposes to take with respect thereto.
(v) As soon as possible and in any event within ten (10) days after receipt by
the Borrower, a copy of (a) any notice or claim to the effect that the Borrower or any of
its Subsidiaries is or may be liable to any Person as a result of the release by the
Borrower, any of its Subsidiaries, or any other Person of any toxic or hazardous waste or
substance into the environment, and (b) any notice alleging any violation of any federal
state or local environmental, health or safety law or regulation by the Borrower or any of
its Subsidiaries, which, in either case, could reasonably be expected to have a Material
Adverse Effect.
(vi) Promptly upon the furnishing thereof to the shareholders of the Borrower
copies of all financial statements and reports so furnished.
(vii) Promptly upon the filing thereof, copies of all registration statements and
annual, quarterly, monthly or other regular reports which the Borrower or any of its
Subsidiaries files with the Securities and Exchange Commission.
(viii) Such other information (including nonfinancial information) as the
Administrative Agent or any Lender may from time to time reasonably request.
Use of Proceeds. The Borrower will, and will cause each Subsidiary to, use the
proceeds of the Credit Extensions for general corporate purposes and commercial paper back-up.
Notice of Default, etc. The Borrower will, and will cause each Subsidiary to, give
prompt notice in writing to the Lenders of the occurrence of (i) any Default or Unmatured
Default and (ii) the commencement of or any ruling in any litigation, or any other development
financial or otherwise, which could reasonably be expected to have a Material Adverse Effect.
6.4 Conduct of Business. The Borrower will, and will cause each Material Subsidiary
, carryon and conduct its business in substantially the same manner and in substantially the
same fields of enterprise as it is presently conducted and do all things necessary to remain duly
incorporated or organized, validly existing and (to the extent such concept applies to such entity)
in good standing as a domestic corporation, partnership or limited liability company in its
jurisdiction of incorporation or organization, as the case may be, and maintain all requisite
authority to conduct its business in each jurisdiction in which its business is conducted, except
where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
1023995v418445,00012
Taxes. The Borrower will, and will cause each Subsidiary to, timely file complete
and correct United States federal and applicable foreign, state and local tax returns required by
law and pay when due all taxes, assessments and governmental charges and levies upon it or its
income, profits or Property, except those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside in accordance with
Agreement Accounting Principles.
Insurance. The Borrower will, and will cause each Subsidiary to, maintain with
financially sound and reputable insurance companies insurance on all their Property in such
amounts and covering such risks as is consistent with sound business practice, and the Borrower
will furnish to any Lender upon request full information as to the insurance carried.
Compliance with Laws.The Borrower will, and will cause each Subsidiary to
comply in all material respects with all laws, rules, regulations, orders, writs, judgments
injunctions, decrees or awards to which it may be subject including all Environmental Laws.
Maintenance of Properties . The Borrower will, and will cause each Subsidiary to
do all things necessary to maintain, preserve, protect and keep its Property in good repair
working order and condition, and make all necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith may be properly conducted
at all times.
Inspection. The Borrower will, and will cause each Subsidiary to, permit the
Administrative Agent and the Lenders, by their respective representatives and agents, to inspect
any of the Property, books and financial records of the Borrower and each Subsidiary, to
examine and make copies of the books of accounts and other financial records of the Borrower
and each Subsidiary, and to discuss the affairs, finances and accounts of the Borrower and each
Subsidiary with, and to be advised as to the same by, their respective officers at such reasonable
times and intervals as the Administrative Agent or any Lender may designate.
10 Merger and Sale of Assets. Without the prior written consent of the Required
Lenders (such consent not to be unreasonably withheld), the Borrower will not, nor will it permit
any Material Subsidiary to, merge or consolidate with or into any other Person, or sell or
otherwise dispose of all or substantially all of its Property to another Person except that (i) a
Material Subsidiary may merge into the Borrower or a Wholly-Owned Subsidiary, (ii) a Material
Subsidiary may dispose of all or substantially all of its Property to the Borrower or a Wholly-
Owned Subsidiary, or (iii) the Borrower or any Subsidiary may sell, transfer, contribute, convey
or dispose of accounts, general intangibles and/or chattel paper (each as defined in Article 9 of
the Uniform Commercial Code) and associated collateral, lockbox and other collection accounts
records and/or proceeds in connection with a Permitted Receivables Securitization.
11 Liens. The Borrower will not, nor will it permit any Material Subsidiary to
create, incur, or suffer to exist any Lien in, of or on the Property of the Borrower or any Material
Subsidiary, except:
(i) Liens for taxes, assessments or governmental charges or levies on its
Property if the same shall not at the time be delinquent or thereafter can be paid without
1O23995v418445,00012
penalty, or are being contested in good faith and by appropriate proceedings and for
which adequate reserves in accordance with Agreement Accounting Principles shall have
been set aside on its books;
(ii) Liens imposed by law, such as carriers , warehousemen s and mechanics
liens and other similar liens arising in the ordinary course of business which secure
payment of obligations not more than sixty (60) days past due or which are being
contested in good faith by appropriate proceedings and for which adequate reserves shall
have been set aside on its books;
(iii) Liens arising out of pledges or deposits under worker s compensation
laws, unemployment insurance, old age pensions, or other social security or retirement
benefits, or similar legislation;
(iv) Utility easements, building restrictions and such other encumbrances or
charges against real property as are of a nature generally existing with respect to
properties of a similar character and which do not in any material way affect the
marketability of the same or interfere with the use thereof in the business of the Borrower
or its Subsidiaries;
(v)Liens existing on the date hereof and described in Schedule 5.14;
(vi) Liens on Property of the Borrower or any of its Material Subsidiaries
created solely for the purpose of securing Indebtedness incurred to fund the purchase
price of Property, provided that no such Lien shall extend to or cover any other Property
of the Borrower or its Material Subsidiaries other than the Property so acquired and the
original principal amount of the Indebtedness so secured by any such Lien shall not
exceed the original purchase price of the Property so acquired;
(vii) The Lien of the First Mortgage and any Lien described in any deeds or
other instruments under which property has been conveyed to the Borrower and to which
the Lien of the First Mortgage is expressly made subject;
(viii) Any Lien existing on any property or asset prior to the Acquisition thereof
by the Borrower or any Material Subsidiary provided that the Acquisition is permitted
under Section 6.13 and such Lien is not created in contemplation of or in connection with
such Acquisition;
(ix)Liens arising under a Permitted Receivables Securitization;
(x) Liens arising by operation of law with respect to any deposit, securities
and commodity account; provided that (a) the right of the Borrower or the applicable
Material Subsidiary to withdraw assets from such account shall not be restricted other
than by customary rules of general application (such as restrictions on withdrawals during
the time required for a check to clear); and (b) such account is not intended by the
Borrower or any Material Subsidiary to provide collateral to the applicable depository
institution, securities intermediary or commodities intermediary;
1O23995v418445,00012
(xi)Liens in favor of the Administrative Agent hereunder;
(xii) Any Lien arising out of the refinancing, extension, or renewal of any
Indebtedness secured by any Lien permitted by clause (v) of this Section 6.11; provided
that such Indebtedness is not increased and is not secured by any additional assets; and
(xiii) (A) Liens incurred by the Borrower or the Parent in connection with Rate
Management Transactions entered into by either the Borrower or the Parent in the
ordinary course of business and not for speculation and in accordance with its established
risk management policies, and (B) other Liens incurred by the Borrower or the Parent in
the ordinary course of business provided that the aggregate principal amount of the
Indebtedness secured by the Liens permitted under this clause (xiii) shall not exceed
$50 000 000 at anyone time outstanding. The "principal amount" of the Indebtedness of
the Borrower or the Parent in respect of any Rate Management Obligation at any time
shall be the maximum aggregate amount (giving effect to any netting agreements) that
the Borrower or the Parent would be required to pay if such Rate Management Obligation
were terminated at such time of determination.
12 Leverage Ratio.The Borrower will not permit the ratio, determined as of the end
of each of its fiscal quarters, of (i) Consolidated Indebtedness to (ii) Consolidated Total
Capitalization to be greater than 0.65 to
13 Investments and Acquisitions. Without the prior written consent of the Required
Lenders (such consent not to be unreasonably withheld), the Borrower will not, nor will it permit
any Subsidiary to, make or suffer to exist any Investments (including loans and advances to, and
other Investments in, Subsidiaries, or commitments therefor, or to create any Subsidiary or to
become or remain a partner in any partnership or joint venture), or to make any Acquisition of
any Person, except:
(i) Cash Equivalent Investments and Investments permitted by the investment
policies approved from time to time by the board of directors of the Borrower or the
relevant Subsidiary, as applicable;
(ii) Investments in, and loans and advances to, Subsidiaries existing as of the
date hereof and other Investments existing as of the date hereof;
(iii) Investments by Subsidiaries in securities of the Borrower and Investments
by the Borrower and its Subsidiaries in any business trust controlled, directly or
indirectly, by the Borrower to the extent such business trust purchases securities of the
Borrower;
(iv) In addition to Investments otherwise permitted hereunder, Investments and
Acquisitions related to the energy business of the Borrower and its Subsidiaries made
after the date hereof in an aggregate amount not exceeding $750 000 000 at anyone time
outstanding; and
(v) Investments by the Borrower or a Subsidiary in connection with a
Permitted Receivables Securitization.
1023995v41844500012
6.14 Subsidiary Dividend Restrictions . The Borrower will not, nor will it permit any
Material Subsidiary to, become a party to any agreement prohibiting or restricting the ability of
such Material Subsidiary to declare or pay dividends to the Borrower, except as disclosed in
Schedule 5., other than prohibitions or restrictions in connection with a Permitted Receivables
Securitization.
6.15 Affiliates. The Borrower will not, and will not permit any Subsidiary to, enter
into any transaction (including the purchase or sale of any Property or service) with, or make any
payment or transfer to, any Affiliate that is not a Subsidiary except in the ordinary course of
business and pursuant to the reasonable requirements of the Borrower s or such Subsidiary
business and upon fair and reasonable terms no less favorable to the Borrower or such Subsidiary
than the Borrower or such Subsidiary would obtain in a comparable arms-length transaction.
6.16 OFAC. PATRIOT Act Compliance. The Borrower will, and will cause each of its
Subsidiaries to, (i) refrain from doing business in a Sanctioned Country or with a Sanctioned
Person in violation of the economic sanctions of the United States administered by OF AC, and
(ii) provide, to the extent commercially reasonable, such information and take such actions as are
reasonably requested by the Administrative Agent or any Lender in order to assist the
Administrative Agent and the Lenders in maintaining compliance with the PATRIOT Act.
ARTICLE 7
DEFAULTS
The occurrence of anyone or more of the following events shall constitute a Default:
(a) Any representation or warranty made (or deemed made pursuant to Section 4.
by or on behalf of the Borrower or any of its Subsidiaries to the Lenders or the Administrative
Agent under or in connection with this Agreement, any Credit Extension, or any report
certificate, financial statement or other information delivered in connection with this Agreement
or any other Loan Document shall be false in any material respect when so made, deemed made
or delivered.
(b) Nonpayment of principal of any Loan when due; nonpayment of any
Reimbursement Obligation within one Business Day after the same becomes due; or nonpayment
of interest on any Loan, any fee payable by the Borrower hereunder or any other obligation
under any of the Loan Documents within five (5) days after the same becomes due.
(c) The breach by the Borrower of any of the terms or provisions of Section 6.
3(i) (and (i) in the case of failure to deliver notice of a Default arising under Section 7(d), five
(5) days shall have elapsed after an Authorized Officer obtained knowledge of such Default and
(ii) in the case of failure to deliver notice of a Default arising under Section 7(e), twenty (20)
days shall have elapsed after an Authorized Officer obtained knowledge of such Default), 6.
, 6.12 or 6.13.
(d) The breach by the Borrower (other than a breach which constitutes a Default
under another Section of this Article 7) of any of the terms or provisions of Section 6.9 or 6.
1023995v4 18445.00012
which is not remedied within five (5) days after written notice from the Administrative Agent or
any Lender.
(e) The breach by the Borrower (other than a breach which constitutes a Default
under another Section of this Article 7) of any of the terms or provisions of this Agreement
which is not remedied within twenty (20) days after written notice from the Administrative
Agent or any Lender.
(f) Failure of the Borrower or any of its Subsidiaries to pay when due any Material
Indebtedness; or the default by the Borrower or any of its Subsidiaries in the performance of any
term, provision or condition contained in any agreement under which any such Material
Indebtedness was created or is governed, or any other event shall occur or condition exist, the
effect of which default or event is to cause, or to permit the holder or holders of such Material
Indebtedness to cause, such Material Indebtedness to become due prior to its stated maturity; or
any Material Indebtedness of the Borrower or any of its Subsidiaries shall be declared to be due
and payable or required to be prepaid or repurchased (other than by a regularly scheduled
payment) prior to the stated maturity thereof; or the Borrower or any of its Subsidiaries shall not
pay, or admit in writing its inability to pay, its debts generally as they become due.
(g)
The Borrower or any of its Material Subsidiaries shall (i) have an order for relief
entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii)
make an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in
the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or
any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief
under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a
bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization
arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (v) take any corporate or
partnership action to authorize or effect any of the foregoing actions set forth in this Section 7(g)
or (vi) fail to contest in good faith any appointment or proceeding described in Section 7(h).
(h) Without the application, approval or consent of the Borrower or any of its
Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for the
Borrower or any of its Material Subsidiaries or any Substantial Portion of its Property, or a
proceeding described in Section 7(g) shall be instituted against the Borrower or any of its
Material Subsidiaries and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of sixty (60) consecutive days.
(i) Any court, government or governmental agency shall condemn, seize or otherwise
appropriate, or take custody or control of (each, a Condemnation ), all or any pOliion of the
Property of the Borrower and its Subsidiaries which, when taken together with all other Property
of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or
control of, during the twelve-month period ending with the month in which any such action
occurs, constitutes a Substantial Portion; provided that the term "Condemnation" shall not
include any voluntary transfer by the Borrower or any of its Subsidiaries of its electronic
transmission line facilities, or any interest therein, to a regional independent grid operator.
1O23995v418445,00012
G) The Borrower or any of its Subsidiaries shall fail within thirty (30) days to pay,
bond or otherwise discharge one or more (i) judgments or orders for the payment of money in
excess of $25 000 000 (or the equivalent thereof in currencies other than U.S. Dollars) in the
aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, whichjudgment(s), in any such case
is/are not stayed on appeal or otherwise being appropriately contested in good faith.
(k) The Unfunded Liabilities of all Single Employer Plans shall exceed in the
aggregate $75 000 000 or any Reportable Event shall occur in connection with any Plan, or the
Borrower or any other member of the Controlled Group shall have been notified by the sponsor
of a Multiemployer Plan that it has incurred withdrawal liability to such Multiemployer Plan in
an amount which, when aggregated with all other amounts required to be paid to Multiemployer
Plans by the Borrower or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds $25 000 000.
(1) The Borrower or any of its Subsidiaries shall (i) be the subject of any proceeding
or investigation pertaining to the release by the Borrower, any of its Subsidiaries or any other
Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any
Environmental Law, which, in the case of an event described in clause (i) or clause (ii), could
reasonably be expected to have a Material Adverse Effect.
(m)Any Change in Control shall occur.
(n) The Parent shall cease to own, free and clear of all Liens, 100% of the outstanding
shares of voting stock of the Borrower.
ARTICLE 8
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration; Facility LC Collateral Account.
(a) If any Default described in Sections 7(g) or 7(h) occurs with respect to the
Borrower, the obligations of the Lenders to make Loans hereunder and the obligation and power
of the LC Issuers to issue Facility LCs shall automatically terminate and the Obligations shall
immediately become due and payable without any election or action on the part of the
Administrative Agent, any LC Issuer or any Lender and the Borrower will be and become
thereby unconditionally obligated, without any further notice, act or demand, to pay to the
Administrative Agent an amount in immediately available funds, which funds shall be held in the
Facility LC Collateral Account, equal to the difference of (x) the amount ofLC Obligations at
such time, less (y) the amount on deposit in the Facility LC Collateral Account at such time
which is free and clear of all rights and claims of third parties and has not been applied against
the Obligations (such difference, the "Collateral Shortfall Amount ). If any other Default
occurs, the Required Lenders (or the Administrative Agent with the consent of the Required
Lenders) may (a) terminate or suspend the obligations of the Lenders to make 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 the Obligations shall become immediately due and
1O23995v418445,00012
payable, without presentment, demand, protest or notice of any kind, all of which the Borrower
hereby expressly waives, and (b) upon notice to the Borrower and in addition to the continuing
right to demand payment of all amounts payable under this Agreement, make demand on the
Borrower to pay, and the Borrower will, forthwith upon such demand and without any further
notice or act, pay to the Administrative Agent the Collateral Shortfall Amount, which funds shall
be deposited in the Facility LC Collateral Account.
(b) If at any time while any Default is continuing, the Administrative Agent
determines that the Collateral Shortfall Amount at such time is greater than zero, the
Administrative Agent may make demand on the Borrower to pay, and the Borrower will
forthwith upon such demand and without any further notice or act, pay to the Administrative
Agent the Collateral Shortfall Amount, which funds shall be deposited in the Facility LC
Collateral Account.
(c) The Administrative Agent may at any time or from time to time after funds are
deposited in the Facility LC Collateral Account, apply such funds to the payment of the
Obligations and any other amounts as shall from time to time have become due and payable by
the Borrower to the Lenders or any LC Issuer under the Loan Documents.
(d) At any time while any Default is continuing, neither the Borrower nor any Person
claiming on behalf of or through the Borrower shall have any right to withdraw any of the funds
held in the Facility LC Collateral Account. After all of the Obligations have been indefeasibly
paid in full and the Aggregate Commitment has been terminated, any funds remaining in the
Facility LC Collateral Account shall be returned by the Administrative Agent to the Borrower or
paid to whomever may be legally entitled thereto at such time as ordered by a court of competent
jurisdiction.
(e) If, within fourteen (14) days after acceleration of the maturity of the Obligations
or termination of the obligations ofthe Lenders to make Loans and the obligation and power of
the LC Issuers to issue Facility LCs hereunder as a result of any Default (other than any Default
as described in Sections 7(g) or 7(h) with respect to the Borrower) and before any judgment or
decree for the payment of the Obligations due shall have been obtained or entered, the Required
Lenders (in their sole discretion) shall so direct, the Administrative Agent shall, by notice to the
Borrower, rescind and annul such acceleration and/or termination.
Amendments. Neither this Agreement or any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the Borrower and the Required Lenders (or
by the Administrative Agent at the direction or with the consent of the Required Lenders);
provided however, that no such agreement shall:
(i) unless agreed to by each Lender directly affected thereby, (i) reduce or
forgive the principal amount of any Loan or Reimbursement Obligation, reduce the rate
of or forgive any interest thereon (provided that only the consent of the Required Lenders
shall be required to waive the applicability of any post-default increase in interest rates),
or reduce or forgive any fees hereunder, (ii) extend the scheduled date for the payment of
any principal of or interest on any Loan (including any scheduled date for the mandatory
1O23995v418445,00012
reduction or termination of any Commitments), extend the time of payment of any
Reimbursement Obligation or any interest thereon, extend the expiry date of any Facility
LC beyond the Facility LC Maturity Date, or extend the time of payment of any fees
hereunder, or (iii) increase any Commitment of any such Lender over the amount thereof
in effect or extend the maturity thereof;
(ii) unless agreed to by all of the Lenders, (A) modify the definition of the
term "Required Lenders , or (B) change or waive any provision of Section 11.2 any
other provision of this Agreement or any other Loan Document requiring pro rata
treatment of any Lenders, or this Section 2; and
(iii) unless agreed to by the applicable LC Issuer, the Swingline Lender or the
Administrative Agent, no such agreement shall (A) amend, modify or otherwise affect the
rights or duties of the Administrative Agent hereunder without the prior written consent
of the Administrative Agent, (B) amend, modify or otherwise affect the rights or duties of
the Swingline Lender hereunder without the prior written consent of the Swingline
Lender, or (C) amend, modify or otherwise affect the rights or duties of any LC Issuer
hereunder without the prior written consent of such LC Issuer.
Preservation of Rights. No delay or omission of the Lenders , the Swingline
Lender, the LC Issuers or the Administrative Agent to exercise any right under the Loan
Documents shall impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of a Credit Extension notwithstanding the existence of a
Default or the inability of the Borrower to satisfy the conditions 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 of the terms, conditions or provisions of the Loan
Documents whatsoever shall be valid unless in writing signed by the Lenders required pursuant
to Section 8.and then only to the extent specifically set forth in such writing. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all shall be
available to the Administrative Agent, the LC Issuers, the Swingline Lender and the Lenders
until the Obligations have been paid in full.
ARTICLE 9
GENERAL PROVISIONS
Survival of Representations. All representations and warranties of the Borrower
contained in this Agreement shall survive the making of the Credit Extensions herein
contemplated.
Governmental Regulation. Anything contained in this Agreement to the contrary
notwithstanding, neither the LC Issuers , the Swingline Lender nor any Lender shall be obligated
to extend credit to the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
1023995v418445,00012
Headings. Section headings in the Loan Documents are for convenience of
reference only, and shall not govern the interpretation of any of the provisions of the Loan
Documents.
9.4 Entire Agreement.The Loan Documents embody the entire agreement and
understanding among the Borrower, the Administrative Agent, the LC Issuers, the Swingline
Lender and the Lenders and supersede 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 thereof other than the Fee Letters.
Several Obligations; Benefits of this Agreement.The respective obligations of
the Lenders hereunder are several and not joint and no Lender shall be the partner or agent of any
other (except to the extent to which the Administrative Agent is authorized to act as such). The
failure of any Lender to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this Agreement and any
Person indemnified under Section 9.or any other provision of this Agreement, and their
respective successors and assigns provided that the parties hereto expressly agree that each Joint
Lead Arranger shall enjoy the benefits of the provisions of Sections 9., 9.10 and 10.11 to the
extent specifically set forth therein and shall have the right to enforce such provisions on its own
behalf and in its own name to the same extent as if it were a party to this Agreement.
Expenses; Indemnification
(a) The Borrower shall reimburse the Administrative Agent and each Joint Lead
Arranger for any reasonable costs, internal charges and out-of-pocket expenses (including
reasonable attorneys' fees and time charges of attorneys for the Administrative Agent , which
attorneys may be employees of the Administrative Agent) paid or incurred by the Administrative
Agent or such Joint Lead Arranger in connection with the preparation, negotiation, execution
delivery, syndication, distribution (including via the internet), review, amendment, modification
and administration of the Loan Documents. The Borrower also agrees to reimburse the
Administrative Agent, each Joint Lead Arranger, each LC Issuer, the Swingline Lender and the
Lenders for any reasonable costs, internal charges and out-of-pocket expenses (including
reasonable attorneys ' fees and time charges of attorneys for the Administrative Agent , each Joint
Lead Arranger, each LC Issuer, the Swing line Lender and the Lenders , which attorneys may be
employees of the Administrative Agent, a Joint Lead Arranger, an LC Issuer, the Swingline
Lender or a Lender) paid or incurred by the Administrative Agent, either Joint Lead Arranger
any LC Issuer, the Swingline Lender or any Lender in connection with the collection and
enforcement of the Loan Documents. Expenses being reimbursed by the Borrower under this
Section include reasonable costs and expenses incurred in connection with the Reports described
in the following sentence. The Borrower acknowledges that from time to time Wachovia may
prepare and may distribute to the Lenders (but shall have no obligation or duty to prepare or to
distribute to the Lenders) certain audit reports (the "Reports ) pertaining to the Borrower s assets
for internal use by Wachovia from information furnished to it by or on behalf of the Borrower
after Wachovia has exercised its rights of inspection pursuant to this Agreement.
1O23995v418445,00012
(b) The Borrower hereby further agrees to indemnify the Administrative Agent, each
Joint Lead Arranger, each LC Issuer, the Swingline Lender, each Lender, their respective
Affiliates, and each of their partners, directors, officers , employees, agents and advisors (each
such Person being called an "Indemnitee ) against all losses, claims, damages, penalties
judgments, liabilities and expenses (including all expenses of litigation or preparation therefor
whether or not such Indemnitee is a party thereto) which any of them may payor incur arising
out of or relating to this Agreement, the other Loan Documents, the transactions contemplated
hereby or the direct or indirect application or proposed application of the proceeds of any Credit
Extension hereunder except to the extent that they are determined in a final non-appealable
judgment by a court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the party seeking indemnification.
(c) The obligations of the Borrower under this Section 9.shall survive the
termination of this Agreement.
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.
Accounting. Except as-provided to the contrary herein, all accounting terms used
herein shall be interpreted and all accounting determinations hereunder shall be made in
accordance with Agreement Accounting Principles.
SeverabilitvofProvisions. Any provision in any Loan Document that is held to
be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable, or invalid without affecting the remaining provisions in that
jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction
and to this end the provisions of all Loan Documents are declared to be severable.
10 NonliabilitvofLenders. The relationship between the Borrower on the one hand
and the Lenders, the Swingline Lender, the LC Issuers and the Administrative Agent on the other
hand shall be solely that of borrower and lender. None of the Administrative Agent, either Joint
Lead Arranger, any LC Issuer, the Swingline Lender or any Lender shall have any fiduciary
responsibilities to the Borrower. None of the Administrative Agent, either Joint Lead Arranger
any LC Issuer, the Swingline Lender or any Lender undertakes any responsibility to the
Borrower to review or inform the Borrower of any matter in connection with any phase of the
Borrower s business or operations. The Borrower agrees that no Indemnitee shall have liability
to the Borrower (whether sounding in tort, contract or otherwise) for losses suffered by the
Borrower in connection with, arising out of, or in any way related to, the transactions
contemplated and the relationship established by the Loan Documents, or any act, omission or
event occurring in connection therewith, unless it is determined in a final non-appealable
judgment by a court of competent jurisdiction that such losses resulted from the gross negligence
or willful misconduct ofthe party from which recovery is sought. No Indemnitee shall have any
liability with respect to, and the Borrower hereby waives, releases and agrees not to sue for, (i)
any special, indirect, consequential or punitive damages suffered by the Borrower in connection
with, arising out of, or in any way related to the Loan Documents or the transactions
contemplated thereby, and (ii) any damages arising from the use by unintended recipients of any
1O23995v4 18445,00012
information or other materials distributed by it through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby. The provisions of this Section
10 shall survive the termination of this Agreement.
11 Confidentiality.Each Lender agrees to hold any confidential information which it
may receive from the Borrower pursuant to this Agreement in confidence, except for disclosure
(i) to its Affiliates and to other Lenders and their respective Affiliates, (ii) to legal counsel
accountants, and other professional advisors to such Lender or to a Transferee, (iii) to regulatory
officials having jurisdiction over such Lender or any of its Affiliates, (iv) as required by law
regulation, or legal process, (v) as required in connection with any legal proceeding to which
such Lender is a party, (vi) to such Lender s direct or indirect contractual counterparties in Rate
Management Transactions or to legal counsel, accountants and other professional advisors to
such counterparties, (vii) permitted by Section 12.4 and (viii) in connection with the exercise of
rights or remedies hereunder or any action or proceeding relating to this agreement. In the case
of any disclosure pursuant to clause (i), (ii), (vi) or (vii) above, each Person to whom such
disclosure is made will be informed of the confidential nature of such information and instructed
to keep such information confidential. In the case of any requested disclosure pursuant to clause
(iv) or (v) above, the applicable Lender will give prompt notice of the request to the Borrower
(unless prohibited by the terms of the applicable law, regulation, subpoena or other legal process
or proceeding) so that the Borrower may endeavor to obtain a protective order or other assurance
of confidential treatment.
9.12 Nonreliance. Each Lender hereby represents that it is not relying on or looking to
any margin stock (as defined in Regulation U of the Board of Governors of the Federal Reserve
System) for the repayment of the Credit Extensions provided for herein.
13 Disclosure. The Borrower and each Lender hereby acknowledge and agree that
Wachovia 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.
14 PATRIOT Act Notice. Each Lender that is subject to the PATRIOT Act and the
Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower
that pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the PATRIOT Act.
15 Counterparts.This Agreement may be executed in any number of counterparts
all of which taken together shall constitute one agreement, and any ofthe parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be effective
when it has been executed by the Borrower, the Administrative Agent, the LC Issuers, the
Swingline Lender and the Lenders as of the Closing Date and each party has notified the
Administrative Agent by facsimile transmission or telephone that it has taken such action.
1023995v418445,00012
ARTICLE 10
THE ADMINISTRATIVE AGENT
10.Appointment; Nature of Relationship. Wachovia Bank, National Association 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 (for purposes of this Article, references to Lenders shall also mean each LC Issuer and
the Swingline Lender) irrevocably authorizes the Administrative Agent to act as the contractual
representative of such Lender with the rights and duties expressly set forth herein and in the
other Loan Documents. The Administrative Agent agrees to act as such contractual
representative upon the express conditions contained in this Article 10. Notwithstanding the use
of the defined term "Administrative Agent " it is expressly understood and agreed that the
Administrative Agent shall not have any fiduciary responsibilities to any Lender by reason of
this Agreement or any other Loan Document and that the Administrative Agent is merely acting
as the contractual representative of the Lenders with only those duties as are expressly set forth
in this Agreement and the other Loan Documents. In its capacity as the Lenders' contractual
representative, the Administrative Agent (i) does not hereby assume any fiduciary duties to any
of the Lenders , (ii) is a "representative" of the Lenders within the meaning of Section 9-105 of
the Uniform Commercial Code and (iii) is acting as an independent contractor, the rights and
duties of which are limited to those expressly set forth in this Agreement and the other Loan
Documents. Each of the Lenders hereby agrees to assert no claim against the Administrative
Agent on any agency theory or any other theory ofliability for breach of fiduciary duty, all of
which claims each Lender hereby waives.
10.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.General Immunity.Neither the Administrative Agent nor any of its directors
officers, agents or employees shall be liable to the Borrower, the Lenders or any Lender for any
action taken or omitted to be taken by it or them hereunder or under any other Loan Document or
in connection herewith or therewith except to the extent such action or inaction is determined in
a final non-appealable judgment by a court of competent jurisdiction to have arisen from the
gross negligence or willful misconduct of such Person.
lOA No Responsibility for Loans, Recitals, etc. Neither the Administrative Agent nor
any of its directors, officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into, or verify (a) any statement, warranty or representation made in connection
with any Loan Document or any borrowing hereunder; (b) the performance or observance of any
of the covenants or agreements of any obligor under any Loan Document, including any
agreement by an obligor to furnish information directly to each Lender; (c) the satisfaction of
any condition specified in Article 4 except receipt of items required to be delivered solely to the
Administrative Agent; (d) the existence or possible existence of any Default or Unmatured
Default; (e) the validity, enforceability, effectiveness, sufficiency or genuineness of any Loan
1023995v418445,00012
Document or any other instrument or writing furnished in connection therewith; (f) the value
sufficiency, creation, perfection or priority of any Lien in any collateral security; or (g) the
financial condition of the Borrower or any guarantor of any of the Obligations or of any of the
Borrower s or any such guarantor s respective Subsidiaries. The Administrative Agent shall
have no duty to disclose to the Lenders information that is not required to be furnished by the
Borrower to the Administrative Agent at such time, but is voluntarily furnished by the Borrower
to the Administrative Agent (either in its capacity as Administrative Agent or in its individual
capacity).
10.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.Emplovment of Administrative Agents and Counsel.The Administrative Agent
may execute any of its duties as Administrative Agent hereunder and under any other Loan
Document by or through 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 peliaining to the
Administrative Agent's duties hereunder and under any other Loan Document.
10.Reliance on Documents; Counsel.The Administrative Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram, statement, paper or
document believed by it to be genuine and correct and to have been signed or sent by the proper
person or persons, and, in respect to legal matters, upon the opinion of counsel selected by the
Administrative Agent, which counsel may be employees of the Administrative Agent.
10.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) (i) for any amounts not reimbursed by the
Borrower for which the Administrative Agent is entitled to reimbursement by the Borrower
under the Loan Documents, (ii) for any other expenses incurred by the Administrative Agent on
behalf of the Lenders , in connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents (including for any expenses incurred by the Administrative
Agent in connection with any dispute between the Administrative Agent and any Lender or
between two or more of the Lenders) and (iii) for any liabilities, obligations, losses, damages
penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature
1O23995v418445,00012
whatsoever which may be imposed on, incurred by or asserted against the Administrative Agent
in any way relating to or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby (including for any such amounts
incurred by or asserted against the Administrative Agent in connection with any dispute between
the Administrative Agent and any Lender or between two or more of the Lenders), or the
enforcement of any of the terms of the Loan Documents or of any such other documents
provided that (x) no Lender shall be liable for any of the foregoing to the extent any of the
foregoing is found in a final non-appealable judgment by a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct of the Administrative Agent and
(y) any indemnification required pursuant to Section 3.5(g) shall, notwithstanding the provisions
of this Section 10., 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.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 refelTing 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.
1 0.1 0 Rights as a Lender.In the event the Administrative Agent is a Lender, the
Administrative Agent shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may exercise the
same as though it were not the Administrative Agent, and the term "Lender" or Lenders" shall
at any time when the Administrative Agent is a Lender, unless the context otherwise indicates
include the Administrative Agent in its individual capacity. The Administrative Agent and its
Affiliates may accept deposits from, lend money to , and generally engage in any kind of trust
debt, equity or other transaction, in addition to those contemplated by this Agreement or any
other Loan Document, with the Borrower or any of its Subsidiaries in which the Borrower or
such Subsidiary is not restricted hereby from engaging with any other Person. The
Administrative Agent, in its individual capacity, is not obligated to remain a Lender.
10.11 Lender Credit Decision. Each Lender acknowledges that it has, independently
and without reliance upon the Administrative Agent, either Joint Lead 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 Joint Lead Arranger or any other Lender and based on such dQ,cuments 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, forty-five (45) days after the retiring Administrative
1023995v418445.00012
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 shall have the right to appoint, on
behalf of the Borrower and the Lenders, a successor Administrative Agent. Ifno successor
Administrative Agent shall have been so appointed by the Required Lenders within thirty (30)
days after the resigning Administrative Agent's giving notice of its intention to resign , then the
resigning Administrative Agent may appoint, on behalf of the Borrower and the Lenders, a
successor Administrative Agent. Notwithstanding the previous sentence, the Administrative
Agent may at any time without the consent of the Borrower or any Lender, appoint any of its
Affiliates, which is a commercial bank as a successor Administrative Agent hereunder. If the
Administrative Agent has resigned 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.then the
term "Prime Rate" as used in this Agreement shall mean the prime rate, base rate or other
analogous rate of the new Administrative Agent.
10.13 Administrative Agent and Joint Lead Arranger Fees. The Borrower agrees to pay
to the Administrative Agent and each Joint Lead Arranger, for their accounts , the fees agreed to
by the Borrower, the Administrative Agent and/or such Joint Lead Arrangers pursuant to the Fee
Letters.
10.14 Delegation to Affiliates.The Borrower and the Lenders agree that the
Administrative Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate s directors, officers, agents and employees)
which performs duties in connection with this Agreement shall be entitled to the same benefits of
the indemnification, waiver and other protective provisions to which the Administrative Agent is
entitled under Article 9 and Article)O.
10.15 Other Agents. No Lender identified on the cover page, the signature pages or
otherwise in this Agreement, or in any document related hereto, as being the "Syndication
Agent" or a "Documentation Agent" shall have any right, power, obligation, liability,
1O23995v418445,00012
responsibility or duty under this Agreement in such capacity other than those applicable to all
Lenders. Each Lender acknowledges that it has not relied, and will not rely, on any Person so
identified in deciding to enter into this Agreement or in taking or refraining from taking any
action hereunder or pursuant hereto.
10.16 LC Issuer and Swingline Lender.The provisions of this Article 10 (other than
Section 10.10) shall apply to each LC Issuer and the Swingline Lender mutatis mutandis to the
same extent as such provisions apply to the Administrative Agent.
ARTICLE 11
SETOFF; RATABLE PAYMENTS
11.Setoff.In addition to, and without limitation of, any rights (including other rights
of setoff) of the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs , any and all deposits (including all account balances, whether
provisional or final and whether or not collected or available) and any other Indebtedness at any
time held or owing by any Lender, any LC Issuer, the Swingline Lender or any of their
respective Affiliates to or for the credit or account of the Borrower may be offset and applied
toward the payment of the Obligations owing to such Lender, such LC Issuer, the Swingline
Lender or any such Affiliate whether or not the Obligations, or any part thereof, shall then be
due. The Swingline Lender, each Lender and each LC Issuer agrees to notify the Borrower and
the Administrative Agent in writing promptly after any such setoff and application; provided that
the failure to give such notice shall not affect the validity of such setoff and application.
11.Ratable Pavments . If any Lender, whether by setoff or otherwise, has payment
made to it upon its Outstanding Credit Exposure (other than payments received pursuant to
Sections 3., 3., 3.4 or 3.5) in a greater proportion than that received by any other Lender, such
Lender agrees , promptly upon demand, to purchase a portion of the Aggregate Outstanding
Credit Exposure held by the other Lenders so that after such purchase each Lender will hold its
Pro Rata Share of the Aggregate Outstanding Credit Exposure. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such amounts which may be subject to setoff
such Lender agrees , promptly upon demand, to take such action necessary such that all Lenders
share in the benefits of such collateral ratably in proportion to their respective Pro Rata Share of
the Aggregate Outstanding Credit Exposure. In case any such payment is disturbed by legal
process, or otherwise, appropriate further adjustments shall be made. If an amount to be setoff is
to be applied to Indebtedness ofthe Borrower to a Lender other than Indebtedness comprised of
the Outstanding Credit Exposure of such Lender, such amount shall be applied ratably to such
other Indebtedness and to the Indebtedness comprised of such Outstanding Credit Exposure.
ARTICLE 12
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
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
1023995v418445.00012
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 must be made in
compliance with Section 12.3. The parties to this Agreement acknowledge that clause (ii) of the
foregoing sentence relates only to absolute assignments and does not prohibit assignments
creating security interests, including (x) any pledge or assignment by any Lender of all or any
portion of its rights under this Agreement and any Note to a Federal Reserve Bank or (y) in the
case of a Lender which is a fund, any pledge or assignment of all or any portion of its rights
under this Agreement and any Note to its trustee in support of its obligations to its trustee;
provided that no such pledge or assignment creating a security interest shall release the transferor
Lender from its obligations hereunder unless and until the parties thereto have complied with the
provisions of Section 12.3. The Administrative Agent may treat the Person which made any
Loan or which holds any Note as the owner thereof for all purposes hereof unless and until such
Person complies with Section 12.3; provided that the Administrative Agent may in its discretion
(but shall not be required to) follow instructions from the Person which made any Loan or which
holds any Note to direct payments relating to such Loan or Note to another Person. Any
assignee of the rights to any Loan or any Note agrees by acceptance of such assignment to be
bound by all the terms and provisions of the Loan Documents. Any request, authority or consent
of any Person, who at the time of making such request or giving such authority or consent is the
owner of the rights to any Loan (whether or not a Note has been issued in evidence thereof),
shall be conclusive and binding on any subsequent holder or assignee of the rights to such Loan.
12.Participations
(a) Permitted Participants~ Effect.Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time sell to one or more banks or other
entities ("Participants ) participating interests in any Outstanding Credit Exposure of such
Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of
such Lender under the Loan Documents. In the event of any such sale by a Lender of
participating interests to a Participant, such Lender s obligations under the Loan Documents
shall remain unchanged, such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, such Lender shall remain the owner of its Outstanding
Credit Exposure and the holder of any Note issued to it in evidence thereof for all purposes under
the Loan Documents, all amounts payable by the Borrower under this Agreement shall be
determined as if such Lender had not sold such participating interests, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender in connection
with such Lender s rights and obligations under the Loan Documents.
(b) Voting Rights. Each Lender shall retain the sole right to approve, without the
consent of any Participant, any amendment, modification or waiver of any provision of the Loan
Documents other than any amendment, modification or waiver with respect to any Credit
Extension or Commitment in which such Participant has an interest which forgives principal
interest or fees or reduces the interest rate or fees payable with respect to any such Loan or
Commitment, extends the Facility Termination Date (except as otherwise permitted in
accordance with Section 2.21), postpones any date fixed for any regularly-scheduled payment of
principal of, or interest or fees on, any such Loan or Commitment, or postpones the expiry date
of any Facility LC beyond the Facility Termination Date, releases any guarantor of any such
Loan or releases all or substantially all of the collateral, if any, securing any such Loan.
1023995v418445,00012
( c) Benefit of Setoff.The Borrower agrees that each Participant shall be deemed to
have the right of setoff provided in Section 11.1 in respect of its participating interest in amounts
owing under the Loan Documents to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under the Loan Documents provided that each Lender shall
retain the right of setoff provided in Section 11.with respect to the amount of participating
interests sold to each Participant. The Lenders agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in Section 11.1 agrees to share with each
Lender, any amount received pursuant to the exercise of its right of setoff, such amounts to be
shared in accordance with Section 11.2 as if each Participant were a Lender.
12.Assignments
(a) Permitted Assignments. Any Lender may, in the ordinary course of its business
and in accordance with applicable law, at any time assign to one or more banks or other entities
Purchasers ) all or any part of its rights and obligations under the Loan Documents. Such
assignment shall be substantially in the form of Exhibit C or in such other form as may be
agreed to by the parties thereto. The consent of the Borrower, the Administrative Agent and
each LC Issuer 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 consent shall not be
unreasonably withheld or delayed. Each such assignment with respect to a Purchaser which is
not a Lender or an Affiliate thereof shall (unless each of the Borrower and the Administrative
Agent otherwise consents) be in an amount not less than the lesser of (i) $10 000 000 or (ii) the
remaining amount of the assigning Lender s Commitment (calculated as at the date of such
assignment) or Outstanding Credit Exposure (if the applicable Commitment has been
terminated).
(b) Effect; Effective Date. Upon (i) delivery to the Administrative Agent of an
assignment, together with any consents required by Section 12.3(a), and (ii) payment of a $3 500
fee to the Administrative Agent for processing such assignment (unless such fee is waived by the
Administrative Agent in its sole discretion), such assignment shall become effective on the
effective date specified in such assignment. The assignment shall contain a representation by the
Purchaser to the effect that none of the consideration used to make the purchase of the
Commitment and Outstanding Credit Exposure under the applicable assignment agreement
constitutes "plan assets" as defined under ERISA and that the rights and interests of the
Purchaser in and under the Loan Documents will not be "plan assets" under ERISA. On and
after the effective date of such assignment, such Purchaser shall for all purposes be a Lender
party to this Agreement and any other Loan Document executed by or on behalf of the Lenders
and shall have all the rights and obligations of a Lender under the Loan Documents, to the same
extent as if it were an original party hereto, and no further consent or action by the Borrower, the
Lenders or the Administrative Agent shall be required to release the transferor Lender with
respect to the percentage of the Aggregate Commitment and Outstanding Credit Exposure
assigned to such Purchaser. Upon the consummation of any assignment to a Purchaser pursuant
to this Section 12.3(a), the transferor Lender, the Administrative Agent and the Borrower shall
if the transferor Lender or the Purchaser desires that its Loans be evidenced by Notes, make
appropriate arrangements so that new Notes or, as appropriate, replacement Notes are issued to
such transferor Lender and new Notes or, as appropriate, replacement Notes, are issued to such
1O23995v4 18445,00012
Purchaser, in each case in principal amounts reflecting their respective Commitments, as
adjusted pursuant to such assignment.
(c) Register.The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at its office in referred to in Schedule 13.1 a copy of each
assignment agreement delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and Outstanding Credit Exposure owing to
each Lender pursuant to the terms hereof from time to time (the "Register ). The entries in the
Register shall be conclusive, and the Borrower, the Administrative Agent, the LC Issuers, the
Swingline Lender 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, any LC Issuer, any Lender and the Swingline Lender at any reasonable time and from
time to time upon reasonable prior notice.
12.4 Dissemination ofInformation.The Borrower authorizes each Lender to disclose
to any Participant or Purchaser or any other Person acquiring an interest in the Loan Documents
by operation of law (each a "Transferee ) and any prospective Transferee any and all
information in such Lender s possession concerning the creditworthiness of the Borrower and its
Subsidiaries, including any information contained in any Reports; provided that each Transferee
and prospective Transferee agrees to be bound by Section 9.11 of this Agreement.
12.Tax Treatment.If any interest in any Loan Document is transferred to any
Transferee, which is organized under the laws of any jurisdiction other than the United States or
any State thereof, the transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of Section 3.5( d) and such
Transferee shall not be entitled to any additional payments under Section 3.5, (i) unless, and only
to the extent, that the transferor Lender was entitled to amounts under Section 3.5, or (ii) in the
event that payments to the Transferee were not subject to any withholding at the time of transfer
and became subject to withholding as a result of a Change In Law.
ARTICLE 13
NOTICES
13.Notices.
(a) Except as otherwise permitted by Section 2.13 with respect to borrowing notices
all notices, requests and other communications to any party hereunder shall be in writing
(including electronic transmission, facsimile transmission or similar writing) and shall be given
to such party: (x) in the case of the Borrower or the Administrative Agent, at its address or
facsimile number set forth on Schedule 13., (y) in the case of any Lender, at its address or
facsimile number set forth in its Administrative Questionnaire or (z) in the case of any party, at
such other address or facsimile number as such party may hereafter specify for the purpose by
notice to the Administrative Agent and the Borrower in accordance with the provisions of this
Section 13.1. Each such notice, request or other communication shall be effective (i) if given by
facsimile transmission, when transmitted to the facsimile number specified in this Section and
1O23995v418445,00012
confirmation of receipt is received, (ii) if given by mail, 72 hours after such communication is
deposited in the mails with first class postage prepaid, addressed as aforesaid, or (iii) if given by
any other means, when delivered at the address specified in this Section; provided that notices to
the Administrative Agent under Article 2 shall not be effective until received. Notices delivered
through electronic communications to the extent provided in subsection (b) below, shall be
effective as provided in such subsection (b).
(b) Notices and other communications to the Lenders hereunder may be delivered or
furnished by electronic communication (including e-mail and internet or intranet websites)
pursuant to procedures approved by the Administrative Agent or as otherwise determined by the
Administrative Agent provided that the foregoing shall not apply to notices to any Lender
pursuant to Article 2 if such Lender has notified the Administrative Agent that it is incapable of
receiving notices under such Section by electronic communication. The Administrative Agent or
the Borrower may, in its respective discretion, agree to accept notices and other communications
to it hereunder by electronic communications pursuant to procedures approved by it or as it
otherwise determines provided that such determination or approval may be limited to particular
notices or communications. Unless the Administrative Agent otherwise prescribes, (i) notices
and other communications sent to an e-mail address shall be deemed received upon the sender
receipt of an acknowledgement from the intended recipient (such as by the "return receipt
requested" function, as available, return e-mail or other written acknowledgement), provided that
if such notice or other communication is not given during the normal business hours of the
recipient, such notice or communication shall be deemed to have been given at the opening of
business on the next Business Day for the recipient, and (ii) notices or communications posted to
an internet or intranet website shall be deemed received upon the deemed receipt by the intended
recipient at its e-mail address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address therefor.
13.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.CHOICE OF LAW.THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL (EXCEPT AS MAY BE EXPRESSLY OTHERWISE PROVIDED IN
ANY LOAN DOCUMENT) BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND
1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT EXCLUDING ALL
OTHER CHOICE OF LAW AND CONFLICTS OF LA W RULES); PROVIDED THAT EACH
LETTER OF CREDIT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LA WS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT OR
APPLICATION THEREFOR OR, IF NO SUCH LAWS OR RULES ARE DESIGNATED
THE INTERNATIONAL STANDBY PRACTICES OF THE INTERNATIONAL CHAMBER
OF COMMERCE, AS IN EFFECT FROM TIME TO TIME (THE "ISP ), AND, AS TO
MATTERS NOT GOVERNED BY THE ISP, THE LAWS OF THE STATE OF NEW YORK
1023995v418445,00012
(INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW, BUT EXCLUDING ALL OTHER CHOICE OF LAW AND
CONFLICTS OF LAW RULES).
14.CONSENT TO JURISDICTION THE BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS
OF THE STATE OF NORTH CAROLINA SITTING IN MECKLENBURG COUNTY AND
OF THE UNITED STATES DISTRICT COURT OF THE WESTERN DISTRICT OF NORTH
CAROLINA, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND
THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT
OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY
SUCH COURT AND IRREVO CAB L Y WAIVES ANY OBJECTION IT MA Y NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE AGENT, 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, ANY LC ISSUER OR ANY LENDER OR ANY AFFILIATE
OF THE ADMINISTRATIVE AGENT, ANY LC ISSUER OR ANY LENDER INVOLVING
DIRECTL Y OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT
ONLY IN A COURT IN CHARLOTTE, NORTH CAROLINA.
14.WAIVER OF JURY TRIAL.THE BORROWER, THE ADMINISTRATIVE
AGENT, EACH LC ISSUER AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN
ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
(SIGNATURES FOLLOW)
1023995v418445,00012
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.
IDAHO POWER COMPANY
By:
s:c-
R. K
Name: Steven R. Keen
Title:. Vice President and Treasurer
APR, 24, 2007 5: 22PM NO. 1476 P. 3
ACHOVIA BANK, NATIONAL
ASSOCIATION, as a Lender, Swingline Lender
LC Issuer and as Administrative Agent
By:
Name: Hank Biedrzycki
Title: Director
APR 24 2007 17: 25 FR lP MORGAN 312 541 3376 TO 917043733918
JPMORGAN CHASE BANK, A.. as
Syndication Agent and as a Lender
BY:Name:
Title:
. , P. 03/03
, -
** TnTAI PAhF - A~ **
425709++++03:18:51 p.04-24-2007 3/3
KEYBANK NATIONAL ASSOCIATION as a
Documentation Agent and as a Lender
By:
Name:
Title:
APR 24 2007 16:59 FR.TO 917043733918 P. 03/03
BANK OF AMERICA, N.A. , as a Documentation
Agent and as a Lender
By: f:l Name: ::r:
Title: 1t1.s..&. Pr-€S"M
~ +.
** TnT AI PAGF . n~ **
Apr,25. 2007 12:53PM No. 0449
US BANK NATIONAL ASSOCIATION
.. , " , " '
P. 3
APR 25 '07 10: 48 FR FSB CBD ID 208 393 2472 TO 917043733918
WELLS FARGO BANK
IYI1-a. uJ L.L"" eM4I:fie;,(. VJ~ /te;4
By:
Name;
Title:
03/03
** TOTAL PAGE. 03 **
04/25/2007 09: 40 FAX 4048276270 SUNTRUST f4IOO3
SUNTR1UST BANK .
By:
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI UFJ
LTD., SEATTLE BRANCH
. By:
N ame:r'" Tsuguyuki Umene
Title: General Manager
--"-----.--
c::.
'--'"
04/25/2007 15:27 UBOC RC~77088 213/236+4096 ~ 917043733918
UNION BANK OF CALIFORNJA, N.
By:
Name:
Title:
_~ct
NO. 223 (;1003
APR 25 2007 12:24 FR BANK OF NEW YORK
THE BAN
By:
Name:
Title:
TO 917043733918 02/02
Manf.1fiiAg Oireetar
Energy DIvision
** TnTAI PAhF .
~? **
ROYAL BANK OF CANADA
, "
'"1--; -4
;-.//
By: A -/'
, "
,0-( ...w-: M"-- .~
Name: ~~cOI~..L
+--
Title:
'A th . d S' IJ craze Igi h~ ory
UJ.J r1""i HB;:J; 0.1 :WO;:J~ 61 :E1 L002-~2-;:Jd~