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EXHIBIT 4(d)-2
EXECUTION COPY
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REVOLVING CREDIT AGREEMENT
(3 YEAR)
among
THE WASHINGTON WATER POWER COMPANY,
THE BANKS NAMED ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ DOMINION (TEXAS), INC.,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
and
THE BANK OF NEW YORK
Dated as of June 30, 1998
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EXHIBIT 4(d)-2
TABLE OF CONTENTS
Article Section Page
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I. DEFINITIONS
SECTION 1.01. Defined Terms.......................................... 4
SECTION 1.02. Terms Generally........................................ 21
II. THE CREDITS
SECTION 2.01. Commitments............................................ 21
SECTION 2.02. Loans.................................................. 22
SECTION 2.03. Notice of Revolving Borrowings......................... 24
SECTION 2.04. Auction Bid Procedure.................................. 24
SECTION 2.05. Notes; Repayment of Loans.............................. 28
SECTION 2.06. Letters of Credit...................................... 28
SECTION 2.07. Fees................................................... 33
SECTION 2.08. Interest on Loans...................................... 35
SECTION 2.09. Default Interest....................................... 35
SECTION 2.10. Alternate Rate of Interest............................. 36
SECTION 2.11. Termination and Reduction of Commitments............... 36
SECTION 2.12. Prepayment............................................. 37
SECTION 2.13. Reserve Requirements; Change in Circumstances.......... 38
SECTION 2.14. Change in Legality..................................... 39
SECTION 2.15. Indemnity.............................................. 40
SECTION 2.16. Pro Rata Treatment..................................... 41
SECTION 2.17. Sharing of Setoffs..................................... 41
SECTION 2.18. Payments............................................... 42
SECTION 2.19. Taxes.................................................. 43
SECTION 2.20. Termination or Assignment of Commitments
Under Certain Circumstances............................ 46
III. REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers................................... 47
SECTION 3.02. Authorization.......................................... 47
SECTION 3.03. Enforceability......................................... 48
SECTION 3.04. Governmental Approvals................................. 48
SECTION 3.05. Financial Statements................................... 48
SECTION 3.06. No Material Adverse Change............................. ▇▇
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▇▇▇▇▇▇▇ ▇(▇)-▇
▇▇▇▇▇▇▇ Section Page
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SECTION 3.07. Litigation; Compliance with Laws....................... 49
SECTION 3.08. Federal Reserve Regulations............................ 49
SECTION 3.09. Investment Company Act; Public Utility
Holding Company Act ................................... 50
SECTION 3.10. Use of Proceeds........................................ 50
SECTION 3.11. No Material Misstatements.............................. 50
SECTION 3.12. Employee Benefit Plans................................. 50
SECTION 3.13. Environmental and Safety Matters....................... 51
SECTION 3.14. Significant Subsidiaries............................... 51
SECTION 3.15. Year 2000 Compliance................................... 52
IV. CONDITIONS OF LENDING
SECTION 4.01. All Borrowings......................................... 52
SECTION 4.02. First Borrowing........................................ 53
V. AFFIRMATIVE COVENANTS
SECTION 5.01. Existence; Businesses and Properties................... 55
SECTION 5.02. Insurance.............................................. 56
SECTION 5.03. Taxes and Obligations.................................. 56
SECTION 5.04. Financial Statements, Reports, etc..................... 57
SECTION 5.05. Litigation and Other Notices........................... 58
SECTION 5.06. ERISA.................................................. 58
SECTION 5.07. Maintaining Records; Access to Properties
and Inspections ....................................... 59
SECTION 5.08. Use of Proceeds and Letters of Credit.................. 59
VI. NEGATIVE COVENANTS
SECTION 6.01. Liens.................................................. 60
SECTION 6.02. Mergers, Consolidations and Acquisitions............... 64
SECTION 6.03. Disposition of Assets.................................. 65
VII. EVENTS OF DEFAULT
VIII. THE AGENT
IX. MISCELLANEOUS
SECTION 9.01. Notices................................................ 73
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EXHIBIT 4(d)-2
Article Section Page
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SECTION 9.02. Survival of Agreement.................................. 73
SECTION 9.03. Binding Effect......................................... 74
SECTION 9.04. Successors and Assigns................................. 74
SECTION 9.05. Expenses; Indemnity.................................... 78
SECTION 9.06. Right of Setoff........................................ 80
SECTION 9.07. Applicable Law......................................... 80
SECTION 9.08. Waivers; Amendment..................................... 80
SECTION 9.09. Interest Rate Limitation............................... 81
SECTION 9.10. Entire Agreement....................................... 82
SECTION 9.11. Waiver of Jury Trial................................... 82
SECTION 9.12. Severability........................................... 82
SECTION 9.13. Counterparts........................................... 82
SECTION 9.14. Headings............................................... 83
SECTION 9.15. Jurisdiction; Consent to Service of Process............ 83
References
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Exhibit A Note
Exhibit B Assignment and Acceptance
Exhibit C Administrative Questionnaire
Exhibit D-1 Opinion of General Counsel for the Borrower
Exhibit D-2 Opinion of Special Counsel for the Borrower
Schedule 2.01 Banks
Schedule 3.14 Significant Subsidiaries
Schedule 4.02(c) Orders of Governmental Authorities
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REVOLVING CREDIT AGREEMENT dated as of June 30,
1998, among THE WASHINGTON WATER POWER COMPANY, a
Washington corporation (herein called the "Borrower"), the
banks listed in Schedule 2.01 (the "Banks"), TORONTO
DOMINION (TEXAS), INC., as agent for the Banks (in such
capacity, the "Agent"), BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as syndication agent (the
"Syndication Agent") and THE BANK OF NEW YORK, as
documentation agent (the "Documentation Agent").
The Borrower has requested that the Banks extend credit to the
Borrower in order to enable the Borrower to borrow on a standby revolving credit
basis and obtain letters of credit on and after the date hereof, at any time
prior to the Expiration Date (as herein defined) a principal amount not in
excess of $125,000,000 at any time outstanding. The proceeds of such borrowings
and such letters of credit are to be used for general corporate purposes. In
consideration of the mutual covenants and agreements contained herein, the
parties agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit C.
"Affiliate" shall mean, when used with respect to
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a specified person, another person that directly, or indirectly through one or
more intermediaries, Controls or is Controlled by or is under common Control
with the person specified.
"Agency Fees" shall have the meaning assigned to such term in
Section 2.07(c).
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the nearest 1/16 of 1%) equal to the greater
of (a) the Prime Rate (computed on the basis of the actual number of days
elapsed over a year of 365 or 366 days, as the case may be) in effect on such
day and (b) the sum of (i) the Federal Funds Effective Rate in effect for such
day plus (ii) 1/2 of 1%. If for any reason the Agent shall have determined
(which determination shall be conclusive absent manifest error) that it is
unable to ascertain the Federal Funds Effective Rate for any reason, the
Alternate Base Rate shall be determined without regard to clause (b) of the
first sentence of this definition until the circumstances giving rise to such
inability no longer exist.
"Applicable Percentage" shall mean, with respect to any Bank, the
percentage of the total Commitments represented by such Bank's Commitment. If
the Commitments have terminated or expired, the Applicable Percentage shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" shall mean on any date, with respect to any ABR
Loan or Eurodollar Revolving Loan, or with respect to the Commitment Fees or the
Letter of Credit fees payable hereunder, as the case may be, the applicable rate
per annum set forth below under the caption "ABR Spread," "Eurodollar Spread,"
"Commitment Fee" or "Letter of Credit Participation Fees", as the case may be,
based upon the Ratings:
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Ratings ABR Spread Eurodollar Commitment Letter of
------- ---------- ---------- ---------- ---------
Spread Fee Credit
------ --- ------
Participation
-------------
Fees
----
▇▇▇▇▇ ▇ 0.00% .25% .09% .25%
A- or higher by S&P;
and A3 or higher by
▇▇▇▇▇'▇
▇▇▇▇▇ ▇ 0.00% .375% .15% .375%
BBB+ by S&P; and Baa1
by ▇▇▇▇▇'▇
▇▇▇▇▇ ▇ 0.00% .45% .20% .45%
BBB by S&P; and Baa2
by ▇▇▇▇▇'▇
▇▇▇▇▇ ▇ .50% .625% .25% .625%
BBB- by S&P; and Baa3
by ▇▇▇▇▇'▇
▇▇▇▇▇ ▇ .50% 1.00% .375% 1.00%
Lower than BBB- by
S&P; and lower than
Baa3 by ▇▇▇▇▇'▇
For purposes of the foregoing, (i) if the Ratings in effect on any date fall in
different Levels, the Applicable Rate shall be determined on such date by
reference to the superior (numerically lower) Level, unless the Ratings differ
by more than one Level, in which case the applicable
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Level shall be the Level next below the superior (numerically lower) of the two;
(ii) if either ▇▇▇▇▇'▇ or S&P shall not have in effect a Rating (other than
because such rating agency shall no longer be in the business of rating
corporate debt obligations), then such rating agency will be deemed to have
established a Rating in Level 5; and (iii) if any rating established or deemed
to have been established by ▇▇▇▇▇'▇ or S&P shall be changed (other than as a
result of a change in the rating system of either ▇▇▇▇▇'▇ or S&P), such change
shall be effective as of the day after the date on which such change is first
announced by the rating agency making such change. Each change in the Applicable
Rate shall apply during the period commencing on the effective date of such
change and ending on the date immediately preceding the effective date of the
next such change. If the rating system of either ▇▇▇▇▇'▇ or S&P shall change, or
if either such rating agency shall cease to be in the business of rating
corporate debt obligations, the Borrower and the Banks shall negotiate in good
faith to amend the references to specific ratings in this definition to reflect
such changed rating system or the non- availability of ratings from such rating
agency.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Bank and an assignee, and accepted by the Agent and
the Borrower, in the form of Exhibit B or such other form as shall be approved
by the Agent.
"Auction Bid" shall mean an offer by a Bank to make an Auction
Loan in accordance with Section 2.04.
"Auction Bid Rate" shall mean, with respect to any Auction Bid,
the Margin for Eurodollar Auction Loans, the Fixed Rate for Fixed Rate Loans or
the Delayed Fixed Rate for Delayed Fixed Rate Loans, as applicable, offered by
the Bank in making such Auction Bid.
"Auction Bid Request" shall mean a request by the Borrower for
Auction Bids in accordance with Section 2.04.
"Auction Facility" shall mean the facility described in Section
2.04.
"Auction Loan" shall mean a Loan made pursuant to
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Section 2.04.
"Availability Period" shall mean the period from and including
the Effective Date to but excluding the earlier of the Expiration Date and the
date of the termination of the Commitments.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Borrowing" shall mean (a) a group of Revolving Loans of the same
Type, made, converted or continued on the same date and, in the case of
Eurodollar Loans, as to which a single Interest Period is in effect or (b) an
Auction Loan or group of Auction Loans of the same Type made on the same date
and as to which a single Interest Period is in effect.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City.
"Capital Lease Obligations" of any person shall mean the
obligations of such person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Class", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are Revolving
Loans or Auction Loans.
"Closing Date" shall mean the date of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as the same
may be amended from time to time.
"Commitment" shall mean, with respect to each
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Bank, the commitment of such Bank to make Revolving Loans and to acquire
participations in Letters of Credit hereunder as set forth in Sections 2.01 and
2.06, as the same may be reduced from time to time pursuant to Section 2.11.
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.07(a).
"Control" shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Default" shall mean any event or condition which upon notice,
lapse of time or both would constitute an Event of Default.
"Delayed Fixed Rate" shall mean, with respect to any Auction Loan
(other than a Eurodollar Auction Loan or a Fixed Rate Loan), the fixed rate of
interest per annum specified by the Bank in making such Auction Loan in its
related Auction Bid.
"Delayed Fixed Rate Loan" shall mean an Auction Loan bearing
interest at a Delayed Fixed Rate for which an Auction Bid Request is made two
Business Days before the proposed date of borrowing.
"dollars" or "$" shall mean lawful money of the United States of
America.
"Environmental Law" shall mean any and all applicable present and
future treaties, laws, regulations, enforceable requirements, binding
determinations, orders, decrees, judgments, injunctions, permits, approvals,
authorizations, licenses, permissions, notices or binding agreements issued,
promulgated or entered by any Governmental Authority, relating to the
environment, preservation or reclamation of natural resources, or to the
management, release or threatened release of contaminants or noxious odor,
including the Hazardous Materials Transportation Act, Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the
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Superfund Amendments and Reauthorization Act of 1986, Solid Waste Disposal Act,
as amended by the Resource Conservation and Recovery Act of 1976 and Hazardous
and Solid Waste Amendments of 1984, Federal Water Pollution Control Act, as
amended by the Clean Water Act of 1977, Clean Air Act of 1970, as amended, Toxic
Substances Control Act of 1976, Occupational Safety and Health Act of 1970, as
amended, Emergency Planning and Community Right-to-Know Act of 1986, Safe
Drinking Water Act of 1974, as amended, and any similar or implementing state
law, and all amendments or regulations promulgated thereunder.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or
not incorporated) that is a member of a group of which the Borrower is a member
and which is treated as a single employer under Section 414 of the Code.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Eurodollar Rate.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate in accordance with the provisions
of Article II.
"Eurodollar Rate" shall mean, with respect to any Eurodollar Loan
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to the product of (i) the arithmetic
average of rates at which dollar deposits approximately equal to the principal
amount of the portion of such Eurodollar Loan to be made by The Toronto-Dominion
Bank, and for a maturity equal to the applicable Interest Period, are offered to
The Toronto-Dominion Bank for Eurodollars at approximately 10:00 a.m., New York
City time, two Business Days prior to the commencement of such Interest Period
and (ii) Statutory Reserves. In the event that such rate is not available at
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such time for any reason, then the "Eurodollar Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Agent in immediately available
funds in the London interbank market at approximately 10:00 a.m., New York City
time, two Business Days prior to the commencement of such Interest Period.
"Event of Default" shall have the meaning assigned to such term
in Article VII.
"Expiration Date" shall mean the third anniversary of the date of
this Agreement.
"Federal Funds Effective Rate" shall mean, for any day, the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
reported on such Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so reported for any day that is a Business Day, the average of
the quotations for the day of such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by it.
"Fees" shall mean the Commitment Fee and the Agency Fees.
"$50,000,000 Credit Facility" shall mean the $50,000,000 Amended
and Restated Revolving Credit Agreement among the Washington Water Power
Company, the banks named therein, and Toronto Dominion (Texas), Inc., dated as
of July 22, 1997.
"Financial Officer" of any corporation shall mean the chief
financial officer or Treasurer of such corporation.
"First Mortgage" shall mean the Mortgage and Deed of Trust dated
as of June 1, 1939, made by the Borrower in favor of Citibank, N.A., as
successor Trustee, as the same has been amended, modified or supplemented to
date and as the same may be further amended, modified or supplemented from time
to time hereafter.
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"Fixed Rate" shall mean, with respect to any Auction Loan (other
than a Eurodollar Auction Loan or a Delayed Fixed Rate Loan), the fixed rate of
interest per annum specified by the Bank making such Auction Loan in its related
Auction Bid.
"Fixed Rate Loan" shall mean an Auction Loan bearing interest at
a Fixed Rate for which an Auction Bid Request is made on the day of the proposed
borrowing.
"GAAP" shall mean generally accepted accounting principles,
applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantee" of or by any person shall mean any obligation,
contingent or otherwise, of such person guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
obligation of such person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (b) to purchase property, securities or
services for the purpose of assuring the owner of such Indebtedness of the
payment of such Indebtedness or (c) to maintain working capital, equity capital
or other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness; provided, however, that
the term Guarantee shall not include endorsements for collection or deposit, in
either case in the ordinary course of business.
"Indebtedness" of any person shall mean, without duplication, (a)
all obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid, (d) all obligations of such
person under conditional sale or other title retention agreements
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relating to property or assets purchased by such person, (e) all obligations of
such person issued or assumed as the deferred purchase price of property or
services (other than trade payables incurred in the ordinary course of
business), (f) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such person, whether or not the
obligations secured thereby have been assumed, but limited, if such obligations
are without recourse to such person, to the lesser of the principal amount of
such Indebtedness or the fair market value of such property, (g) all Guarantees
by such person of Indebtedness of others, (h) all Capital Lease Obligations of
such person, (i) all obligations of such person in respect of interest rate
protection agreements, foreign currency exchange agreements or other interest or
exchange rate hedging arrangements (the amount of any such obligation to be the
amount that would be payable upon the acceleration, termination or liquidation
thereof) and (j) all obligations of such person as an account party in respect
of letters of credit and bankers' acceptances. The Indebtedness of any person
shall include the Indebtedness of any partnership in which such person is a
general partner.
"Interest Payment Date" shall mean, with respect to any Loan, the
last day of the Interest Period applicable to the Borrowing of which such Loan
is a part and, in the case of a Eurodollar Borrowing with an Interest Period of
more than three months' duration, each day that would have been an Interest
Payment Date had successive Interest Periods of three months' duration been
applicable to such Borrowing and, in addition, the date of any refinancing or
conversion of such Borrowing with or to a Borrowing of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day (or, if there is no numerically corresponding day,
on the last day) in the calendar month that is 1, 2, 3 or 6 months thereafter,
as the Borrower may elect, (b) as to any ABR Borrowing, the period commencing on
the date of such Borrowing and ending on the earliest of (i) the next succeeding
March 31, June 30, September 30 or December 31, (ii) the Expiration Date, and
(iii) the date such Borrowing
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shall be repaid or prepaid in accordance with Section 2.12 and (c) with respect
to any Fixed Rate Borrowing or Delayed Fixed Rate Borrowing, the period (which
shall not be less than 7 days or more than 360 days) commencing on the date of
such Borrowing and ending on the date specified in the applicable Auction Bid
Request; provided, however, that if any Interest Period would end on a day other
than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Eurodollar Borrowing only, such
next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"Issuing Bank" shall mean The Toronto-Dominion Bank in its
capacity as the issuer of Letters of Credit hereunder, and its successors in
such capacity as provided in Section 2.06(i). The Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by Affiliates
of the Issuing Bank, in which case the term "Issuing Bank" shall include any
such Affiliate with respect to Letters of Credit issued by such Affiliate.
"LC Disbursement" shall mean a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC Exposure" shall mean, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at such time plus
(b) the aggregate amount of all LC Disbursements that have not yet been
reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any
Bank at any time shall be its Applicable Percentage of the total LC Exposure at
such time.
"Letter of Credit" shall mean any letter of credit issued
pursuant to this Agreement.
"Lien" shall mean, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, encumbrance, charge or security interest in or on
such asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset and
(c) in the case of securities, any purchase option, call or similar right of a
third party
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with respect to such securities.
"Loans" shall mean loans made by the Banks to the Borrower
pursuant to this Agreement.
"Loan Documents" shall mean this Agreement and the Notes and any
Letter of Credit applications referred to in Section 2.06(a).
"Margin" shall mean, with respect to any Auction Loan bearing
interest at a rate based on the Eurodollar Rate, the marginal rate of interest,
if any, to be added to or subtracted from the Eurodollar Rate to determine the
rate of interest applicable to such Loan, as specified by the Bank making such
Loan in its related Auction Bid.
"Margin Stock" shall have the meaning given such term under
Regulation U.
"Material Adverse Effect" shall mean an effect on the business,
assets, operations or financial condition of the Borrower and the Subsidiaries
taken as a whole which could reasonably be expected to have a material adverse
effect on the creditworthiness of the Borrower.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Notes" shall mean promissory notes of the Borrower,
substantially in the form of Exhibit A, evidencing Loans.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
"person" shall mean a corporation, association, partnership,
trust, organization, business, individual or government or governmental agency
or political subdivision thereof.
"Plan" shall mean any pension plan subject to the provisions of
Title IV of ERISA or Section 412 or the Code which is maintained for employees
of the Borrower or any ERISA Affiliate.
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"Prime Rate" shall mean the rate of interest per annum adopted
from time to time by The Toronto-Dominion Bank at its principal office in New
York City as its prime rate. For purposes of this Agreement, any change in the
Alternate Base Rate due to a change in the Prime Rate shall be effective on the
date such change in the Prime Rate is adopted.
"Ratings" shall refer to the ratings of Moody's and S&P
applicable to the Borrower's senior secured long-term debt obligations.
"Register" shall have the meaning given to such term in Section
9.04(d).
"Regulation D" shall mean Regulation D of the Board as from time
to time in effect and all official rulings and interpretations thereunder or
thereof and shall include any successor or other regulation or official
interpretation of the Board relating to reserve requirements applicable to
member banks of the Federal Reserve System.
"Regulation U" shall mean Regulation U of the Board as from time
to time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time
to time in effect and all official rulings and interpretations thereunder or
thereof.
"Related Parties" shall mean, with respect to any specified
Person, such Person's Affiliates and the respective directors, officers,
employees, agents and advisors of such Person and such Person's Affiliates.
"Reportable Event" shall mean any reportable event as defined in
Section 4043(b) of ERISA or the regulations issued thereunder with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate which is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the
Code).
"Required Banks" shall mean, at any time, Banks having Revolving
Exposures representing at least 66-2/3% of the aggregate Revolving Exposures or,
if there
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shall be no Revolving Credit Exposure, Banks having Commitments representing at
least 66-2/3% of the aggregate Commitments. For purposes of declaring the Loans
to be due and payable pursuant to Article VII and of demanding the deposit of
cash collateral pursuant to Section 2.06(i), and for all purposes after the
Loans become due and payable pursuant to Article VII or the Commitments expire
or terminate, the outstanding Auction Loans of the Banks shall be included in
their respective Revolving Credit Exposure in determining the Required Banks.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Revolving Credit Exposure" shall mean, with respect to any Bank
at any time, the sum of the outstanding principal amount of such Bank's
Revolving Loans and its LC Exposure at such time.
"Revolving Loan" shall mean a Loan made pursuant to Section 2.03.
"S&P" shall mean Standard & Poor's Ratings Services.
"$70,000,000 Credit Facility" shall mean the $70,000,000
Revolving Credit Agreement among The Washington Water Power Company, the banks
named therein and Seattle -First National Bank, dated as of December 12, 1992.
"Significant Subsidiary" shall mean a Subsidiary meeting any one
of the following conditions: (a) the investments in and advances to such
Subsidiary by the Borrower and the other Subsidiaries, if any, as at the end of
the Borrower's latest fiscal quarter exceeded 10% of the total assets of the
Borrower and its Subsidiaries at such date, computed and consolidated in
accordance with GAAP; or (b) the Borrower's and the other Subsidiaries'
proportionate share of the total assets (after intercompany eliminations) of
such Subsidiary as at the end of the Borrower's latest fiscal quarter exceeded
10% of the total assets of the Borrower and its Subsidiaries at such date,
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computed and consolidated in accordance with GAAP; or (c) the equity in the
income from continuing operations before income taxes, extraordinary items and
cumulative effect of a change in accounting principle of such Subsidiary for the
period of four consecutive fiscal quarters ending at the end of the Borrower's
latest fiscal quarter exceeded 10% of such income of the Borrower and its
Subsidiaries for such period, computed and consolidated in accordance with GAAP;
or (d) such Subsidiary is the parent of one or more Subsidiaries and, together
with such Subsidiaries would, if considered in the aggregate, constitute a
Significant Subsidiary.
"Statutory Reserves" shall mean a fraction (ex pressed as a
decimal) the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including, without limitation, any marginal, special, emergency or supplemental
reserves) with respect to Eurodollar funding (including with respect to
Eurocurrency Liabilities as defined in Regulation D) in an amount approximately
equal to the respective Eurodollar Loan and with a term approximately equal to
the Interest Period for such Eurodollar Loan expressed as a decimal established
by the Board or by any other United States banking authority to which the Agent
is subject. Such reserve percentages shall include, without limitation, those
imposed under Regulation D. Statutory Reserves shall be adjusted automatically
on and as of the effective date of any change in any reserve percentage.
"subsidiary" shall mean, for any person (the "Parent"), any
corporation, partnership or other entity of which securities or other ownership
interests having by the terms thereof ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions of such
corporation, partnership or other entity (irrespective of whether or not at the
time securities or other ownership interests of any other class or classes of
such corporation, partnership or other entity shall have or might have voting
power by reason of the happening of any contingency) are at the time directly or
indirectly owned or controlled by the Parent or one or more of its subsidiaries
or by the Parent and one or more of its subsidiaries.
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"Subsidiary" shall mean a subsidiary of the Borrower.
A "Subsidiary Event" shall mean the following; provided, however,
that a Subsidiary Event shall not be deemed to have occurred if the Banks have
previously consented thereto:
(a) any Significant Subsidiary shall fail to observe or perform
any covenant, condition or agreement contained in Section 5.01(a) as if
such section applied to such Significant Subsidiary, with all references
therein to the Borrower being deemed references to such Significant
Subsidiary;
(b) any Significant Subsidiary shall fail to observe or perform
any covenant, condition or agreement in Sections 5.01(b), 5.02, 5.03 or
5.07 as if such sections applied to such Significant Subsidiary, with
all references therein to the Borrower being deemed references to such
Significant Subsidiary, and such default shall continue unremedied for a
period of 30 days after notice thereof from the Agent or any Bank to the
Borrower; (c) any Significant Subsidiary shall:
(i) merge into or consolidate with any other person, or
permit any other person to merge into or consolidate with it, or
purchase, lease or otherwise acquire (in one transaction or a
series of transactions) all or substantially all of the assets
of any other person (whether directly by purchase, lease or
other acquisition of all or substantially all of the assets of
such person or indirectly by purchase or other acquisition of
all or substantially all of the capital stock of such other
person) other than acquisitions in the ordinary course of such
Significant Subsidiary's business, except that if, at the time
thereof and immediately after giving effect thereto no Event of
Default or Default shall have occurred and be continuing, then
(A) such Significant Subsidiary may (i) merge with or into, or
consolidate with, any Subsidiary or (ii) merge with or into, or
consolidate with, the Borrower in a transaction in which the
Borrower is the surviving
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corporation, (B) such Significant Subsidiary may purchase, lease
or otherwise acquire from any Subsidiary all or substantially
all of its assets and may purchase or otherwise acquire all or
substantially all of the capital stock of any person who
immediately thereafter is a Subsidiary, (C) such Significant
Subsidiary may merge with or into, or consolidate with, any
other person so long as the assets of such person at the time of
such consolidation or merger, do not exceed 10% of the total
assets of the Borrower and its Subsidiaries, after giving effect
to such merger or consolidation, computed and consolidated in
accordance with GAAP consistently applied, and (D) such
Significant Subsidiary may purchase, lease or otherwise acquire
any or all of the assets of any other person (and may purchase
or otherwise acquire the capital stock of any other person) so
long as the assets being purchased, leased or acquired (or the
Significant Subsidiary's proportionate share of the assets of
the person whose capital stock is being acquired) do not exceed
10% of the total assets of the Borrower and its Subsidiaries,
after giving effect to such acquisition, computed and
consolidated in accordance with GAAP consistently applied, or
(ii) sell, lease, transfer, assign or other wise dispose of
(in one transaction or in a series of transactions), in any
fiscal year, assets (whether now owned or hereafter acquired)
which, together with the amount of all sales, leases, transfers,
assignments or dispositions by the Borrower permitted under
Section 6.03 (other than sales, leases, transfers, assignments
or other dispositions permitted under clauses (i) through (iv)
of such Section), are in excess of 10% of the assets of the
Borrower and its Subsidiaries as of the end of the most recent
fiscal year, computed and consolidated in accordance with GAAP
consistently applied, except (A) a Significant Subsidiary may
sell, lease, transfer, assign or otherwise dispose of, in any
fiscal year, assets in the ordinary course of business which,
together with the amount of all sales,
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leases, transfers, assignments or dispositions in the ordinary
course permitted under Section 6.03(i), do not exceed 5% of the
assets of the Borrower and its Subsidiaries as of the end of the
most recent fiscal year, computed and consolidated in accordance
with GAAP consistently applied, (B) to the extent permitted in
clause (c)(i) above and (C) any Significant Subsidiary may sell,
lease, transfer, assign or otherwise dispose of, or create,
incur, assume or permit to exist Liens on, receivables and
related properties or interests therein;
provided, however, that, notwithstanding anything in this clause (c) to the
contrary, a Subsidiary Event shall not be deemed to have occurred and shall not
constitute an Event of Default under paragraph (k) of Article VII if, after
giving effect to the consummation of any transaction contemplated by clause
(c)(i) or (c)(ii) hereof, such Significant Subsidiary shall have or shall be
deemed to have a ratio of total long-term Indebtedness to total stockholders'
equity equal to or less than 1.5 to 1.0.
"Transactions" shall have the meaning assigned to such term in
Section 3.02.
"Type", when used in respect of any Loan or Borrowing, shall
refer to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, "Rate" shall mean,
in the case of a Revolving Loan or Borrowing, the Eurodollar Rate and the
Alternate Base Rate or, in the case of an Auction Loan or Borrowing, the
Eurodollar Rate, Fixed Rate or Delayed Fixed Rate.
SECTION 1.02. Terms Generally. The definitions in Section 1.01
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as
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otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to
time; provided, however, that, for purposes of determining compliance with any
covenant set forth in Article VI, such terms shall be construed in accordance
with GAAP as in effect on the date of this Agreement applied on a basis
consistent with the application used in preparing the Borrower's audited
financial statements referred to in Section 3.05.
ARTICLE II. THE CREDITS
SECTION 2.01. Commitments. Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, each Bank
agrees, severally and not jointly, to make Revolving Loans to the Borrower, at
any time and from time to time on or after the date of this Agreement, and until
the earlier of the Expiration Date and the termination of the Commitment of such
Bank in accordance with the terms hereof, in an aggregate principal amount at
any time outstanding that will not result in (a) the Revolving Credit Exposure
of any Bank exceeding the Commitment set forth opposite its name in Schedule
2.01 hereto, as the same may be reduced from time to time pursuant to Section
2.11 or (b) the sum of the total Revolving Credit Exposure plus the aggregate
principal amount of outstanding Auction Loans exceeding the total Commitments.
Within the limits set forth in the preceding sentence, the
Borrower may borrow, pay or prepay and reborrow Revolving Loans on or after the
date of this Agreement and prior to the Expiration Date, subject to the terms,
conditions and limitations set forth herein.
SECTION 2.02. Loans. (a) Each Revolving Loan shall be made as
part of a Borrowing consisting of Revolving Loans made by the Banks ratably in
accordance with their Commitments. Each Auction Loan shall be made in accordance
with the procedures set forth in Section 2.04. The failure of any Bank to make
any Loan required to be made hereunder shall not in itself relieve any other
Bank of its obligation to lend hereunder (it being understood, however, that no
Bank shall be responsible for the failure
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of any other Bank to make any Loan required to be made by such other Bank). The
Loans comprising each Borrowing shall be in an aggregate principal amount which
is an integral multiple of $1,000,000.
(b) Subject to Section 2.10, (i) each Revolving Borrowing shall
be comprised entirely of ABR Loans or Eurodollar Loans, as the Borrower may
request pursuant to Section 2.03, and (ii) each Auction Borrowing shall be
comprised entirely of Eurodollar Loans, Fixed Rate Loans or Delayed Fixed Rate
Loans as the Borrower may request in accordance with Section 2.04. Each Bank may
at its option fulfill its Commitment with respect to any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Bank to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement and the applicable Note. Borrowings of more than one Type or Class may
be outstanding at the same time; provided, however, that the Borrower shall not
be entitled to request any Borrowing which, if made, would result in an
aggregate of more than five separate Eurodollar Loans of any Bank being
outstanding hereunder at any one time. For purposes of the foregoing, Loans
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Loans.
(c) Subject to paragraph (e) below, each Bank shall make a
Revolving Loan in the amount of its pro rata portion, as determined under
Section 2.16, or, if an Auction Loan, in the relevant amount as determined under
Section 2.04, of each Borrowing hereunder on the proposed date thereof by wire
transfer of immediately available funds to the Agent in Houston, Texas, not
later than 2:00 p.m., New York City time, and the Agent shall by 3:00 p.m., New
York City time, make available to the Borrower in immediately available funds
the amounts so received (i) by wire transfer for credit to the account of the
Borrower with Seattle First National Bank, Account Number 13972-203; ABA #
12500002-4, or (ii) as otherwise specified by the Borrower in its notice of
Borrowing or, if a Borrowing shall not occur on such date because any condition
precedent herein specified shall not have been met, return the amounts so
received to the respective Banks. Unless the Agent shall have received notice
from a Bank prior to the date of any Borrowing that such Bank will not make
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available to the Agent such Bank's portion of such Borrowing, the Agent may
assume that such Bank has made such portion available to the Agent on the date
of such Borrowing in accordance with this paragraph (c) and the Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have made
such portion available to the Agent, such Bank and the Borrower severally agree
to repay to the Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available
to the Borrower until the date such amount is repaid to the Agent at (i) in the
case of the Borrower the interest rate applicable at the time to the Loans
comprising such Borrowing and (ii) in the case of such Bank, the Federal Funds
Effective Rate. If such Bank shall repay to the Agent such corresponding amount,
such amount shall constitute such Bank's Loan as part of such Borrowing for
purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the Expiration Date.
(e) The Borrower may refinance all or any part of any Borrowing
with a Borrowing of the same or a different Type or Class, subject to the
conditions and limitations set forth in this Agreement. Any Borrowing or part
thereof so refinanced shall be deemed to be repaid or prepaid in accordance with
Section 2.05 or 2.12, as applicable, with the proceeds of a new Borrowing, and
the proceeds of the new Borrowing, to the extent they do not exceed the
principal amount of the Borrowing being refinanced, shall not be paid by the
Banks to the Agent or by the Agent to the Borrower pursuant to paragraph (c)
above.
SECTION 2.03. Notice of Revolving Borrowings. To request a
Revolving Borrowing, the Borrower shall give the Agent written or telecopy
notice (or telephone notice promptly confirmed in writing or by telecopy) (a) in
the case of a Eurodollar Borrowing, not later than 10:00 a.m., New York City
time, three Business Days before a proposed borrowing and (b) in the case of an
ABR Borrowing, not later than 12:00 (noon), New York City time, the day of a
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proposed borrowing. Such notice shall be irrevocable and shall in each case
refer to this Agreement and specify (i) whether the Borrowing then being
requested is to be a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of
such Borrowing (which shall be a Business Day) and the amount thereof; and (iii)
if such Borrowing is to be a Eurodollar Borrowing, the Interest Period with
respect thereto. If no election as to the Type of Borrowing is specified in any
such notice, then the requested Borrowing shall be an ABR Borrowing. If no
Interest Period with respect to any Eurodollar Borrowing is specified in any
such notice, then the Borrower shall be deemed to have selected an Interest
Period of one month's duration. If the Borrower shall not have given notice in
accordance with this Section 2.03 of its election to refinance a Borrowing prior
to the end of the Interest Period in effect for such Borrowing, then the
Borrower shall (unless such Borrowing is repaid at the end of such Interest
Period) be deemed to have given notice of an election to refinance such
Borrowing with an ABR Borrowing. The Agent shall promptly advise the Banks of
any notice given pursuant to this Section 2.03 and of each Bank's portion of the
requested Borrowing.
SECTION 2.04. Auction Bid Procedure. (a) Subject to the terms and
conditions set forth herein, from time to time during the Availability Period
the Borrower may request Auction Bids and may (but shall not have any obligation
to) accept Auction Bids and borrow Auction Loans; provided that the sum of the
total Revolving Credit Exposure plus the aggregate principal amount of
outstanding Auction Loans at any time shall not exceed the total Commitments. To
request Auction Bids, the Borrower shall notify the Agent of such request by
telephone, in the case of a Eurodollar Borrowing, not later than 1:00 p.m., New
York City time, four Business Days before the date of the proposed Borrowing, in
the case of a Fixed Rate Borrowing, not later than 1:00 p.m., New York City
time, one Business Day before the date of the proposed Borrowing, or, in the
case of a Delayed Fixed Rate Borrowing, not later than 2:00 p.m., New York City
time, two Business Days before the date for the proposed Borrowing; provided
that the Borrower may submit up to (but not more than) (i) 1 Eurodollar Auction
Bid Request and (ii) 1 Fixed Rate Auction Bid Request or 1 Delayed Fixed Rate
Auction Bid Request on the same day.
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Each such telephonic Auction Bid Request shall be confirmed promptly by hand
delivery or telecopy to the Agent of a written Auction Bid Request in a form
approved by the Agent and signed by the Borrower. Each such telephonic and
written Auction Bid Request shall specify the following information in
compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing, a
Fixed Rate Borrowing, or a Delayed Fixed Rate Borrowing;
(iv) the Interest Period (or Interest Periods) to be applicable
to such Borrowing, which shall be a period contemplated by the
definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.02.
(b) Following receipt of an Auction Bid Request in accordance
with this Section, the Agent shall notify the Banks of the details thereof by
telecopy, inviting the Banks to submit Auction Bids in the case of a Eurodollar
Auction Bid Request, no later than 2:00 p.m., New York City time, four Business
Days before the proposed date of the Borrowing, in the case of a Fixed Rate
Auction Bid Request, no later than 2:00 p.m., one Business Day before the
proposed date of the Borrowing, and, in the case of a Delayed Fixed Rate Bid
Request, not later than 3:00 p.m., New York City time, two Business Days before
the proposed date of the Borrowing.
(c) Each Bank may (but shall not have any obligation to) make one
or more Auction Bids to the Borrower in response to an Auction Bid Request. Each
Auction Bid by a Bank must be in a form approved by the Agent and must be
received by the Agent by telephone, in the case of a Eurodollar Auction
Borrowing, not later than 12:00 (noon), New York City time, three Business Days
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before the proposed date of such Auction Borrowing, in the case of a Fixed Rate
Borrowing, not later than 10:30 a.m., New York City time, on the proposed date
of such Auction Borrowing, and, in the case of a Delayed Fixed Rate Bid, not
later than 12:00 (noon), New York City time, one Business Day before the
proposed date of such Auction Borrowing. Auction Bids that do not conform
substantially to the form approved by the Agent may be rejected by the Agent,
and the Agent shall notify the applicable Bank as promptly as practicable. Each
Auction Bid shall specify (i) the principal amount (which shall be an integral
multiple of $1,000,000 and which may equal the entire principal amount of the
Auction Borrowing requested by the Borrower) of the Auction Loan or Loans that
the Bank is willing to make, (ii) the Auction Bid Rate or Rates at which the
Bank is prepared to make such Loan or Loans (expressed as a percentage rate per
annum in the form of a decimal to no more than four decimal places) and (iii)
the Interest Period applicable to each such Loan and the last day thereof in
accordance with the Auction Bid Request.
(d) The Agent shall promptly notify the Borrower by telecopy of
the Auction Bid Rate and the principal amount specified in each Auction Bid and
the identity of the Bank that shall have made such Auction Bid.
(e) Subject only to the provisions of this paragraph, the
Borrower may accept or reject any Auction Bid. The Borrower shall notify the
Agent by telephone, confirmed by telecopy in a form approved by the Agent,
whether and to what extent it has decided to accept or reject each Auction Bid,
in the case of a Eurodollar Auction Borrowing, not later than 2:00 p.m., New
York City time, three Business Days before the date of the proposed Auction
Borrowing, in the case of a Fixed Rate Borrowing, not later than 11:30 a.m., New
York City time, on the proposed date of the Auction Borrowing, and, in the case
of a Delayed Fixed Rate Borrowing, not later than 1:00 p.m., New York City time,
one Business day before the date of the proposed Auction Borrowing; provided
that (i) the failure of the Borrower to give such notice shall be deemed to be a
rejection of each Auction Bid, (ii) the Borrower shall not accept an Auction Bid
made at a particular Auction Bid Rate if the Borrower rejects an Auction Bid
made at a lower Auction Bid Rate, (iii) the aggregate amount of the Auction Bids
accepted by the Borrower shall not exceed the
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aggregate amount of the requested Auction Borrowing specified in the related
Auction Bid Request, (iv) to the extent necessary to comply with clause (iii)
above, the Borrower may accept Auction Bids at the same Auction Bid Rate in
part, which acceptance, in the case of multiple Auction Bids at such Auction Bid
Rate, shall be made pro rata in accordance with the amount of each such Auction
Bid, and (v) except pursuant to clause (iv) above, no Auction Bid shall be
accepted for an Auction Loan unless such Auction Loan is in an integral multiple
of $1,000,000. A notice given by the Borrower pursuant to this paragraph shall
be irrevocable.
(f) The Agent shall notify each bidding Bank by telephone and
telecopy whether or not its Auction Bid has been accepted (and, if so, the
amount and Auction Bid Rate so accepted) in the case of Eurodollar Auction
Loans, by 3:00 p.m., New York City time, three Business Days before the
borrowing date, in the case of Fixed Rate Loans, by 12:00 (noon), New York City
time, on the borrowing date, and, in the case of Delayed Fixed Rate Loans, by
3:00 p.m., New York City time, one Business Day before the Borrowing Date. Each
successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Auction Loan in respect of which its Auction Bid
has been accepted.
(g) If the Agent shall elect to submit an Auction Bid in its
capacity as a Bank, it shall submit such Auction Bid directly to the Borrower at
least one quarter of an hour earlier than the time by which the other Banks are
required to submit their Auction Bids to the Agent pursuant to paragraph (b) of
this Section.
SECTION 2.05. Notes; Repayment of Loans. The Loans made by each
Bank shall be evidenced by a Note, duly executed on behalf of the Borrower,
dated the date of this Agreement, in substantially the form attached hereto as
Exhibit A, with the blanks appropriately filled, payable to the order of such
Bank in a principal amount equal to such Bank's Commitment. The outstanding
principal balance of each Revolving Loan and Auction Loan, as evidenced by such
a Note, shall be payable on the last day of the Interest Period applicable to
such Loan and on the Expiration Date. Each Note shall bear interest from the
date of the first borrowing hereunder on the outstanding principal balance
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thereof as set forth in Section 2.08. Each Bank shall, and is hereby authorized
by the Borrower to, endorse on the schedule attached to each Note delivered to
such Bank (or on a continuation of such schedule attached to such Note and made
a part thereof), or otherwise to record in such Bank's internal records, an
appropriate notation evidencing the date and amount of each Loan from such Bank,
each payment and prepayment of principal of any such Loan, each payment of
interest on any such Loan and the other information provided for on such
schedule; provided, however, that any such recordation shall be conclusive
absent manifest error and the failure of any Bank to make such a notation or any
error therein shall not affect the obligation of the Borrower to repay the Loans
made by such Bank in accordance with the terms of this Agreement and the
applicable Notes.
SECTION 2.06. Letters of Credit. (a) General. Subject to the
terms and conditions set forth herein, the Borrower may request the issuance of
Letters of Credit for its own account, in a form reasonably acceptable to the
Agent and the Issuing Bank, at any time and from time to time during the
Availability Period. In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form of letter
of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
and specifying the date of issuance, amendment, renewal or extension (which
shall be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the amount of such
Letter of Credit, the name and address of the beneficiary thereof and such other
information as shall
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be necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by the Issuing Bank, the Borrower also shall submit a letter of credit
application on the Issuing Bank's standard form in connection with any request
for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension (i) the LC
Exposure shall not exceed $25,000,000 and (ii) the sum of the total Revolving
Credit Exposure plus the aggregate principal amount of outstanding Auction Loans
shall not exceed the total Commitments.
(c) Expiration Date. Each Letter of Credit shall expire not later
than the close of business on the date that is five Business Days prior to the
Expiration Date.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Banks, the Issuing Bank
hereby grants to each Bank, and each Bank hereby acquires from the Issuing Bank,
a participation in such Letter of Credit equal to such Bank's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Bank hereby
absolutely and unconditionally agrees to pay to the Agent, for the account of
the Issuing Bank, such Bank's Applicable Percentage of each LC Disbursement made
by the Issuing Bank and not reimbursed by the Borrower on the date due as
provided in paragraph (e) of this Section, or of any reimbursement payment
required to be refunded to the Borrower for any reason to the extent received by
such Bank. Each Bank acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
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(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
LC Disbursement by paying to the Agent an amount equal to such LC Disbursement
not later than 12:00 (noon), New York City time, on (i) the Business Day that
the Borrower receives notice of such LC Disbursement, if such notice is received
prior to 10:00 a.m., New York City time, on the day of receipt, or (ii) the
Business Day immediately following the day that the Borrower receives such
notice, if such notice is not received prior to such time on the day of receipt;
provided that ,if such LC Disbursement is not less than $1,000,000, the Borrower
may, subject to the conditions to borrowing set forth herein, request in
accordance with Section 2.03 that such payment be financed with an ABR Revolving
Borrowing in an equivalent amount and, to the extent so financed, the Borrower's
obligation to make such payment shall be discharged and replaced by the
resulting ABR Revolving Borrowing. If the Borrower fails to make such payment
when due, the Agent shall notify each Bank of the applicable LC Disbursement,
the payment then due from the Borrower in respect thereof and such Bank's
Applicable Percentage thereof. Promptly following receipt of such notice, each
Bank shall pay to the Agent its Applicable Percentage of the payment then due
from the Borrower, in the same manner as provided in Section 2.02 with respect
to Loans made by such Bank (and Section 2.02 shall apply, mutatis mutandis, to
the payment obligations of the Banks), and the Agent shall promptly pay to the
Issuing Bank the amounts so received by it from the Banks. Promptly following
receipt by the Agent of any payment from the Borrower pursuant to this
paragraph, the Agent shall distribute such payment to the Issuing Bank or, to
the extent that Banks have made payments pursuant to this paragraph to reimburse
the Issuing Bank, then to such Banks and the Issuing Bank as their interests may
appear. Any payment made by a Bank pursuant to this paragraph to reimburse the
Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving
Loans as contemplated above) shall not constitute a Loan and shall not relieve
the Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse
LC Disbursements as provided in paragraph (e) of this Section shall be absolute,
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unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. Neither
the Agent, the Banks nor the Issuing Bank, nor any of their Related Parties,
shall have any liability or responsibility by reason of or in connection with
the issuance or transfer of any Letter of Credit or any payment or failure to
make any payment thereunder (irrespective of any of the circumstances referred
to in the preceding sentence), or any error, omission, interruption, loss or
delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the Issuing Bank;
provided that the foregoing shall not be construed to excuse the Issuing Bank
from liability to the Borrower to the extent of any direct damages (as opposed
to consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by the Issuing Bank's gross negligence or wilful misconduct. The
parties hereto expressly agree that, in the absence of gross negligence or
wilful misconduct on the part of the Issuing Bank (as finally determined by a
court of competent jurisdiction), the Issuing Bank shall be deemed to have
exercised care in each such determination. In furtherance of the foregoing and
without limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without
responsibility
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for further investigation, regardless of any notice or information to the
contrary, or refuse to accept and make payment upon such documents if such
documents are not in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Agent and the Borrower by telephone (confirmed by telecopy) of such
demand for payment and whether the Issuing Bank has made or will make an LC
Disbursement thereunder; provided that any failure to give or delay in giving
such notice shall not relieve the Borrower of its obligation to reimburse the
Issuing Bank and the Banks with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.09 shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment by
any Bank pursuant to paragraph (e) of this Section to reimburse the Issuing Bank
shall be for the account of such Bank to the extent of such payment.
(i) Cash Collateralization. If any Event of Default shall occur
and be continuing, on the Business Day that the Borrower receives notice from
the Agent, at the request of the Required Banks, demanding the deposit of cash
collateral pursuant to this paragraph, the Borrower shall deposit in an account
with the Agent, in the name of the Agent and for the benefit of the Banks, an
amount in cash equal to the LC Exposure as of such date plus any accrued and
unpaid interest thereon; provided that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become
immediately due and payable, without demand or other notice of any kind,
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upon the occurrence of any Event of Default with respect to the Borrower
described in clause (g) or (h) of Article VII. Such deposit shall be held by the
Agent as collateral for the payment and performance of the obligations of the
Borrower under this Agreement. The Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account. Other
than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the Agent and at the
Borrower's risk and expense, such deposits shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys in
such account shall be applied by the Agent to reimburse the Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or be applied to satisfy other
obligations of the Borrower under this Agreement. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence of
an Event of Default, such amount (to the extent not applied as aforesaid) shall
be returned to the Borrower within three Business Days after all Events of
Default have been cured or waived.
SECTION 2.07. Fees. (a) The Borrower agrees to pay to each Bank,
through the Agent, on the first Business Day of January, April, July and
October, in each year, and on the date on which the Commitment of such Bank
shall be terminated as provided herein, a commitment fee (a "Commitment Fee") on
the average daily unused amount of the Commitment of such Bank during the
preceding quarter (or shorter period commencing with the date hereof or ending
with the Expiration Date or the date on which the Commitment of such Bank shall
be terminated); provided, that, for purposes of determining the Commitment Fee,
the undrawn portion of the Commitments shall not be deemed to be reduced by the
amount of any borrowing under the Auction Facility. The Commitment Fees shall
accrue on each day at a rate per annum equal to the Applicable Rate in effect on
such day. All Commitment Fees shall be computed on the basis of the actual
number of days elapsed in a year of 365 or 366 days, as appropriate. The
Commitment Fee due to each Bank shall commence to accrue on the date of this
Agreement and shall cease to accrue on the date on which the Commitment of such
Bank shall be terminated as provided
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herein.
(b) The Borrower agrees to pay (i) to the Agent for the account
of each Bank a participation fee with respect to its participations in Letters
of Credit, which shall accrue at the Applicable Rate on the average daily amount
of such Bank's LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such Bank's
Commitment terminates and the date on which such Bank ceases to have any LC
Exposure, and (ii) to the Issuing Bank a fronting fee for Letters of Credit,
which shall accrue at the rate per annum of .125% on the average daily amount of
the LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date of termination of the Commitments and the date
on which there ceases to be any LC Exposure. Participation fees and fronting
fees accrued through and including the last day of March, June, September and
December of each year shall be payable on the first Business Day following such
last day, commencing on the first such date to occur after the Effective Date;
provided that all such fees shall be payable on the date on which the
Commitments terminate and any such fees accruing after the date on which the
Commitments terminate shall be payable on demand. Any other fees payable to the
Issuing Bank pursuant to this paragraph shall be payable within 10 days after
demand. All participation fees and fronting fees shall be computed on the basis
of a year of 365 or 366 days, as appropriate and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
(c) The Borrower agrees to pay to the Agent, for its own account,
the fees set forth in the engagement letter dated May 12, 1998, between the
Agent and the Borrower, at the times set forth therein (the "Agency Fees" and
the "Structuring Fee").
(d) The Borrower agrees to pay the Agent, for its own account,
$100 for each Auction Bid Request the Borrower makes, payable the day on which
the Auction Bid Request is made.
(e) All Fees shall be paid on the dates due, in immediately
available funds, to the Agent (or to the
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Issuing Bank, in the case of fees payable to it) for distribution, if and as
appropriate, among the Banks. Once paid, none of the Fees shall be refundable
under any circumstances.
SECTION 2.08. Interest on Loans. (a) Subject to the provisions of
Section 2.09, the Loans comprising each ABR Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 365
or 366 days, as the case may be) at a rate per annum equal to the Alternate Base
Rate plus the Applicable Rate.
(b) Subject to the provisions of Section 2.09, the Loans
comprising each Eurodollar Borrowing shall bear interest (computed on the basis
of the actual number of days elapsed over a year of 360 days) (i) in the case of
a Eurodollar Revolving Loan at a rate per annum equal to the Eurodollar Rate for
the Interest Period in effect for such Borrowing plus the Applicable Rate or
(ii) in the case of a Eurodollar Auction Loan, at the Eurodollar Rate for the
Interest Period in effect for such Borrowing plus the Margin applicable to such
Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan. Each Delayed Fixed Rate Loan shall bear interest at the
Delayed Fixed Rate applicable to such Loan.
(d) Interest on each Loan shall be payable on the Interest
Payment Dates applicable to such Loan except as otherwise provided in this
Agreement. The applicable Alternate Base Rate or Eurodollar Rate for each
Interest Period or day within an Interest Period, as the case may be, shall be
determined by the Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.09. Default Interest. If the Borrower shall default in
the payment of the principal of or interest on any Loan or any other amount
becoming due hereunder, by acceleration or otherwise, the Borrower shall on
demand from time to time pay interest, to the extent permitted by law, on such
defaulted amount up to (but not including) the date of actual payment (after as
well as before judgment) at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360
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days) equal to the Alternate Base Rate plus the Applicable Rate plus 2%.
SECTION 2.10. Alternate Rate of Interest. In the event, and on
each occasion, that on the day two Business Days prior to the commencement of
any Interest Period for a Eurodollar Borrowing the Agent shall have in good
faith determined that dollar deposits in the principal amounts of the Loans
comprising such Borrowing are not generally available in the London interbank
market, or that the rates at which such dollar deposits are being offered will
not adequately and fairly reflect the cost to the majority in interest of the
Banks of making or maintaining their Eurodollar Loans during such Interest
Period, or that reasonable means do not exist for ascertaining the Eurodollar
Rate, the Agent shall, as soon as practicable thereafter, give written or
telecopy notice of such determination to the Borrower and the Banks. In the
event of any such determination, (i) any request by the Borrower for a
Eurodollar Borrowing pursuant to Section 2.03 shall, until the Agent shall have
advised the Borrower and the Banks that the circumstances giving rise to such
notice no longer exist, be deemed to be a request for an ABR Borrowing and (ii)
any request by the Borrower for a Eurodollar Auction Borrowing shall be
ineffective; provided that (A) if the circumstances giving rise to such notice
do not affect all the Banks, then requests by Borrower for Eurodollar Auction
Borrowings may be made to Banks that are not affected thereby and (B) if the
circumstances giving rise to such notice affect only one Type of Borrowings,
then the other Type of Borrowings shall be permitted. Each determination by the
Agent hereunder shall be conclusive absent manifest error.
SECTION 2.11. Termination, Reduction and Extension of
Commitments. (a) The Commitments shall be automatically terminated on the
Expiration Date.
(b) Upon at least three Business Days' prior irrevocable written
or telecopy notice to the Agent, the Borrower may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the
unused portion of the Commitments; provided, however, that (i) each partial
reduction of the Commitments shall be in an integral multiple of $1,000,000 and
(ii) the Borrower shall not terminate or reduce the Commitments if, after giving
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effect to any concurrent prepayment of the Loans in accordance with Section
2.12, the sum of the Revolving Credit Exposure plus the aggregate principal
amount of outstanding Auction Loans would exceed the total Commitments.
(c) Each reduction in the Commitments hereunder shall be made
ratably among the Banks in accordance with their respective applicable
Commitments. The Borrower shall pay to the Agent for the account of the Banks,
on the date of each termination or reduction, the Commitment Fees on the amount
of the Commitments so terminated or reduced accrued through the date of such
termination or reduction.
(d) The Borrower may request an extension of this Agreement upon
60 days' prior written notice to the Agent; provided, that, such extension will
be at the sole option of the Banks and will require the written agreement of
each Bank in order to become effective.
SECTION 2.12. Prepayment. (a) The Borrower shall have the right
at any time and from time to time to prepay any Borrowing, in whole or in part,
upon at least three Business Days' prior written or telecopy notice (or
telephone notice promptly confirmed by written or telecopy notice) to the Agent;
provided, however, that each partial prepayment shall be in an amount which is
an integral multiple of $1,000,000, and that the Borrower shall not have the
right to prepay any Auction Loan without the prior consent of the Bank thereof.
(b) On the date of any termination or reduction of the
Commitments pursuant to Section 2.11, the Borrower shall pay or prepay so much
of the Borrowings as shall be necessary in order that the aggregate principal
amount of the Revolving Credit Exposure plus the aggregate principal amount of
Auction Loans outstanding will not exceed the aggregate Commitments after giving
effect to such termination or reduction.
(c) Each notice of prepayment shall specify the prepayment date
and the principal amount of each Borrowing (or portion thereof) to be prepaid,
shall be irrevocable and shall commit the Borrower to prepay such Borrowing by
the amount stated therein on the date stated therein. All prepayments under this
Section 2.12 shall be subject to
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Section 2.15 but otherwise without premium or penalty. All prepayments under
this Section 2.12 shall be accompanied by accrued interest on the principal
amount being prepaid to the date of payment.
SECTION 2.13. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision herein, if after the date of this Agreement
there is adopted any new law, rule or regulation or any change in applicable law
or regulation or in the interpretation or administration thereof by any
governmental authority charged with the interpretation or administration thereof
(whether or not having the force of law) which shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of or credit extended by such Bank (except
any such reserve requirement which is reflected in the Eurodollar Rate) or shall
impose on such Bank or the London interbank market any other condition affecting
this Agreement or Eurodollar Loans made by such Bank, and the result of any of
the foregoing shall be to increase the cost to such Bank of making or
maintaining any Eurodollar Loan or to reduce the amount of any sum received or
receivable by such Bank hereunder or under the Notes (whether of principal,
interest or otherwise) in respect of Eurodollar Loans by an amount deemed by
such Bank to be material, then the Borrower will pay to such Bank upon demand
such additional amount or amounts as will compensate such Bank for such
additional costs incurred or reduction suffered.
(b) If any Bank shall have determined that the applicability of
any law, rule, regulation, agreement or guideline adopted after the date hereof
regarding capital adequacy, or any change in any of the foregoing or the
adoption after the date hereof of any change in any law, rule, regulation,
agreement or guideline existing on the date hereof or in the interpretation or
administration of any of the foregoing by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or any lending office of such Bank) or any
Bank's holding company with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Bank's capital or on the capital of such Bank's
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holding company, if any, as a consequence of this Agreement or the Loans made by
such Bank pursuant hereto to a level below that which such Bank or such Bank's
holding company could have achieved but for such applicability, adoption, change
or compliance (taking into consideration such Bank's policies and the policies
of such Bank's holding company with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time the Borrower shall
pay to such Bank such additional amount or amounts as will compensate such Bank
or such Bank's holding company for any such reduction suffered.
(c) A certificate of each Bank setting forth in reasonable detail
such amount or amounts as shall be necessary to compensate such Bank or its
holding company as specified in paragraph (a) or (b) above, as the case may be,
and the manner in which such Bank has determined the same, shall be delivered to
the Borrower and shall be conclusive absent manifest error. The Borrower shall
pay each Bank the amount shown as due on any such certificate delivered by it
within 10 days after its receipt of the same.
(d) Failure on the part of any Bank to demand compensation for
any increased costs or reduction in amounts received or receivable or reduction
in return on capital with respect to any period shall not constitute a waiver of
such Bank's right to demand compensation with respect to such period or any
other period. The protection of this Section shall be available to each Bank
regardless of any possible contention of the invalidity or inapplicability of
the law, rule, regulation, guideline or other change or condition which shall
have occurred or been imposed.
SECTION 2.14. Change in Legality. (a) Notwithstanding any other
provision herein, if any change in, or adoption of, any law or regulation or in
the interpretation thereof by any governmental authority charged with the
administration or interpretation thereof shall make it unlawful for any Bank to
make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written notice
to the Borrower and to the Agent, such Bank may:
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(i) declare that Eurodollar Loans will not there after be made
by such Bank hereunder, whereupon any request by the Borrower for a
Eurodollar Borrowing shall, as to such Bank only, be deemed a request
for an ABR Loan unless such declaration shall be subsequently withdrawn;
and
(ii) require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall
be automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below.
In the event any Bank shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Bank or the
converted Eurodollar Loans of such Bank shall instead be applied to repay the
ABR Loans made by such Bank in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice to the Borrower
by any Bank shall be effective as to each Eurodollar Loan, if lawful, on the
last day of the Interest Period currently applicable to such Eurodollar Loan.
SECTION 2.15. Indemnity. The Borrower shall indemnify each Bank
against any loss or expense which such Bank may sustain or incur as a
consequence of (a) any failure by the Borrower to fulfill on the date of any
Eurodollar Borrowing hereunder the applicable conditions set forth in Article
IV, (b) any failure by the Borrower to borrow or to refinance any Eurodollar
Loan hereunder after irrevocable notice of such borrowing or refinancing has
been given pursuant to Sections 2.03 and 2.04, (c) any payment or prepayment of
a Eurodollar Loan required by any other provision of this Agreement or otherwise
made or deemed made on a date other than the last day of the Interest Period
applicable thereto or (d) any default in payment or prepayment of the principal
amount of any Eurodollar Loan or any part thereof or interest accrued thereon,
as and when due and payable (at the due date thereof, whether by scheduled
maturity, acceleration, irrevocable notice of prepayment or otherwise)
including, in each such case, any loss or reasonable expense sustained or
incurred or to be sustained or incurred in liquidating
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or employing deposits from third parties acquired to effect or maintain such
Loan or any part thereof as a Eurodollar Loan. Such loss or reasonable expense
shall include an amount equal to the excess, if any, as reasonably determined by
such Bank, of (i) its cost of obtaining the funds for the Eurodollar Loan being
paid, prepaid, converted or not borrowed (assumed to be the Eurodollar Rate
applicable thereto) for the period from the date of such payment, prepayment,
conversion or failure to borrow to the last day of the Interest Period for such
Loan (or, in the case of a failure to borrow, the Interest Period for such
Eurodollar Loan which would have commenced on the date of such failure) over
(ii) the amount of interest (as reasonably determined by such Bank) that would
be realized by such Bank in reemploying the funds so paid, prepaid or not
borrowed for such period or Interest Period, as the case may be. A certificate
of any Bank setting forth any amount or amounts which such Bank is entitled to
receive pursuant to this Section, and the manner in which such Bank has
determined the same, shall be delivered to the Borrower and shall be conclusive
absent manifest error.
SECTION 2.16. Pro Rata Treatment. Except as required under
Sections 2.04 and 2.14, each Borrowing, each payment or prepayment of principal
of any Borrowing, each payment of interest on the Loans, each payment of the
Commitment Fees, each reduction of the Commitments and each refinancing of any
Borrowing with a Borrowing of any Type shall be allocated pro rata among the
Banks in accordance with their respective applicable Commitments (or, if such
Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their outstanding Loans). Each Bank agrees that
in computing such Bank's portion of any Borrowing to be made hereunder, the
Agent may, in its discretion, round each Bank's percentage of such Borrowing,
computed in accordance with Section 2.01, to the next higher or lower whole
dollar amount.
SECTION 2.17. Sharing of Setoffs. Each Bank agrees that if it
shall, through the exercise of a right of banker's lien, setoff or counterclaim
against the Borrower, or pursuant to a secured claim under Section 506 of Title
11 of the United States Code or other security or interest arising from, or in
lieu of, such secured claim, received by such Bank under any applicable
bankruptcy,
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insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Revolving Loan or Revolving
Loans or participations in LC Disbursements as a result of which the unpaid
principal portion of its Revolving Loans or participations in LC Disbursements
shall be proportionately less than the unpaid principal portion of the Revolving
Loans or participations in LC Disbursements of any other Bank, it shall be
deemed simultaneously to have purchased from such other Bank at face value, and
shall promptly pay to such other Bank the purchase price for, a participation in
the Revolving Loans or participations in LC Disbursements of such other Bank, so
that the aggregate unpaid principal amount of the Revolving Loans and
participations in Revolving Loans and in LC Disbursements held by each Bank
shall be in the same proportion to the aggregate unpaid principal amount of all
Revolving Loans and participations in LC Disbursements then outstanding as the
principal amount of its Revolving Loans and participations in LC Disbursements
prior to such exercise of banker's lien, setoff or counterclaim or other event
was to the principal amount of all Revolving Loans and participations in LC
Disbursements outstanding prior to such exercise of banker's lien, setoff or
counter-claim or other event; provided, however, that, if any such purchase or
purchases or adjustments shall be made pursuant to this Section and the payment
giving rise thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the purchase
price or prices or adjustment restored without interest. The Borrower expressly
consents to the foregoing arrangements and agrees that any Bank holding a
participation in a Revolving Loan or in an LC Disbursement deemed to have been
so purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by the Borrower to such
Bank by reason thereof as fully as if such Bank had made a Loan directly to the
Borrower in the amount of such participation.
SECTION 2.18. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or reimbursements of LC
Disbursements or any Fees or other amounts) hereunder and under any other Loan
Document not later than 12:00 (noon), New York City time, on the date when due
in dollars to the Agent at its offices
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at ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, in immediately available funds.
(b) Whenever any payment (including principal of or interest on
any Borrowing or reimbursements of LC Disbursements or any Fees or other
amounts) hereunder or under any other Loan Document shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment may be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of interest or Fees, if applicable.
SECTION 2.19. Taxes. (a) Any and all payments by the Borrower
hereunder shall be made, in accordance with Section 2.18, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding taxes imposed on the net income of the Agent, any Bank or the Issuing
Bank (or any transferee or assignee thereof, including a participation holder
(any such entity being called a "Transferee")) and franchise taxes imposed on
the Agent, any Bank or the Issuing Bank (or Transferee) by the United States or
any jurisdiction under the laws of which the Agent, any such Bank or the Issuing
Bank (or such Transferee) or the applicable lending office, is organized or any
political subdivision thereof (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder to the Banks or the Issuing Bank (or
any Transferee) or the Agent, (i) the sum payable shall be increased by the
amount necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.19) such
Bank or the Issuing Bank (or such Transferee) or the Agent (as the case may be)
shall receive an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxing authority or
other Governmental Authority in accordance with applicable law; provided,
however, that no Transferee of any Bank shall be entitled to receive any greater
payment under this paragraph (a) than such Bank would have been entitled to
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receive with respect to the rights assigned, participated or other wise
transferred unless such assignment, participation or transfer shall have been
made at a time when the circumstances giving rise to such greater payment did
not exist.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Bank (or Transferee), the
Issuing Bank (or Transferee) and the Agent for the full amount of Taxes and
Other Taxes paid by such Bank (or such Transferee), the Issuing Bank (or such
Transferee) or the Agent, as the case may be, and any liability (including
penalties, interest and reasonable expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted by the relevant taxing authority or other Governmental Authority. Such
indemnification shall be made within 30 days after the date any Bank or the
Issuing Bank (or Transferee) or the Agent, as the case may be, makes written
demand therefor. If a Bank or the Issuing Bank (or Transferee) or the Agent
shall become aware that it is entitled to receive a refund in respect of Taxes
or Other Taxes as to which it has been indemnified by the Borrower pursuant to
this Section 2.19, it shall promptly notify the Borrower of the availability of
such refund and shall, within 30 days after receipt of a request by the
Borrower, apply for such refund at the Borrower's expense. If any Bank or the
Issuing Bank (or Transferee) or the Agent receives a refund in respect of any
Taxes or Other Taxes as to which it has been indemnified by the Borrower
pursuant to this Section 2.19, it shall promptly notify the Borrower of such
refund and shall repay such refund to the Borrower (to the extent of amounts
that have been paid by the Borrower under this Section 2.19 with respect to such
refund) within 30 days (or promptly upon receipt, if the Borrower has requested
application for such refund pursuant hereto), net of all reasonable
out-of-pocket expenses of such Bank and without interest; provided that the
Borrower, upon the request of such Bank or the Issuing Bank (or such
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Transferee) or the Agent, agrees to return such refund (plus penalties, interest
or other charges) to such Bank or the Issuing Bank (or such Transferee) or the
Agent in the event such Bank or the Issuing Bank (or such Transferee) or the
Agent is required to repay such refund. Nothing contained in this paragraph (c)
shall require any Bank or the Issuing Bank (or Transferee) or the Agent to make
available any of its tax returns (or any other information relating to its taxes
which it deems to be confidential); provided that Borrower, at its expense,
shall have the right to receive an opinion from a firm of independent public
accountants of recognized national standing acceptable to the Borrower that the
amount due hereunder is correctly calculated.
(d) Within 30 days after the date of any payment of Taxes or
Other Taxes withheld by the Borrower in respect of any payment to any Bank or
the Issuing Bank (or Transferee) or the Agent, the Borrower will furnish to the
Agent, at its address referred to in Section 9.01, the original or a certified
copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.19
shall survive the payment in full of the principal of and interest on all Loans
made hereunder.
(f) On or prior to the execution of this Agreement and on or
before the transfer to a Transferee, the Agent shall notify the Borrower of each
Bank's or the Issuing Bank's (or Transferee's) address. On or prior to the
Banks' or the Issuing Bank's (or Transferee's) first Interest Payment Date, and
from time to time as required by law, each Bank or the Issuing Bank (or
Transferee) that is organized under the laws of a jurisdiction outside the
United States shall, if legally able to do so, deliver to the Borrower and the
Agent such certificates, documents or other evidence, as required by the Code or
Treasury Regulations issued pursuant thereto, including Internal Revenue Service
Form 1001 or Form 4224 and any other certificate or statement of exemption
required by Treasury Regulation Section 1.1441-1, 1.1441-4 or 1.1441-6(c) or any
subsequent version thereof or successors thereto, properly completed and duly
executed by such Bank or such Issuing
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Bank (or Transferee) establishing that such payment is (i) not subject to United
States Federal withholding tax under the Code because such payment is
effectively connected with the conduct by such Bank or such Issuing Bank (or
Transferee) of a trade or business in the United States or (ii) totally exempt
from United States Federal withholding tax, or subject to a reduced rate of such
tax under a provision of an applicable tax treaty. Unless the Borrower and the
Agent have received forms or other documents satisfactory to them indicating
that such payments hereunder or under the Notes are not subject to United States
Federal withholding tax or are subject to such tax at a rate reduced by an
applicable tax treaty, the Borrower shall withhold taxes from such payments at
the applicable statutory rate.
(g) The Borrower shall not be required to pay any additional
amounts to any Bank or the Issuing Bank (or Transferee) in respect of United
States Federal withholding tax pursuant to paragraph (a) above if the obligation
to pay such additional amounts would not have arisen but for a failure by such
Bank or such Issuing Bank (or Transferee) to comply with the provisions of
paragraph (f) above; provided, however, that the Borrower shall be required to
pay those amounts to any Bank or the Issuing Bank (or Transferee) that it was
required to pay hereunder prior to the failure of such Bank or such Issuing Bank
(or Transferee) to comply with the provisions of such paragraph (f).
SECTION 2.20. Termination or Assignment of Commitments Under
Certain Circumstances. (a) Any Bank or the Issuing Bank (or Transferee) claiming
any additional amounts payable pursuant to Section 2.13 or Section 2.19 or
exercising its rights under Section 2.14 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any certificate or
document requested by the Borrower or to change the jurisdiction of its
applicable lending office if the making of such a filing or change would avoid
the need for or reduce the amount of any such additional amounts which may
thereafter accrue or avoid the circumstances giving rise to such exercise and
would not, in the sole determination of such Bank or such Issuing Bank, be
otherwise disadvantageous to such Bank or such Issuing Bank (or Transferee).
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(b) In the event that any Bank shall have delivered a notice or
certificate pursuant to Section 2.13 or 2.14, or the Borrower shall be required
to make additional payments under Section 2.19 to any Bank or the Issuing Bank
(or Transferee) or to the Agent with respect to any Bank or the Issuing Bank (or
Transferee), the Borrower shall have the right, at its own expense, upon notice
to such Bank or the Issuing Bank (or Transferee) and the Agent (and, if a
Commitment is being assigned, the Issuing Bank), (a) to terminate the Commitment
of such Bank or such Issuing Bank (or Transferee) or (b) to require such Bank or
the Issuing Bank (or Transferee) to transfer and assign without recourse (in
accordance with and subject to the restrictions contained in Section 9.04) all
its interests, rights and obligations under this Agreement (other than any
outstanding Auction Loans) to another financial institution which shall assume
such obligations; provided that (i) no such termination or assignment shall
conflict with any law, rule or regulation or order of any Governmental Authority
and (ii) the Borrower or the assignee, as the case may be, shall pay to the
affected Bank or the Issuing Bank (or Transferee) in immediately available funds
on the date of such termination or assignment the principal of and interest
accrued to the date of payment on the Loans made by it hereunder and all other
amounts accrued for its account or owed to it hereunder and, in the case of a
termination or assignment by the Issuing Bank, shall cause all Letters of Credit
to be surrendered for cancelation on or prior to the date of such termination or
assignment.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each of the Banks that:
SECTION 3.01. Organization; Powers. Each of the Borrower and the
Significant Subsidiaries (a) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, (b)
has all requisite power and authority to own its property and assets and to
carry on its business as now conducted and as proposed to be conducted, (c) is
qualified to do business in every jurisdiction where such qualification is
required, except where the failure so to
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qualify would not result in a Material Adverse Effect, and (d) in the case of
the Borrower, has the corporate power and authority to execute, deliver and
perform its obligations under each of the Loan Documents and each other
agreement or instrument contemplated thereby to which it is or will be a party
and to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and
performance by the Borrower of each of the Loan Documents and the borrowings
hereunder (collectively, the "Transactions") (a) have been duly authorized by
all requisite corporate and, if required, stockholder action and (b) will not
(i) violate (A) any provision of law, statute, rule or regulation the violation
of which could reasonably be expected to impair the validity and enforceability
of this Agreement or any other Loan Document or materially impair the rights of
or benefits available to the Banks under the Loan Documents, or of the
certificate or articles of incorporation or other constitutive documents or
by-laws of the Borrower or any Significant Subsidiary, (B) any order of any
Governmental Authority the violation of which could reasonably be expected to
impair the validity or enforce ability of this Agreement or any other Loan
Document, or materially impair the rights of or benefits available to the Banks
under the Loan Documents, or (C) any provision of any indenture or other
material agreement or instrument evidencing or relating to borrowed money to
which the Borrower or any Significant Subsidiary is a party or by which any of
them or any of their property is or may be bound in a manner which could
reasonably be expected to impair the validity and enforceability of this
Agreement or any other Loan Document or materially impair the rights of or
benefits available to the Banks under the Loan Documents, (ii) be in conflict
with, result in a breach of or constitute (alone or with notice or lapse of time
or both) a default under any such indenture, agreement or other instrument in a
manner which could reasonably be expected to impair the validity and
enforceability of this Agreement or any other Loan Document or materially impair
the rights of or benefits available to the Banks under the Loan Documents or
(iii) result in the creation or imposition under any such indenture, agreement
or other instrument of any Lien upon or with respect to any property or assets
now owned or hereafter acquired by the Borrower.
SECTION 3.03. Enforceability. This Agreement
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has been duly executed and delivered by the Borrower and constitutes, and each
other Loan Document when executed and delivered by the Borrower will constitute,
a legal, valid and binding obligation of the Borrower enforceable against the
Borrower in accordance with its terms.
SECTION 3.04. Governmental Approvals. No action, consent or
approval of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except
such as have been made or obtained and are in full force and effect.
SECTION 3.05. Financial Statements. The Borrower has heretofore
furnished to the Banks its consolidated balance sheets and statements of income
and statements of cash flow as of and for the fiscal year ended December 31,
1997, audited by and accompanied by the opinion of Deloitte & Touche,
independent public accountants. Such financial statements present fairly the
financial condition and results of operations of the Borrower and its
consolidated subsidiaries as of such dates and for such periods. Such balance
sheets and the notes thereto, together with the Borrower's Annual Report on Form
10-K for the fiscal year ended December 31, 1997, reflect all liabilities,
direct or contingent, of the Borrower and its consolidated Subsidiaries as of
the dates thereof which are material on a consolidated basis. Such financial
statements were prepared in accordance with GAAP applied (except as noted
therein) on a consistent basis.
SECTION 3.06. No Material Adverse Change. Except as disclosed in
the Borrower's Annual Report on Form 10-K for the fiscal year ended December 31,
1997 and in the Borrower's Form 10-Q for the fiscal quarter ended March 31,
1998, there has been no change in the business, assets, operations or financial
condition of the Borrower and the Subsidiaries, taken as a whole, since December
31, 1997, which could reasonably be expected to have a material adverse effect
on the creditworthiness of the Borrower.
SECTION 3.07. Litigation; Compliance with Laws. (a) Except as set
forth in the Annual Report of the Borrower on Form 10-K for the year ended
December 31, 1997, or in any document filed prior to the date of this Agreement
pursuant to Sections 13(a), 14 or 15(d) of the
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Securities Exchange Act of 1934, there are not any actions, suits or proceedings
at law or in equity or by or before any Governmental Authority now pending or,
to the knowledge of the Borrower, threatened against or affecting the Borrower
or any Subsidiary or any business, property or rights of any such person (i)
which involve any Loan Document or the Transactions or (ii) which could
reasonably be anticipated, individually or in the aggregate, to result in a
Material Adverse Effect.
(b) Neither the Borrower nor any of the Subsidiaries is in
violation of any law, rule or regulation, or in default with respect to any
judgment, writ, injunction or decree of any Governmental Authority, where such
violation or default would be reasonably likely to result in a Material Adverse
Effect.
SECTION 3.08. Federal Reserve Regulations. (a) Neither the
Borrower nor any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
(b) No part of the proceeds of any Loan or Letter of Credit will
be used, whether directly or indirectly, and whether immediately, incidentally
or ultimately, (i) to purchase or carry Margin Stock or to extend credit to
others for the purpose of purchasing or carrying Margin Stock or to refund
indebtedness originally incurred for such purpose, or (ii) for any purpose which
entails a violation of, or which is inconsistent with, the provisions of the
Regulations of the Board, including Regulation U or X.
SECTION 3.09. Investment Company Act; Public Utility Holding
Company Act. The Borrower is not (a) an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940 or (b) subject
to regulation as a "holding company" under the Public Utility Holding Company
Act of 1935.
SECTION 3.10. Use of Proceeds and Letters of Credit. The Borrower
will use the proceeds of the Loans and the Letters of Credit only for the
purposes specified in the preamble to this Agreement.
SECTION 3.11. No Material Misstatements. No
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information, report, financial statement, exhibit or schedule furnished by or on
behalf of the Borrower to the Agent, the Issuing Bank or any Bank in connection
with the negotiation of any Loan Document or included therein or delivered
pursuant thereto contained, contains or will contain any material misstatement
of fact or, when considered together with all reports theretofore filed with the
Securities and Exchange Commission, omitted, omits or will omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were, are or will be made, not misleading.
SECTION 3.12. Employee Benefit Plans. Each of the Borrower and
its ERISA Affiliates is in compliance in all material respects with the
applicable provisions of ERISA and the regulations and published interpretations
thereunder. No Reportable Event has occurred as to which the Borrower or any
ERISA Affiliate was required to file a report with the PBGC, and the present
value of all benefit liabilities under each Plan (based on those assumptions
used to fund such Plan) did not, as of the last annual valuation date applicable
thereto, exceed by more than $10,000,000 the value of the assets of such Plan.
SECTION 3.13. Environmental and Safety Matters. Each of the
Borrower and each Subsidiary has complied with all Federal, state, local and
other statutes, ordinances, orders, judgments, rulings and regulations relating
to environmental pollution or to environmental or nuclear regulation or control
or to employee health or safety, except where noncompliance would not be
reasonably likely to result in a Material Adverse Effect. Neither the Borrower
nor any Subsidiary has received notice of any failure so to comply, except where
noncompliance would not be reasonably likely to result in a Material Adverse
Effect. The Borrower's and the Subsidiaries' plants do not manage any hazardous
wastes, hazardous substances, hazardous materials, toxic substances, toxic
pollutants or substances similarly denominated, as those terms or similar terms
are used in the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response Compensation and Liability Act, the Hazardous Materials
Transportation Act, the Toxic Substance Control Act, the Clean Air Act, the
Clean Water Act or any other applicable law relating to environmental pollution
or employee health and safety, or any nuclear fuel or other radioactive
materials, in
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violation of any law or any regulations promulgated pursuant thereto, where such
violation would be reasonably likely to result in a Material Adverse Effect. The
Borrower is aware of no events, conditions or circumstances involving
environmental pollution or contamination or employee health or safety that could
reasonably be expected to result in a Material Adverse Effect. The
representations and warranties set forth in this Section 3.13 are, however,
subject to any matters, circumstances or events set forth in the Borrower's
Annual Report on Form 10-K for the fiscal year ended December 31, 1997 and in
the Borrower's Form 10-Q for the fiscal quarter ended March 31, 1998; provided,
however, that the inclusion of such matters, circumstances or events as
exceptions (or any other exceptions contained in the representations and
warranties which refer to the Borrower's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997 or the Borrower's Form 10-Q for the fiscal
quarter ended March 31, 1998) shall not be construed to mean that the Borrower
has concluded that any such matter, circumstance or effect is likely to result
in a Material Adverse Effect.
SECTION 3.14. Significant Subsidiaries. Schedule 3.14 sets forth
as of the date hereof a list of all Significant Subsidiaries of the Borrower and
the percentage ownership interest of the Borrower therein.
SECTION 3.15. Year 2000 Compliance. The Borrower and each
Significant Subsidiary has a) initiated a review and assessment of all areas
within its and each of its Significant Subsidiaries' business and operations
(including those mission critical suppliers and vendors) that could be adversely
affected by the "Year 2000 Problem" (that is, the risk that computer
applications used by the Borrower or any of its Significant Subsidiaries may be
unable to recognize and perform properly date-sensitive functions involving
certain dates prior to and any date after December 31, 1999) and (b) developed a
plan and timeline for addressing the Year 2000 Problem on a timely basis, and,
as of the date of this Agreement, is implementing that plan in accordance with
that timetable. The Borrower and each Significant Subsidiary reasonably believes
that all computer applications that are material to its or any of its
Significant Subsidiaries' business and operations will on a timely basis be able
to perform properly date-sensitive functions for all dates before and
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after January 1, 2000 (that is, be "Year 2000 Compliant"), except to the extent
that a failure to do so could not reasonably be expected to have a Material
Adverse Effect.
ARTICLE IV. CONDITIONS OF LENDING
The obligations of the Banks to make Loans and of the Issuing
Bank to issue, amend, renew, or extend Letters of Credit, hereunder are subject
to the satisfaction of the following conditions:
SECTION 4.01. All Borrowings. On the date of each Borrowing or
issuance, renewal, extension or amending of a Letter of Credit, including each
Borrowing in which Loans are refinanced with new Loans as contemplated by
Section 2.02(e):
(a) The Agent shall have received a notice of such Borrowing as
required by Section 2.03.
(b) The representations and warranties set forth in Article III
hereof (except, in the case of a refinancing of Loans or the issuance,
amendment, renewal or extension of a Letter of Credit or the refinancing
of a LC Disbursement that does not increase the sum of the Revolving
Credit Exposure, LC Disbursements and the Auction Loans of any Bank
outstanding, the representations set forth in Sections 3.06 and 3.07)
shall be true and correct in all material respects on and as of the date
of such Borrowing or the date of issuance, amendment, renewal or
extension of such Letter of Credit with the same effect as though made
on and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date.
(c) The Borrower shall be in compliance with all the terms and
provisions set forth herein and in each other Loan Document on its part
to be observed or performed, and at the time of and immediately after
such Borrowing or the date of issuance, amendment, renewal or extension
of such Letter of Credit no Event of Default or Default shall have
occurred and be continuing.
Each Borrowing and issuance, amendment, renewal or
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extension of such Letter of Credit shall be deemed to constitute a
representation and warranty by the Borrower on the date of such Borrowing as to
the matters specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. First Borrowing. On the date of this Agreement:
(a) Each Bank shall have received a duly executed Note complying
with the provisions of Section 2.05.
(b) The Agent shall have received favorable written opinions of
(i) Paine, Hamblen, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, general counsel for the
Borrower, and (ii) ▇▇▇▇ & Priest, special counsel to the Borrower, each
dated the date of this Agreement and addressed to the Banks, to the
effect set forth in Exhibits D-1 and D-2 hereto, and the Borrower hereby
instructs such counsel to deliver such opinions to the Agent.
(c) The Agent shall have received evidence satisfactory to it
and set forth on Schedule 4.02(c) that the Borrower shall have obtained
all consents and approvals of, and shall have made all filings and
registrations with, any Governmental Authority required in order to
consummate the Transactions, in each case without the imposition of any
condition which, in the judgment of the Banks, could adversely affect
their rights or interests hereunder.
(d) All legal matters incident to this Agreement and the
borrowings hereunder shall be satisfactory to the Banks and their
counsel and to Cravath, Swaine & ▇▇▇▇▇, counsel for the Agent.
(e) The Agent shall have received (i) a copy of the certificate
or articles of incorporation, including all amendments thereto, of the
Borrower, certified as of a recent date by the Secretary of State of the
state of its organization, and a certificate as to the good standing of
the Borrower as of a recent date, from such Secretary of State; (ii) a
certificate of the Secretary or Assistant Secretary of the Borrower
dated the Closing Date and certifying (A) that attached thereto is a
true and complete copy
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of the by-laws of the Borrower as in effect on the Closing Date and at
all times since a date prior to the date of the resolutions described in
clause (B) below, (B) that attached thereto is a true and complete copy
of resolutions duly adopted by the Board of Directors of the Borrower
authorizing the execution, delivery and performance of the Loan
Documents and the borrowings hereunder, and that such resolutions have
not been modified, rescinded or amended and are in full force and
effect, (C) that the certificate or articles of incorporation of the
Borrower have not been amended since the date of the last amendment
thereto shown on the certificate of good standing furnished pursuant to
clause (i) above, and (D) as to the incumbency and specimen signature of
each officer executing any Loan Document or any other document delivered
in connection herewith on behalf of the Borrower; (iii) a certificate of
another officer as to the incumbency and specimen signature of the
Secretary or Assistant Secretary executing the certificate pursuant to
(ii) above; and (iv) such other documents as the Banks or their counsel
or Cravath, Swaine & ▇▇▇▇▇, counsel for the Agent, may reasonably
request.
(f) The Agent shall have received a certificate, dated the
Closing Date and signed by a Financial Officer of the Borrower,
confirming compliance with the conditions precedent set forth in
paragraphs (b) and (c) of Section 4.01.
(g) The Agent shall have received evidence satisfactory to it
that confirms the cancelation of the $50,000,000 and $70,000,000 Credit
Facilities.
(h) The Agent shall have received all Fees and other amounts due
and payable on or prior to the date of this Agreement.
ARTICLE V. AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Bank and with the
Issuing Bank that so long as this Agreement shall remain in effect or the
principal of or interest on any Loan, any Fees or any other expenses, any LC
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Disbursement or amounts payable under any Loan Document shall be unpaid or any
Letter of Credit remains outstanding, unless the Required Banks shall otherwise
consent in writing, the Borrower will:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or
cause to be done all things necessary to preserve, renew and keep in full force
and effect its legal existence, except as otherwise expressly permitted under
Section 6.02.
(b) Do or cause to be done all things necessary to obtain,
preserve, renew, extend and keep in full force and effect the rights, licenses,
permits, franchises, authorizations, patents, copyrights, trademarks and trade
names utilized in the conduct of the Borrower's business except where the
failure so to obtain, preserve, renew, extend or maintain any of the foregoing
would not result in a Material Adverse Effect; maintain and operate such
business in substantially the manner in which it is presently conducted and
operated, except as otherwise expressly permitted under this Agreement; comply
in all material respects with all applicable laws, rules, regulations and orders
of any Governmental Authority, whether now in effect or hereafter enacted if
failure to comply with such requirements would result in a Material Adverse
Effect; and at all times maintain and preserve all property material to the
conduct of such business and keep such property in good repair, working order
and condition and from time to time make, or cause to be made, all needful and
proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith may be
properly conducted at all times; provided, however, that the Borrower may cause
the discontinuance of the operation or a reduction in the capacity of any of its
facilities, or any element or unit thereof including, without limitation, real
and personal properties, facilities, machinery and equipment, (i) if, in the
judgment of the Borrower, it is no longer advisable to operate the same, or to
operate the same at its former capacity, and such discontinuance or reduction
would not result in a Material Adverse Effect, or (ii) if the Borrower intends
to sell and dispose of its interest in the same in accordance with the terms of
this Agreement and within a reasonable time shall endeavor to effectuate the
same.
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SECTION 5.02. Insurance. (a) Maintain insurance, to such extent
and against such risks, as is customary with companies in the same or similar
businesses and owning similar properties in the same general area in which the
Borrower operates and (b) maintain such other insurance as may be required by
law. All insurance required by this Section 5.02 shall be maintained with
financially sound and reputable insurers or through self-insurance; provided,
however, that the portion of such insurance constituting self-insurance shall be
comparable to that usually maintained by companies engaged in the same or
similar businesses and owning similar properties in the same general area in
which the Borrower operates and the reserves maintained with respect to such
self-insured amounts are deemed adequate by the officer or officers of the
Borrower responsible for insurance matters.
SECTION 5.03. Taxes and Obligations. Pay and discharge promptly
when due all taxes, assessments and governmental charges or levies imposed upon
it or upon its income or profits or in respect of its property, before the same
shall become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise which, if unpaid, might give rise to a Lien
upon such properties or any part thereof; provided, however, that such payment
and discharge shall not be required with respect to any such tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and the Borrower shall, to
the extent required by GAAP, have set aside on its books adequate reserves with
respect thereto.
SECTION 5.04. Financial Statements, Reports, etc. Furnish to the
Agent and each Bank:
(a) within 105 days after the end of each fiscal year, its
consolidated and consolidating balance sheets and related statements of
income and statements of cash flow, showing the financial condition of
the Borrower and its consolidated Subsidiaries as of the close of such
fiscal year and the results of its operations and the operations of such
Subsidiaries during such year, all audited by Deloitte & Touche or other
independent public accountants of recognized national standing
acceptable to the Required Banks and
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accompanied by an opinion of such accountants (which shall not be
qualified in any material respect) to the effect that such consolidated
financial statements fairly present the financial condition and results
of operations of the Borrower on a consolidated basis (except as noted
therein) in accordance with GAAP consistently applied;
(b) within 50 days after the end of each of the first three
fiscal quarters of each fiscal year, its consolidated and, to the extent
otherwise available, consolidating balance sheets and related statements
of income and statements of cash flow, showing the financial condition
of the Borrower and its consolidated subsidiaries as of the close of
such fiscal quarter and the results of its operations and the operations
of such subsidiaries during such fiscal quarter and the then elapsed
portion of the fiscal year, all certified by one of its Financial
Officers as fairly presenting the financial condition and results of
operations of the Borrower on a consolidated basis in accordance with
GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under
(a) or (b) above, a certificate of the relevant accounting firm opining
on or certifying such statements or Financial Officer (which
certificate, when furnished by an accounting firm, may be limited to
accounting matters and disclaim responsibility for legal
interpretations) certifying that to the knowledge of the accounting firm
or the Financial Officer, as the case may be, no Event of Default or
Default has occurred or, if such an Event of Default or Default has
occurred, specifying the nature and extent thereof and any corrective
action taken or proposed to be taken with respect thereto;
(d) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials
filed by it with the Securities and Exchange Commission, or any
governmental authority succeeding to any of or all the functions of said
Commission, or with any national securities exchange, or distributed to
its share
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holders, as the case may be; and
(e) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
the Borrower or any Significant Subsidiary, or compliance with the terms
of any Loan Document, as the Agent or any Bank may reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the Agent
and each Bank prompt written notice of the following:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) proposed to be taken
with respect thereto;
(b) the filing or commencement of, or any written threat or
notice of intention of any person to file or commence, any action, suit
or proceeding, whether at law or in equity or by or before any
Governmental Authority, against the Borrower or any Subsidiary thereof
which could reasonably be anticipated to result in a Material Adverse
Effect; and
(c) any development that has resulted in, or could reasonably be
anticipated to result in, a Material Adverse Effect.
SECTION 5.06. ERISA. (a) Comply in all material respects with the
applicable provisions of ERISA and (b) furnish to the Agent and each Bank (i) as
soon as possible, and in any event within 30 days after any Responsible Officer
of the Borrower or any ERISA Affiliate either knows or has reason to know that
any Reportable Event has occurred that alone or together with any other
Reportable Event could reasonably be expected to result in liability of the
Borrower to the PBGC in an aggregate amount exceeding $10,000,000, a statement
of a Financial Officer setting forth details as to such Reportable Event and the
action proposed to be taken with respect thereto, together with a copy of the
notice, if any, of such Reportable Event given to the PBGC, (ii) promptly after
receipt thereof, a copy of any notice the Borrower or any ERISA Affiliate may
receive from the PBGC relating to the
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intention of the PBGC to terminate any Plan or Plans (other than a Plan
maintained by an ERISA Affiliate which is considered an ERISA Affiliate only
pursuant to subsection (m) or (o) of Section 414 of the Code) or to appoint a
trustee to administer any Plan or Plans and (iii) within 10 days after the due
date for filing with the PBGC pursuant to Section 412(n) of the Code of a notice
of failure to make a required installment or other payment with respect to a
Plan, a statement of a Financial Officer setting forth details as to such
failure and the action proposed to be taken with respect thereto, together with
a copy of such notice given to the PBGC.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Maintain all financial records in accordance with GAAP and permit
any representatives designated by any Bank to visit and inspect the financial
records and the properties of the Borrower at reasonable times and as often as
requested and to make extracts from and copies of such financial records, and
permit any representatives designated by any Bank to discuss the affairs,
finances and condition of the Borrower with the chief financial officer of the
Borrower, or other person designated by the chief financial officer, and
independent accountants therefor.
SECTION 5.08. Use of Proceeds and Letters of Credit. Use the
proceeds of the Loans and the Letters of Credit only for the purposes set forth
in the preamble to this Agreement.
ARTICLE VI. NEGATIVE COVENANTS
The Borrower covenants and agrees with each Bank that, so long as
this Agreement shall remain in effect or the principal of or interest on any
Loan shall be unpaid, any LC Disbursement, any Fees or any other expenses or
amounts payable under any Loan Document shall be unpaid or any Letter of Credit
remains outstanding, unless the Required Banks shall otherwise consent in
writing, the Borrower will not:
SECTION 6.01. Liens. Create, incur, assume or permit to exist any
Lien on any property or assets (including stock or other securities of any
person,
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including any Subsidiary) now owned or hereafter acquired by it or on any income
or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower created by the
documents, instruments or agreements existing on the date hereof and
which are listed as exhibits to the Borrower's Annual Report on Form
10-K for the fiscal year ended December 31, 1997, to the extent that
such Liens secure only obligations arising under such existing
documents, agreements or instruments;
(b) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower; provided that (i) such Lien is not
created in contemplation of or in connection with such acquisition and
(ii) such Lien does not apply to any other property or assets of the
Borrower;
(c) the Lien of the First Mortgage;
(d) Liens permitted under the First Mortgage (whether or not
such permitted Liens cover properties or assets subject to the Lien of
the First Mortgage) and any other Liens to which the Lien of the First
Mortgage is expressly made subject;
(e) the Lien of any collateral trust mortgage or similar
instrument which would be intended to eventually replace (in one
transaction or a series of transactions) the First Mortgage (as amended,
modified or supplemented from time to time, "Collateral Trust Mortgage")
on properties or assets of the Borrower to secure bonds, notes and other
obligations of the Borrower; provided that, so long as the First
Mortgage shall constitute a Lien on properties or assets of the
Borrower, the bonds, notes or other obligations issued under the
Collateral Trust Mortgage (i) shall also be secured by an equal
principal amount of bonds issued under the First Mortgage or (ii) shall
be issued against property additions not subject to the Lien of the
First Mortgage;
(f) Liens permitted under the Collateral Trust Mortgage (whether
or not such permitted Liens cover
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properties or assets subject to the Lien of the Collateral Trust
Mortgage) and any other Liens to which the Lien of the Collateral Trust
Mortgage is subject;
(g) Liens for taxes, assessments or governmental charges not yet
due or which are being contested in compliance with Section 5.03;
(h) carriers', warehousemen's, mechanic's, materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business and securing obligations that are not due or which are being
contested in compliance with Section 5.03;
(i) pledges and deposits made in the ordinary course of business
in compliance with workmen's compensation, unemployment insurance and
other social security laws or regulations;
(j) Liens incurred or created in connection with or to secure
the performance of bids, tenders, trade contracts (other than for
Indebtedness), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(k) zoning restrictions, easements, rights-of-way, restrictions
on use of real property and other similar encumbrances incurred in the
ordinary course of business which, in the aggregate, are not substantial
in amount and do not materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the business
of the Borrower or any of its Subsidiaries;
(l) Liens (i) which secure obligations not assumed by the
Borrower, (ii) on account of which the Borrower has not and does not
expect to pay interest directly or indirectly and (iii) which exist upon
real estate or rights in or relating to real estate in respect of which
the Borrower has a right-of-way or other easement for purposes of
substations or transmission or distribution facilities;
(m) rights reserved to or vested in any federal,
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state or local governmental body or agency by the terms of any right,
power, franchise, grant, license, con tract or permit, or by any
provision of law, to recapture or to purchase, or designate a purchase
of or order the sale of, any property of the Borrower or to terminate
any such right, power, franchise, grant, license, contract or permit
before the expiration thereof;
(n) Liens of judgments covered by insurance, or upon appeal and
covered by bond, or to the extent not so covered not exceeding at one
time $10,000,000 in aggregate amount;
(o) any Liens, moneys sufficient for the discharge of which
shall have been deposited in trust with the trustee or mortgagee under
the instrument evidencing such Lien, with irrevocable authority of such
trustee or mortgagee to apply such moneys to the discharge of such Lien
to the extent required for such purpose;
(p) rights reserved to or vested in any federal, state or local
governmental body or agency or other public authority to control or
regulate the business or property of the Borrower;
(q) any obligations or duties, affecting the property of the
Borrower to any federal, state or local governmental body or agency or
other public authority with respect to any authorization, permit,
consent or license of such body, agency or authority, given in
connection with the purchase, construction, equipping, testing and
operation of the Borrower's utility property;
(r) with respect to any property which the Borrower may
hereafter acquire, any exceptions or reservations therefrom existing at
the time of such acquisition or any terms, conditions, agreements,
covenants, exceptions and reservations expressed or provided in the
deeds of other instruments, respectively, under and by virtue of which
the Borrower shall hereafter acquire the same, none of which materially
impairs the use of such property for the purposes for which it is
acquired by the Borrower;
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(s) leases and subleases entered into in the ordinary course of
business;
(t) banker's Liens and other Liens in the nature of a right of
set-off;
(u) Liens resulting from any transaction permitted under Section
6.03(iv);
(v) renewals, replacements, amendments, modifications,
supplements, refinancings or extensions of Liens set forth above to the
extent that the principal amount of Indebtedness secured by such Lien
immediately prior thereto is not increased and such Lien is not extended
to other property (it being understood that such limitation does not
apply to the Liens described in subsection (c), (e) or (u) above);
(w) security deposits or amounts paid into trust funds for the
reclamation of mining properties;
(x) restrictions on transfer or use of properties and assets,
first rights of refusal, and rights to acquire properties and assets
granted to others;
(y) non-consensual equitable Liens on the Borrower's
tenant-in-common or other interest in joint projects;
(z) Liens on the Borrower's tenant-in-common or other interest
in joint projects incurred by the project sponsor without the express
consent of the Borrower to such incurrence;
(aa) cash collateral contemplated under Section 2.06(i); and
(ab) Liens not expressly permitted in clauses (a) through (aa)
of this Section 6.01 to secure Indebtedness of the Borrower, provided
that the aggregate outstanding principal amount of the Indebtedness so
secured does not at any one time exceed 5% of the total assets of the
Borrower and its Subsidiaries, computed and consolidated in accordance
with GAAP consistently applied.
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SECTION 6.02. Mergers, Consolidations and Acquisitions. Merge
into or consolidate with any other person, or permit any other person to merge
into or consolidate with it, or purchase, lease or otherwise acquire (in one
transaction or a series of transactions) all or substantially all of the assets
of any other person (whether directly by purchase, lease or other acquisition of
all or substantially all of the assets of such person or indirectly by purchase
or other acquisition of all or substantially all of the capital stock of such
other person) other than acquisitions in the ordinary course of the Borrower's
business, except that if (A) at the time thereof and immediately after giving
effect thereto no Event of Default or Default shall have occurred and be
continuing and (B) in the case of any merger or consolidation involving the
Borrower in which the Borrower is not the surviving corporation, the surviving
corporation shall assume in writing the obligations of the Borrower under this
Agreement and any other Loan Documents, then (a) the Borrower may merge or
consolidate with any Subsidiary in a transaction in which the Borrower is the
surviving corporation, (b) the Borrower may purchase, lease or otherwise acquire
from any Subsidiary all or substantially all of its assets and may purchase or
otherwise acquire all or substantially all of the capital stock of any person
who immediately thereafter is a Subsidiary, (c) the Borrower may merge with or
into, or consolidate with, any other person so long as (i) in the case where the
business of such other person, or an Affiliate of such other person, entirely or
primarily consists of an electric or gas utility business, the senior secured
long-term debt rating of the Borrower shall be at least BBB or higher by S&P and
Baa2 or higher by ▇▇▇▇▇'▇ immediately after such merger or consolidation, or in
the case of a merger or consolidation in which the Borrower is not the surviving
entity, the senior secured long-term debt rating of the surviving entity or an
Affiliate thereof shall be at least BBB+ or higher by S&P and Baa1 or higher by
▇▇▇▇▇'▇ immediately after such merger or consolidation, or (ii) in the case
where such other person's business does not entirely or primarily consist of an
electric or gas utility business, the assets of such person at the time of such
consolidation or merger do not exceed 10% of the total assets of the Borrower
and its Subsidiaries after giving effect to such merger or consolidation,
computed and
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consolidated in accordance with GAAP consistently applied, and (d) the Borrower
may purchase, lease or otherwise acquire any or all of the assets of any other
person (and may purchase or otherwise acquire the capital stock of any other
person) so long as (i) the assets being purchased, leased or acquired (or the
assets of the person whose capital stock is being acquired) entirely or
primarily consist of electric or gas utility assets or (ii) in the case where
the assets being purchased, leased or acquired (or the assets of the person
whose capital stock is being acquired) do not entirely or primarily consist of
electric or gas utility assets, the assets being acquired (or the Borrower's
proportionate share of the assets of the person whose capital stock is being
acquired) do not exceed 10% of the total assets of the Borrower and its
Subsidiaries, after giving effect to such acquisition, computed and consolidated
in accordance with GAAP consistently applied.
SECTION 6.03. Disposition of Assets. Sell, lease, transfer,
assign or otherwise dispose of (in one transaction or in a series of
transactions), in any fiscal year, assets (whether now owned or hereafter
acquired) which, together with the amount of all sales, leases, transfers,
assignments or other dispositions permitted under clause (c)(ii) of the
definition of Subsidiary Event in Article I (other than sales, leases,
transfers, assignments or other dispositions permitted under clauses (c)(ii) (A)
through (C) in such definition), exceed 10% of the assets of the Borrower and
its Subsidiaries as of the end of the most recent fiscal year, computed and
consolidated in accordance with GAAP consistently applied, except (i) the
Borrower may, in any fiscal year, sell, lease, transfer, assign or otherwise
dispose of assets in the ordinary course of business which, together with the
amount of all sales, leases, transfers, assignments or other dispositions in the
ordinary course permitted under clause (c)(ii)(A) of the definition of
Subsidiary Event in Article I, do not exceed 5% of the assets of the Borrower
and its Subsidiaries as of the end of the most recent fiscal year, computed and
consolidated in accordance with GAAP consistently applied, (ii) to the extent
permitted under Section 5.03, 6.01 or Section 6.02, (iii) the Borrower may sell,
lease, transfer, assign or otherwise dispose of its interest in the Washington
Public Power Supply System Nuclear Project No. 3 in accordance with the
settlement agreement among the Borrower, the Washington
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Public Power Supply System and Bonneville Power Administration, as the same may
be amended, modified or supplemented from time to time, (iv) the Borrower may
sell, lease, transfer, assign or otherwise dispose of its interests in the
Colstrip and Centralia Projects and related assets and (v) the Borrower may
sell, lease, transfer, assign or otherwise dispose (including by way of capital
contribution) of, or create, incur, assume or permit to exist Liens on,
receivables and related properties or interests therein.
ARTICLE VII. EVENTS OF DEFAULT
In case of the happening (and during the continuance) of any of
the following events ("Events of Default"):
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document or the borrowings hereunder, or any
representation, warranty, statement or information contained in any
report, certificate, financial statement or other instrument furnished
in connection with or pursuant to any Loan Document, shall prove to have
been false or misleading in any material respect when so made, deemed
made or furnished;
(b) default shall be made in the payment of any principal of any
Loan or any reimbursement obligation in respect of any LC Disbursement
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any
Loan or any Fee or any other amount (other than an amount referred to in
(b) above) due under any Loan Document, when and as the same shall
become due and payable, and such default shall continue unremedied for a
period of five Business Days;
(d) default shall be made in the due observance or performance
by the Borrower of any covenant, condition or agreement contained in
Section 5.01(a) or
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5.05 or in Article VI;
(e) default shall be made in the due observance or performance
by the Borrower of any covenant, condition or agreement contained in any
Loan Document (other than those specified in (b), (c) or (d) above) and
such default shall continue unremedied for a period of 30 days after
notice thereof from the Agent or any Bank to the Borrower;
(f) the Borrower or any Significant Subsidiary shall (i) fail to
pay any principal or interest, regardless of amount, due in respect of
any Indebted ness when the aggregate unpaid principal amount is in
excess of $25,000,000, when and as the same shall become due and payable
(after expiration of any applicable grace period), or (ii) fail to
observe or perform any other term, covenant, condition or agreement
(after expiration of any applicable grace period) contained in any
agreement or instrument evidencing or governing any such Indebtedness if
the effect of any failure referred to in this clause (ii) is to cause,
or to permit the holder or holders of such Indebtedness or a trustee on
its or their behalf (with or without the giving of notice, the lapse of
time or both) to cause, such Indebtedness to become due prior to its
stated maturity;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent jurisdiction
seeking (i) relief in respect of the Borrower or any Significant
Subsidiary, or of a substantial part of the property or assets of the
Borrower or a Significant Subsidiary, under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other
Federal or state bankruptcy, insolvency, receivership or similar law,
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Significant
Subsidiary or for a substantial part of the property or assets of the
Borrower or a Significant Subsidiary or (iii) the winding-up or
liquidation of the Borrower or any Significant Subsidiary; and such
proceeding or petition shall continue undismissed, or an order or decree
approving or ordering any of the foregoing
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shall be entered and continue unstayed and in effect, for a period of 60
or more days;
(h) the Borrower or any Significant Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking relief
under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal or state bankruptcy, insolvency,
receivership or similar law, (ii) consent to the institution of, or fail
to contest in a timely and appropriate manner, any proceeding or the
filing of any petition described in (g) above, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any
Significant Subsidiary or for a substantial part of the property or
assets of the Borrower or any Significant Subsidiary, (iv) file an
answer admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the benefit of
creditors, (vi) become unable, admit in writing its inability or fail
generally to pay its debts as they become due or (vii) take any action
for the purpose of effecting any of the foregoing;
(i) a final judgment or judgments shall be rendered against the
Borrower, any Significant Subsidiary or any combination thereof for the
payment of money with respect to which an aggregate amount in excess of
$25,000,000 is not covered by insurance and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by
a judgment creditor to levy upon assets or properties of the Borrower or
any Significant Subsidiary to enforce any such judgment;
(j) a Reportable Event or Reportable Events, or a failure to
make a required installment or other payment (within the meaning of
Section 412(n)(l) of the Code), shall have occurred with respect to any
Plan or Plans that reasonably could be expected to result in liability
of the Borrower to the PBGC or to a Plan in an aggregate amount
exceeding $25,000,000 and, within 30 days after the reporting of any
such Reportable Event to the Agent or after the receipt by
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the Agent of the statement required pursuant to Section 5.06, the Agent
shall have notified the Borrower in writing that (i) the Required Banks
have made a determination that, on the basis of such Reportable Event or
Reportable Events or the failure to make a required payment, there are
reasonable grounds (A) for the termination of such Plan or Plans by the
PBGC, (B) for the appointment by the appropriate United States District
Court of a trustee to administer such Plan or Plans or (C) for the
imposition of a lien in favor of a Plan and (ii) as a result thereof an
Event of Default exists hereunder; or a trustee shall be appointed by a
United States District Court to administer any such Plan or Plans; or
the PBGC shall institute proceedings to terminate any Plan or Plans; or
(k) there shall occur a Subsidiary Event;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Agent, at the request of the Required Banks,
shall, by notice to the Borrower, take either or both of the following actions,
at the same or different times: (i) terminate forthwith the Commitments and (ii)
declare the Loans then outstanding to be forthwith due and payable in whole or
in part, whereupon (A) the Commitments will automatically be terminated and (B)
the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and any unpaid accrued Fees and all other liabilities
of the Borrower accrued hereunder and under any other Loan Document, shall
become forthwith due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding; and in any event with respect to the Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly
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waived by the Borrower, anything contained herein or in any other Loan Document
to the contrary notwithstanding.
ARTICLE VIII. THE AGENT
In order to expedite the various transactions contemplated by
this Agreement, Toronto Dominion (Texas), Inc. is hereby appointed to act as
Agent on behalf of the Banks and the Issuing Bank. Each of the Banks and the
Issuing Bank hereby irrevocably authorizes and directs the Agent to take such
action on behalf of such Bank under the terms and provisions of this Agreement,
and to exercise such powers hereunder as are specifically delegated to or
required of the Agent by the terms and provisions hereof, together with such
powers as are reasonably incidental thereto. The Agent is hereby expressly
authorized on behalf of the Banks and the Issuing Bank, without hereby limiting
any implied authority, (a) to receive on behalf of each of the Banks any payment
of principal of or interest on the Loans outstanding hereunder, LC
Reimbursements and all other amounts accrued hereunder paid to the Agent, and to
distribute to each Bank its proper share of all payments so received as soon as
practicable; (b) to give notice promptly on behalf of each of the Banks to the
Borrower of any event of default specified in this Agreement of which the Agent
has actual knowledge acquired in connection with its agency hereunder; and (c)
to distribute promptly to each Bank copies of all notices, agreements and other
material as provided for in this Agreement as received by such Agent.
Neither the Agent nor any of its directors, officers, employees
or agents shall be liable to any Bank as such for any action taken or omitted by
any of them hereunder except for its or his own gross negligence or wilful
misconduct, or be responsible for any statement, warranty or representation
herein or the contents of any document delivered in connection herewith or be
required to ascertain or to make any inquiry concerning the performance or
observance by the Borrower of any of the terms, conditions, covenants or
agreements of this Agreement. The Agent shall not be responsible to the Banks
and the Issuing Bank for the due execution, genuineness, validity,
enforceability or effectiveness of this Agreement or any other instrument to
which reference is made herein. The
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Agent shall in all cases be fully protected in acting, or refraining from
acting, in accordance with written instructions signed by the Required Banks,
and, except as otherwise specifically provided herein, such instructions and any
action taken or failure to act pursuant thereto shall be binding on all the
Banks. The Agent shall, in the absence of knowledge to the contrary, be entitled
to rely on any paper or document believed by it in good faith to be genuine and
correct and to have been signed or sent by the proper person or persons. Neither
the Agent nor any of its directors, officers, employees or agents shall have any
responsibility to the Borrower on account of the failure or delay in performance
or breach by any Bank or the Issuing Bank of any of its obligations hereunder or
to any Bank or the Issuing Bank on account of the failure of or delay in
performance or breach by any other Bank or the Borrower of any of their
respective obligations hereunder or in connection herewith. The Agent may
execute any and all duties hereunder by or through agents or employees and shall
be entitled to advice of legal counsel selected by it with respect to all
matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Agent and its affiliates may accept deposits from, lend money
to and generally engage in any kind of business with the Borrower or other
affiliate thereof as if it were not the Agent.
Each Bank recognizes that applicable laws, rules, regulations or
guidelines of governmental authorities may require the Agent to determine
whether the transactions contemplated hereby should be classified as "highly
lever aged" or assigned any similar or successor classification, and that such
determination may be binding upon the other Banks. Each Bank understands that
any such determination shall be made solely by the Agent based upon such factors
(which may include, without limitation, the Agent's internal policies and
prevailing market practices) as the Agent shall deem relevant and agrees that
the Agent shall have no liability for the consequences of any such
determination.
Each Bank agrees (i) to reimburse the Agent in the amount of such
Bank's pro rata share (based on its Commitment hereunder) of any expenses
incurred for the
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benefit of the Banks by the Agent, including reasonable counsel fees and
compensation of agents and employees paid for services rendered on behalf of the
Banks, not reimbursed by the Borrower and (ii) to indemnify and hold harmless
the Agent and any of its directors, officers, employees or agents, on demand, in
the amount of its pro rata share, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against it in its capacity as the Agent or any of
them in any way relating to or arising out of this Agreement or any action taken
or omitted by it or any of them under this Agreement, to the extent not
reimbursed by the Borrower; provided, however, that no Bank shall be liable to
the Agent for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the gross negligence or wilful misconduct of the Agent or any of its
directors, officers, employees or agents.
Each Bank acknowledges that it has, independently and without
reliance upon the Agent or any other Bank and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Agent or any other Bank based on
such documents and information as it shall deem appropriate at the time,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder.
The Agent may execute any of its duties under this Agreement by
or through agents or attorneys selected by them using reasonable care and shall
be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible for the negligence or misconduct of
any agents or attorneys selected and authorized to act by it with reasonable
care unless the damage complained of directly results from an act or failure to
act on part of the Agent which constitutes gross negligence or wilful
misconduct. Delegation to an attorney or agent shall not release the Agent from
its obligation to perform or cause to be
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performed the delegated duty.
The Documentation Agent and the Syndication Agent shall not have
any rights, powers, obligations, liabilities, responsibilities or duties under
this Agreement other than those applicable to all Banks as such. Without
limiting the foregoing, none of the Banks identified as "Documentation Agent" or
"Syndication Agent" shall have or be deemed to have any fiduciary relationship
with any Bank. Each Bank acknowledges that it has not relied, and will not rely,
on any of the Banks so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE IX. MISCELLANEOUS
SECTION 9.01. Notices. Notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed or sent by telecopy, graphic scanning or other
telegraphic communications equipment of the sending party, as follows:
(a) if to the Borrower, to it at East ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(99202), ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of the
Senior Vice President, Chief Financial Officer and Treasurer (Telecopy
No. 509-482-4879);
(b) if to the Agent, to it at ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Telecopy No. 713-951-9921);
(c) if to the Issuing Bank, to it at ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Telecopy No.
713-951-0021); and
(d) if to a Bank, to it at its address (or telecopy number) set
forth in Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Bank shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt
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if delivered by hand or overnight courier service or sent by telecopy or other
telegraphic communications equipment of the sender, or on the date five Business
Days after dispatch by certified or registered mail if mailed, in each case
delivered, sent or mailed (properly addressed) to such party as provided in this
Section 9.01 or in accordance with the latest unrevoked direction from such
party given in accordance with this Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties, including, without limitation, any indemnities
and reimbursement obligations, made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Banks and shall survive the making by the Banks of
the Loans and issuance of any Letters of Credit, and the execution and delivery
to the Banks of the Notes evidencing such Loans, regardless of any investigation
made by the Banks, or on their behalf, or by the Issuing Bank and shall continue
in full force and effect as long as the principal of or any accrued interest on
any Loan or any Fee or any other amount payable under this Agreement or any
other Loan Document is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not been terminated.
SECTION 9.03. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and the Agent and
when the Agent shall have received copies hereof which, when taken together,
bear the signatures of each Bank and the Issuing Bank, and thereafter shall be
binding upon and inure to the benefit of the Borrower, the Agent, the Issuing
Bank and each Bank and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights hereunder or any interest
herein without the prior consent of all the Banks and the Issuing Bank.
SECTION 9.04. Successors and Assigns. (a) Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and permitted assigns of such party; and all
covenants, promises and agreements by or on behalf of the Borrower, the Agent,
the Issuing Bank or the Banks that are
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contained in this Agreement shall bind and inure to the benefit of their
respective successors and permitted assigns.
(b) Each Bank (including the Agent when acting as a Bank) may
assign to one or more assignees all or a portion of its interests, rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Revolving Credit Commitment and the same portion of the
applicable Loan or Loans at the time owing to it and the applicable Note or
Notes held by it, other than any Auction Loans or Notes held by it, which may,
but need not, be assigned); provided, however, that (i) except in the case of an
assignment to a Bank or an Affiliate of such Bank, the Borrower and the Agent
(and, in the case of an assignment of all or a portion of a Commitment or any
Bank's obligation in respect of its LC Exposure, the Issuing Bank) must give
their prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) that no assignee of any Bank shall be entitled to
receive any greater payment or protection under Sections 2.13, 2.14(a), 2.15 or
2.19 than such Bank would have been entitled to receive with respect to the
rights assigned or otherwise transferred unless such assignment or transfer
shall have been made at a time when the circumstances giving rise to such
greater payment did not exist, (iii) each such assignment shall be of a
constant, and not a varying, percentage of all the assigning Bank's rights and
obligations under this Agreement, except that this clause (iii) shall not apply
to rights in respect of outstanding Auction Loans, (iv) the amount of the
Commitment of the assigning Bank subject to each such assignment (determined as
of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Agent) shall not be less than $5,000,000 (or, if less, the
total amount of their Commitments), (v) the parties to each such assignment
shall execute and deliver to the Agent an Assignment and Acceptance, together
with the Note or Notes subject to such assignment and a processing and
recordation fee of $5,000 and (vi) the assignee, if it shall not be a Bank,
shall deliver to the Agent an Administrative Questionnaire. Upon acceptance and
recording pursuant to paragraph (e) of this Section 9.04, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five Business Days after the execution thereof, (A) the
assignee
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thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Bank
under this Agreement and (B) the assigning Bank thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Bank's rights
and obligations under this Agreement, such Bank shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 2.13, 2.15, 2.19
and 9.05, as well as to any Fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Bank thereunder and the assignee thereunder shall be deemed to confirm
to and agree with each other and the other parties hereto as follows: (i) such
assigning Bank warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and that its
Commitment, and the outstanding balances of its Loans, in each case without
giving effect to assignments thereof which have not become effective, are as set
forth in such Assignment and Acceptance; (ii) except as set forth in (i) above,
such assigning Bank makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of the Borrower or any Subsidiary or the
performance or observance by the Borrower or any Subsidiary of any of its
obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 5.04 and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (v) such assignee will independently and
without reliance upon the Agent, such
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assigning Bank or any other Bank and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement; (vi) such assignee appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Agent by the
terms hereof, together with such powers as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with their
terms all the obligations which by the terms of this Agreement are required to
be performed by it as a Bank.
(d) The Agent shall maintain a copy of each Assignment and
Acceptance delivered to it including the recordation of the names and addresses
of the Banks, and the Commitment of, and principal amount of the Loans and LC
Disbursements owing to, each Bank pursuant to the terms hereof from time to time
(the "Register"). The Agent, the Issuing Bank and the Banks may treat each
person whose name is recorded in the Register pursuant to the terms hereof as a
Bank hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower, the Issuing Bank and any Bank, at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Bank and an assignee together with the Note
or Notes subject to such assignment, an Administrative Questionnaire completed
in respect of the assignee (unless the assignee shall already be a Bank
hereunder), the processing and recordation fee referred to in paragraph (b)
above and, if required, the written consent of the Borrower and the Agent to
such assignment, the Agent shall (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the Banks. Within five Business Days after receipt of notice,
the Borrower, at its own expense, shall execute and deliver to the Agent, in
exchange for the surrendered Note or Notes, a new Note or Notes to the order of
such assignee in a principal amount equal to the applicable Commitment assumed
by it pursuant to such Assignment and Acceptance and, if the assigning Bank has
retained a Commitment, a new Note to the order of such assigning Bank in a
principal amount equal to the applicable Commitment retained by it. Such new
Note or Notes shall be in an aggregate principal
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amount equal to the aggregate principal amount of such surrendered Note; such
new Notes shall be dated the date of the surrendered Notes which they replace
and shall otherwise be in substantially the form of Exhibit A hereto. Canceled
Notes shall be returned to the Borrower.
(f) Each Bank may without the consent of the Borrower, the
Issuing Bank or the Agent sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it and the
Notes held by it); provided, however, that (i) such Bank's obligations under
this Agreement shall remain unchanged, (ii) such Bank shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participating banks or other entities shall be entitled to the benefit
of the cost protection provisions contained in Sections 2.13, 2.15 and 2.19 to
the same extent as if they were Banks (provided, that the amount of such benefit
shall be limited to the amount in respect of the interest sold to which the
seller of such participation would have been entitled had it not sold such
interest) and (iv) the Borrower, the Agent, the Issuing Bank and the other Banks
shall continue to deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Agreement, and such Bank shall
retain the sole right to enforce the obligations of the Borrower relating to the
Loans and to approve any amendment, modification or waiver of any provision of
this Agreement (other than amendments, modifications or waivers decreasing any
fees payable hereunder or the amount of principal of or the rate at which
interest is payable on the Loans, extending any scheduled principal payment date
or date fixed for the payment of interest on the Loans or changing or extending
the Commitments).
(g) Any Bank or participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 9.04, disclose to the assignee or participant or proposed assignee
or participant any information relating to the Borrower furnished to such Bank
by or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant
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shall execute an agreement whereby such assignee or participant shall agree
(subject to customary exceptions) to preserve the confidentiality of such
confidential information.
(h) Any Bank may at any time assign for security purposes all or
any portion of its rights under this Agreement and the Notes issued to it to a
Federal Reserve Bank; provided that no such assignment shall release a Bank from
any of its obligations hereunder.
(i) Subject to Section 6.02, the Borrower shall not assign or
delegate any of its rights or duties hereunder.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower agrees to pay
(i) all reasonable out-of-pocket expenses incurred by the Agent in connection
with the preparation of this Agreement and the other Loan Documents or in
connection with any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions hereby contemplated shall be
consummated) or incurred by the Agent or any Bank in connection with the
enforcement or protection of their rights in connection with this Agreement and
the other Loan Documents or in connection with the Loans made or the Notes
issued hereunder, including the fees, charges and disbursements of Cravath,
Swaine & ▇▇▇▇▇, counsel for the Agent, and, in connection with any such
amendment, modification or waiver or any such enforcement or protection, the
fees, charges and disbursements of any other internal or external counsel for
the Agent, the Issuing Bank or any Bank and (ii) all reasonable out-of-pocket
expenses incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder. The Borrower further agrees that it shall indemnify the
Banks from and hold them harmless against any documentary taxes, assessments or
charges made by any Governmental Authority by reason of the execution and
delivery of this Agreement or any of the other Loan Documents.
(b) The Borrower agrees to indemnify the Agent, the Issuing Bank
and each Bank and each of their respective directors, officers, employees and
agents (each such person being called an "Indemnitee") against, and to hold each
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Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees, charges and disbursements,
incurred by or asserted against any Indemnitee arising out of, in any way
connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties thereto of their respective obligations
thereunder or the consummation of the Transactions and the other transactions
contemplated thereby, (ii) the use of the proceeds of the Loans and of the
Letters of Credit (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of Credit)
or (iii) any claim, litigation, investigation or proceeding relating to any of
the foregoing, whether or not any Indemnitee is a party thereto; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or related expenses are determined by
a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative
and in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Agent, the Issuing Bank or any Bank. All amounts due
under this Section 9.05 shall be payable on written demand therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing and the Loans shall have been accelerated as set
forth in Article VII, each Bank is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Bank (or bank
Controlling such Bank) to or for the credit or the account of the Borrower
against any of and all the obligations of
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the Borrower now or hereafter existing under this Agreement and other Loan
Documents held by such Bank. The rights of each Bank under this Section are in
addition to other rights and remedies (including other rights of setoff) which
such Bank may have. Any Bank shall provide the Borrower with written notice
promptly after exercising its rights under this Section.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Agent, the Issuing Bank or any Bank in exercising any power or right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the Agent,
the Issuing Bank and the Banks hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies which they would
otherwise have. No waiver of any provision of this Agreement or any other Loan
Document or consent to any departure by the Borrower therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) below,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No notice or demand on the Borrower in any
case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Banks; provided, however,
that no such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan or LC Disbursement, or waive or excuse any such payment
or any part thereof, or decrease the rate of interest on any Loan, without the
prior written consent of each holder of a Note affected thereby, (ii) change or
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extend the Commitment or decrease the Commitment Fees of any Bank without the
prior written consent of such Bank, or (iii) amend or modify the provisions of
Section 2.16, the provisions of this Section or the definition of "Required
Banks", without the prior written consent of each Bank; provided further that no
such agreement shall amend, modify or otherwise affect the rights or duties of
the Agent or the Issuing Bank hereunder without the prior written consent of the
Agent or the Issuing Bank, as the case may be. Each Bank and each holder of a
Note shall be bound by any waiver, amendment or modification authorized by this
Section regardless of whether its Note shall have been marked to make reference
thereto, and any consent by any Bank or holder of a Note pursuant to this
Section shall bind any person subsequently acquiring a Note from it, whether or
not such Note shall have been so marked.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything
herein or in the Notes to the contrary, if at any time the applicable interest
rate, together with all fees and charges which are treated as interest under
applicable law (collectively the "Charges"), as provided for herein or in any
other document executed in connection herewith, or otherwise contracted for,
charged, received, taken or reserved by any Bank, shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by such Bank in accordance with applicable law, the rate of
interest payable under the Note held by such Bank, together with all Charges
payable to such Bank, shall be limited to the Maximum Rate.
SECTION 9.10. Entire Agreement. This Agreement and the other Loan
Documents constitute the entire contract between the parties relative to the
subject matter hereof. Any previous agreement among the parties with respect to
the subject matter hereof is superseded by this Agreement and the other Loan
Documents. Nothing in this Agreement or in the other Loan Documents, expressed
or implied, is intended to confer upon any party other than the parties hereto
and thereto any rights, remedies, obligations or liabilities under or by reason
of this Agreement or the other Loan Documents.
SECTION 9.11. Waiver of Jury Trial. Each party hereto hereby
waives, to the fullest extent permitted by
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applicable law, any right it may have to a trial by jury in respect of any
litigation directly or indirectly arising out of, under or in connection with
this Agreement or any of the other Loan Documents. Each party hereto (a)
certifies that no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver and (b) acknowledges
that it and the other parties hereto have been induced to enter into this
Agreement and the other Loan Documents, as applicable, by, among other things,
the mutual waivers and certifications in this Section 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract, and shall become
effective as provided in Section 9.03.
SECTION 9.14. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a)
The Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition
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or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State or, to
the extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Agent, Issuing Bank or any other Bank may otherwise have to bring
any action or proceeding relating to this Agreement or the other Loan Documents
against the Borrower or its properties in the courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this agreement or the other Loan
Documents in any New York State or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(c) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
WITNESS the due execution hereof as of the date first above
written.
THE WASHINGTON WATER POWER COMPANY,
by
-------------------------------
Name:
Title:
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TORONTO DOMINION (TEXAS), INC., as Agent,
by
-------------------------------
Name:
Title:
THE TORONTO-DOMINION BANK, as Issuing Bank,
by
-------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Documentation
Agent,
by
-------------------------------
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Syndication Agent,
by
-------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC.,
by
-------------------------------
Name:
Title:
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THE BANK OF NEW YORK,
by
-------------------------------
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION,
by
-------------------------------
Name:
Title:
FIRST SECURITY BANK OF IDAHO,
by
-------------------------------
Name:
Title:
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89
MELLON BANK, N.A.,
by
-------------------------------
Name:
Title:
NATIONSBANK, N.A.,
by
-------------------------------
Name:
Title:
U.S. BANK,
by
-------------------------------
Name:
Title:
WACHOVIA BANK, N.A.
by
-------------------------------
Name:
Title:
▇▇▇▇▇ FARGO BANK,
by
-------------------------------
Name:
Title:
91
EXHIBIT A
[FORM OF]
NOTE
$__________________ [ ], 1998
New York, New York
FOR VALUE RECEIVED, the undersigned, THE WASHINGTON WATER POWER
COMPANY, a Washington corporation (the "Borrower"), hereby promises to pay to
the order of _______________________ (the "Bank"), at the office of Toronto
Dominion (Texas), Inc., (the "Agent"), at ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, (i) on the last day of each Interest Period, as defined in the
$125,000,000 Revolving Credit Agreement dated as of June 30, 1998 (the "Credit
Agreement"), among the Borrower, the Banks named therein and the Agent, the
aggregate unpaid principal amount of all Loans (as defined in the Credit
Agreement) made to the Borrower by the Bank pursuant to the Credit Agreement to
which such Interest Period applies and (ii) on the Expiration Date (as defined
in the Credit Agreement) the lesser of the principal sum of __________________
Dollars ($______________) and the aggregate unpaid principal amount of all Loans
made to the Borrower by the Bank pursuant to the Credit Agreement, in lawful
money of the United States of America in immediately available funds, and to pay
interest from the date hereof on the principal amount hereof from time to time
outstanding, in like funds, at said office, at the rate or rates per annum and
payable on the dates provided in the Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue
principal and, to the extent permitted by law, overdue interest from their due
dates at the rate or rates provided in the Credit Agreement.
92
The Borrower hereby waives diligence, presentment, demand,
protest and notice of any kind whatsoever. The nonexercise by the holder of any
of its rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All borrowings evidenced by this Note and all payments and
prepayments of the principal hereof and interest hereon and the respective dates
and maturity dates thereof shall be endorsed by the holder hereof on the
schedule attached hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof, or otherwise recorded by
such holder in its internal records; provided, however, that the failure of the
holder hereof to make such a notation or any error in such a notation shall not
affect the obligations of the Borrower under this Note.
This Note is one of the Notes referred to in the Credit
Agreement, which, among other things, contains provisions for the acceleration
of the maturity hereof upon the happening of certain events, for optional and
mandatory prepayment of the principal hereof prior to the maturity hereof and
for the amendment or waiver of certain provisions of the Credit Agreement, all
upon the terms and conditions therein specified. This Note shall be construed in
accordance with and governed by the laws of the State of New York and any
applicable laws of the United States of America.
THE WASHINGTON WATER
POWER COMPANY
by
-------------------------------
Name:
Title:
93
3
Loans and Payments
Amount Unpaid Name of
and Principal Person
Type/Class Maturity Payments Balance of Making
Date of Loan Date Principal Interest Note Notation
---- ---------- -------- ------------------ ---------- --------
94
EXHIBIT B
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the $125,000,000 Credit Agreement dated as
of June 30, 1998 (as in effect from time to time, the "Credit Agreement"), among
The Washington Water Power Company, a Washington corporation (the "Borrower"),
the banks listed on Schedule 2.01 thereto (the "Banks") and Toronto Dominion
(Texas), Inc., as agent for the Banks (in such capacity, the "Agent"). Terms
defined in the Credit Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to
the Assignee, and the Assignee hereby purchases and assumes, without recourse,
from the Assignor, effective as of the Effective Date set forth on the reverse
hereof, the interests set forth on the reverse hereof (the "Assigned Interest")
in the Assignor's rights and obligations under the Credit Agreement, including,
without limitation, the interests set forth on the reverse hereof in the
Commitment of the Assignor on the Effective Date and Revolving Loans [and
Auction Loans] owing to the Assignor which are outstanding on the Effective
Date, together with unpaid interest accrued on the assigned Revolving Loans [and
Auction Loans] to the Effective Date, together with the participations in
Letters of Credit and LC Disbursements held by the Assignor on the Effective
Date, and the amount, if any, set forth on the reverse hereof of the Fees
accrued to the Effective Date for the account of the Assignor. Each of the
Assignor and the Assignee hereby makes and agrees to be bound by all the
representations, warranties and agreements set forth in Section 9.04(c) of the
Credit Agreement, a copy of which has been received by each such party. From and
after the Effective Date (i) the Assignee shall be a party to and be bound by
the provisions of the Credit Agreement and, to the extent of the interests
assigned by this Assignment and Acceptance, have the rights and obligations of a
Bank thereunder and under the Loan Documents and (ii) the Assignor
95
shall, to the extent of the interests assigned by this Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Credit Agreement.
2. This Assignment and Acceptance is being delivered to the Agent
together with (i) the Notes evidencing the Loans included in the Assigned
Interest, (ii) if the Assignee is organized under the laws of a jurisdiction
outside the United States, the forms specified in Section 2.19(f) of the Credit
Agreement, duly completed and executed by such Assignee, (iii) if the Assignee
is not already a Bank under the Credit Agreement, an Administrative
Questionnaire in the form of Exhibit C to the Credit Agreement and (iv) a
processing and recordation fee of $5,000.
3. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
(may not be fewer than 5 Business
Days after the Date of Assignment):
96
3
Percentage
Assigned of
Facility and
Commitment
Thereunder (set
forth, to at
least 8 decimals,
Principal Amount as a percentage
Assigned (and of the Facility
identifying and the aggregate
information as to Commitments
individual of all Banks
Facility Auction Loans) thereunder)
-------- -------------- -----------------
Commitment Assigned: $ %
Revolving Loans: $ %
[Auction Loans: $ %]
Fees Assigned (if any): $ %
The terms set forth above and on
the reverse side hereof are
hereby agreed to:
Accepted:
__________________, as Assignor
TORONTO DOMINION (TEXAS), INC., as
Agent
By:____________________________
Name: By:_________________________
Title: Name:
Title:
__________________, as Assignee THE WASHINGTON POWER COMPANY
By:____________________________ By:_________________________
Name: Name:
Title: Title:
97
EXHIBIT C
Administrative Questionnaire
98
EXHIBIT D-1
Opinion of General Counsel for the Borrower
99
EXHIBIT D-2
Opinion of Special Counsel for the Borrower
100
SCHEDULE 2.01
Banks
Bank Commitment
---- ----------
Toronto Dominion (Texas), Inc. $21,875,000
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇)▇▇▇-▇▇▇▇
With copies to:
Toronto Dominion Bank U.S.A. Division
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Bank of America National Trust $21,875,000
and Savings Association
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
First Security Bank of Idaho $6,250,000
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ (83702)
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
101
2
Bank Commitment
---- ----------
Mellon Bank, N.A. $9,375,000
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Copies to:
Mellon Bank, N.A.
1 Mellon Bank Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (AIM# 151-4425)
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of New York $15,625,000
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
NationsBank, N.A. $15,625,000
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
64th Floor
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
U.S. Bank $12,500,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
102
3
Bank Commitment
---- ----------
Wachovia Bank, N.A. $9,375,000
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ Fargo Bank $12,500,000
W. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
103
SCHEDULE 3.14
Significant Subsidiaries
Name Percent Ownership
---- -----------------
Avista Corp. 100%
▇▇▇▇▇▇▇ Corporation 100%
104
SCHEDULE 4.02(c)
Orders of Governmental Authorities
1. Order(s) of the Washington Utilities and Transportation Commission.
2. Order(s) of the Oregon Public Utility Commission.
3. Order(s) of the Idaho Public Utilities Commission.
4. Order(s) of the California Public Utilities Commission.
