Exhibit 10.1
EXECUTION
VERSION
$500,000,000
364-DAY REVOLVING CREDIT
AGREEMENT
among
DOMINION RESOURCES,
INC.,
The Several Lenders from Time to
Time Parties Hereto,
THE ROYAL BANK OF SCOTLAND
PLC,
as Administrative Agent,
BARCLAYS BANK PLC AND MORGAN
STANLEY BANK,
as Co-Syndication Agents,
CITIBANK N.A. AND THE BANK OF
NOVA SCOTIA ,
as Co-Documentation Agents
RBS SECURITIES CORPORATION D/B/A
RBS GREENWICH CAPITAL,
as Lead Arranger and Bookrunner
Dated as of July 30,
2008
Table of Contents
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Page
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SECTION 1.
DEFINITIONS AND ACCOUNTING TERMS
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1
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1.1 Definitions
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1
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1.2 Computation
of Time Periods; Other Definitional Provisions
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12
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1.3 Accounting
Terms
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13
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1.4 Time
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13
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SECTION 2.
LOANS
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2.1 Revolving
Loan Commitment
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13
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2.2 Method
of Borrowing for Revolving Loans
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13
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2.3 Funding
of Revolving Loans
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14
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2.4 Minimum
Amounts of Revolving Loans
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15
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2.5 Reductions
of Revolving Loan Commitment
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15
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2.6 RESERVED
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15
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2.7 Notes
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15
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2.8 RESERVED
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16
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SECTION 3.
PAYMENTS
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3.1 Interest
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3.2 Prepayments
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16
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3.3 Payment
in Full at Maturity
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17
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3.4 Fees
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17
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3.5 Place
and Manner of Payments
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17
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3.6 Pro
Rata Treatment
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18
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3.7 Computations
of Interest and Fees
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18
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3.8 Sharing
of Payments
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18
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3.9 Evidence
of Debt
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19
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SECTION 4.
ADDITIONAL PROVISIONS REGARDING LOANS
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20
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4.1 Eurodollar
Revolving Loan Provisions
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20
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4.2 Capital
Adequacy
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21
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4.3 Compensation
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21
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4.4 Taxes
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22
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4.5 Mitigation;
Mandatory Assignment
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24
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SECTION 5.
RESERVED
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24
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SECTION 6.
CONDITIONS PRECEDENT
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24
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6.1 Closing
Conditions
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24
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6.2 Conditions
to Loans
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26
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SECTION 7.
REPRESENTATIONS AND WARRANTIES
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27
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7.1 Organization
and Good Standing
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27
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7.2 Due
Authorization
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27
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7.3 No
Conflicts
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27
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7.4 Consents
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28
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7.5 Enforceable
Obligations
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28
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7.6 Financial
Condition
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28
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7.7 No
Default
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28
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7.8 Indebtedness
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28
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7.9 Litigation
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28
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7.10 Taxes
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29
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7.11 Compliance
with Law
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29
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7.12 ERISA
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29
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7.13 Government
Regulation
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29
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7.14 Solvency
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29
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SECTION 8.
AFFIRMATIVE COVENANTS
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29
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8.1 Information
Covenants
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30
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8.2 Preservation
of Existence and Franchises
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31
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8.3 Books
and Records
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31
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8.4 Compliance
with Law
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31
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8.5 Payment
of Taxes
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31
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8.6 Insurance
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32
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8.7 Performance
of Obligations
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32
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8.8 ERISA
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32
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8.9 Use
of Proceeds
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32
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8.10 Audits/Inspections
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33
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8.11 Total
Funded Debt to Capitalization
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33
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SECTION 9.
NEGATIVE COVENANTS
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33
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9.1 Nature
of Business
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33
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9.2 Consolidation
and Merger
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33
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9.3 Sale
or Lease of Assets
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34
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9.4 Limitation
on Liens
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34
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9.5 Fiscal
Year
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34
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SECTION 10.
EVENTS OF DEFAULT
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35
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10.1 Events
of Default
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35
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10.2 Acceleration;
Remedies
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37
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10.3 Allocation
of Payments After Event of Default
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37
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ii
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SECTION 11.
AGENCY PROVISIONS
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38
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11.1 Appointment
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38
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11.2 Delegation
of Duties
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39
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11.3 Exculpatory
Provisions
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39
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11.4 Reliance
on Communications
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39
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11.5 Notice
of Default
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40
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11.6 Non-Reliance
on Administrative Agent and Other Lenders
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40
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11.7 Indemnification
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41
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11.8 Administrative
Agent in Its Individual Capacity
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41
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11.9 Successor
Administrative Agent
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41
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SECTION 12.
MISCELLANEOUS
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42
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12.1 Notices
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42
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12.2 Right of
Set-Off; Adjustments
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43
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12.3 Benefit
of Agreement
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43
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12.4 No
Waiver; Remedies Cumulative
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46
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12.5 Payment
of Expenses, etc.
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46
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12.6 Amendments,
Waivers and Consents
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47
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12.7 Counterparts;
Telecopy
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48
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12.8 Headings
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48
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12.9 Defaulting
Lender
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48
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12.10 Survival of
Indemnification and Representations and Warranties
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48
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12.11 GOVERNING
LAW
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48
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12.12 WAIVER OF JURY
TRIAL
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49
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12.13 Severability
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49
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12.14 Entirety
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49
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12.15 Binding
Effect
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49
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12.16 Submission to
Jurisdiction
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49
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12.17 Confidentiality
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50
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12.18 Designation of
SPVs
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50
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12.19 USA Patriot
Act
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51
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iii
SCHEDULES
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Schedule 1.1
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Commitment
Percentages
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Schedule
7.8
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Indebtedness
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Schedule
7.9
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Litigation
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Schedule 12.1
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Notices
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EXHIBITS
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Exhibit
2.2(a)
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Form of Notice
of Borrowing
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Exhibit
2.2(c)
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Form of Notice
of Conversion/Continuation
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Exhibit
2.7(a)
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Form of
Revolving Loan Note
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Exhibit
6.1(c)
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Form of Closing
Certificate
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Exhibit 6.1(e)
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Form of Legal
Opinion
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Exhibit
8.1(c)
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Form of
Officer’s Certificate
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Exhibit
12.3
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Form of
Assignment Agreement
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iv
364-DAY REVOLVING
CREDIT AGREEMENT
364-DAY REVOLVING CREDIT AGREEMENT
(this “ Credit Agreement ”), dated as of
July 30, 2008 among DOMINION RESOURCES, INC., a Virginia
corporation (together with its permitted successors and assigns,
the “ Borrower ”), the several banks and other
financial institutions from time to time parties to this Credit
Agreement (each a “ Lender ” and, collectively,
the “Lenders”), THE ROYAL BANK OF SCOTLAND PLC, a
public limited company incorporated in the United Kingdom and
registered under the laws of Scotland, as administrative agent for
the Lenders hereunder (in such capacity, the “
Administrative Agent ”), BARCLAYS BANK PLC and MORGAN
STANLEY BANK, as Co-Syndication Agents and, CITIBANK N.A. and THE
BANK OF NOVA SCOTIA, as Co-Documentation Agents.
The parties hereto hereby agree as
follows:
SECTION 1. DEFINITIONS AND
ACCOUNTING TERMS
1.1 Definitions
.
As used herein, the following terms
shall have the meanings herein specified unless the context
otherwise requires. Defined terms herein shall include in the
singular number the plural and in the plural the
singular:
“ Adjusted Base Rate
” means the Base Rate plus the Applicable Percentage for Base
Rate Loans.
“ Adjusted Eurodollar
Rate ” means the Eurodollar Rate plus the Applicable
Percentage for Eurodollar Revolving Loans.
“ Administrative Agent
” means The Royal Bank of Scotland plc and any successors and
assigns in such capacity.
“ Affiliate ”
means, with respect to any Person, any other Person directly or
indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by or under direct or
indirect common control with such Person. A Person shall be deemed
to control a corporation or other entity if such Person possesses,
directly or indirectly, the power (i) to vote 20% or more of
the securities having ordinary voting power for the election of
directors or other managing persons of such corporation or other
entity or (ii) to direct or cause direction of the
management and policies of such corporation or other entity,
whether through the ownership of voting securities, by contract or
otherwise.
“ Applicable Percentage
” means, for (x) Eurodollar Revolving Loans, the LIBOR
Market Rate Spread in effect from time to time, and (y) all
other Revolving Loans made to the Borrower, 0%. Any adjustment in
the Applicable Percentages shall be applicable to all existing
Loans as well as any new Loans.
“ Available Revolving Loan
Commitment ” means, as of any date of determination, the
Revolving Loan Commitment as of such date minus the
aggregate principal amount of all Loans outstanding as of such
date.
“ Bankruptcy Code
” means the Bankruptcy Code in Title 11 of the United States
Code, as amended, modified, succeeded or replaced from time to
time.
“ Base Rate ”
means, for any day, a simple rate per annum equal to the greater of
(a) the Prime Rate for such day or (b) the sum of
one-half of one percent (.50%) plus the Federal Funds Rate for such
day.
“ Base Rate Loan
” means a Loan that bears interest at an Adjusted Base
Rate.
“ Borrower ” has
the meaning set forth in the preamble hereof.
“ Business Day ”
means any day other than a Saturday, a Sunday, a legal holiday or a
day on which banking institutions are authorized or required by law
or other governmental action to close in New York, New York;
provided that in the case of Eurodollar Revolving Loans,
such day is also a day on which dealings between banks are carried
on in Dollar deposits in the London interbank market.
“ Capital Stock ”
means any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than
a corporation) and any and all warrants, rights or options to
purchase any of the foregoing.
“ Capitalization
” means the sum of (a) Total Funded Debt plus
(b) Net Worth.
“ Change of Control
” means (i) the direct or indirect acquisition by any
person (as such term is defined in Section 13(d) of the
Securities and Exchange Act of 1934, as amended) of beneficial
ownership of more than 50% of the outstanding shares of the capital
stock of the Borrower entitled to vote generally for the election
of directors of the Borrower or (ii) VaPower shall cease to be
a Subsidiary of the Borrower; provided , however ,
that should VaPower cease to be a Subsidiary of the Borrower by
virtue of its merger with or into the Borrower, or with or into any
other Subsidiary of the Borrower, such merger will not constitute a
Change of Control.
“ Closing Date ”
means the date hereof.
“ Code ” means
the Internal Revenue Code of 1986, as amended from time to
time.
“ Commitment ”
means, with respect to each Lender, such Lender’s share of
the Revolving Loan Commitment based upon such Lender’s
Commitment Percentage.
“ Commitment Fees
” has the meaning set forth in
Section 3.4(a).
“ Commitment Fee Margin
” means Commitment Fees payable by the Borrower, the
appropriate applicable percentages, in each case, corresponding to
the Rating of the Borrower in effect from time to time as shown
below:
2
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Long-Term Senior
Unsecured
Non-Credit Enhanced
Debt Rating of
Borrower
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Applicable
Percentage for
Commitment
Fees
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I.
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³
A from S&P or
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.07
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%
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³
A2 from Moody’s or
³
A from Fitch
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II.
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A- from S&P
or
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.08
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%
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A3 from Moody’s or
A- from Fitch
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III.
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BBB+ from
S&P or
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.10
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%
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Baa1 from Moody’s or
BBB+ from Fitch
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IV.
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BBB from
S&P or
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.125
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%
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Baa2 from Moody’s or
BBB from Fitch
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V.
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BBB- from
S&P or
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.15
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%
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Baa3 from Moody’s or
BBB- from Fitch
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VI.
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BB+ from
S&P or
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.20
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%
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Ba1 from Moody’s or
BB+ from Fitch
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VII.
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< BB+ from
S&P or
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.25
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%
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< Ba1 from Moody’s or
< BB+ from Fitch
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Notwithstanding the above, if at any
time there is a split in Ratings among S&P, Moody’s and
Fitch and (i) two Ratings are equal and higher than the third,
the higher Rating will apply, (ii) two Ratings are equal and
lower than the third, the lower Rating will apply or (iii) no
Ratings are equal, the intermediate Rating will apply. In the event
that the Borrower shall maintain Ratings from only two of S&P,
Moody’s and Fitch and the Borrower is split-rated and
(x) the Ratings differential is one level, the higher Rating
will apply and (y) the Ratings differential is two levels or
more, the level one level lower than the higher Rating will
apply.
3
The Commitment Fee Margin shall be
determined and adjusted on the date of any applicable change in the
Rating of the Borrower.
The Commitment Fee Margin payable by
the Borrower shall be the appropriate applicable percentages from
time to time, as shown above, calculated based on the Ratings of
the Borrower at such time.
These Ratings shall be determined
based upon the Rating for the Borrower in effect on such day as
published by S&P, Moody’s and Fitch; it being understood
that the initial Commitment Fee Margin is based on Pricing Level
III (as shown above) and shall remain at Pricing Level III until a
change in the Ratings of the Borrower. The Borrower shall at all
times maintain a Rating from at least two of S&P, Moody’s
and Fitch. If at any time the Borrower does not have a Rating from
at least two of S&P, Moody’s and Fitch, the Commitment
Fee Margin shall be set at Pricing Level VII.
The Borrower shall promptly deliver
to the Administrative Agent, at the address set forth on
Schedule 12.1 , information regarding any change in the
Rating of the Borrower that would change the existing Pricing Level
(as set forth in the chart above) and/or the Commitment
Fees.
“ Commitment Percentage
” means, for each Lender, the percentage identified as its
Commitment Percentage opposite such Lender’s name on
Schedule 1.1 attached hereto, as such percentage may be
modified in accordance with the terms of this Credit
Agreement.
“ Commitment Period
” means the period from the Closing Date to the Maturity
Date.
“ Consolidated
Subsidiary ” means, as to any Person, each Subsidiary of
such Person (whether now existing or hereafter created or
acquired), the financial statements of which are consolidated with
the financial statements of such Person in accordance with GAAP,
including principles of consolidation.
“ Controlled Group
” means (i) the controlled group of corporations as
defined in Section 414(b) of the Code and the applicable
regulations thereunder or (ii) the group of trades or
businesses under common control as defined in Section 414(c)
of the Code and the applicable regulations thereunder, of which the
Borrower is a part or may become a part.
“ Credit Documents
” means this Credit Agreement, the Notes (if any), and all
other related agreements and documents issued or delivered
hereunder or thereunder or pursuant hereto or thereto.
“ Credit Exposure
” has the meaning set forth in the definition of
“Required Lenders” below.
4
“ Default ” means
any event, act or condition which with notice or lapse of time, or
both, would constitute an Event of Default.
“ Defaulting Lender
” means, at any time, any Lender that, at such time
(a) has failed to make a Loan required pursuant to the terms
of this Credit Agreement, (b) has failed to pay to the
Administrative Agent or any Lender an amount owed by such Lender
pursuant to the terms of this Credit Agreement or (c) has been
deemed insolvent or has become subject to a bankruptcy or
insolvency proceeding or to a receiver, trustee or similar
official.
“ Dollar ”,
“ dollar ” and “ $ ” means
lawful currency of the United States.
“ Effective Date
” has the meaning set forth in Section 12.15
hereof.
“ Eligible Assignee
” means (a) any Lender or Affiliate or Subsidiary of a
Lender and (b) any other commercial bank, financial
institution or “accredited investor” (as defined in
Regulation D) that is either a bank organized or licensed under the
laws of the United States of America or any State thereof or that
has agreed to provide the information listed in Section 4.4(d)
to the extent that it may lawfully do so and that is approved by
the Administrative Agent and the Borrower (such approval not to be
unreasonably withheld or delayed); provided that
(i) the Borrower’s consent is not required pursuant to
clause (a) or, with respect to clause (b), during the
existence and continuation of a Default or an Event of Default and
(ii) neither the Borrower nor any Affiliate or Subsidiary of
the Borrower shall qualify as an Eligible Assignee.
“ ERISA ” means
the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the regulations promulgated and the rulings
issued thereunder.
“ ERISA Affiliate
” means each person (as defined in Section 3(9) of
ERISA) which together with the Borrower or any Subsidiary of the
Borrower would be deemed to be a member of the same
“controlled group” within the meaning of
Section 414(b), (c), (m) and (o) of the
Code.
“ Eurodollar Rate
” means with respect to any Eurodollar Revolving Loan, for
the Interest Period applicable thereto, a rate per annum determined
pursuant to the following formula:
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“
Eurodollar Rate ”
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=
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1 - Eurodollar Reserve Percentage
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“ Eurodollar Reserve
Percentage ” means, for any day, that percentage
(expressed as a decimal) which is in effect from time to time under
Regulation D, as such regulation may be amended from time to time
or any successor regulation, as the maximum reserve requirement
(including, without limitation, any basic, supplemental, emergency,
special, or marginal reserves) applicable with respect to
Eurocurrency liabilities as that term is defined in Regulation D
(or against any other category of liabilities that includes
deposits by reference to which the interest rate of Eurodollar
Revolving Loans is determined), whether or not any Lender has any
Eurocurrency liabilities subject to such reserve requirement at
that time. Eurodollar Revolving Loans shall be deemed to constitute
Eurocurrency liabilities and as such shall be deemed subject to
reserve requirements without benefits of credits for proration,
exceptions or offsets that may be available from time to time to a
Lender. The Eurodollar Rate shall be adjusted automatically on and
as of the effective date of any change in the Eurodollar Reserve
Percentage.
5
“ Eurodollar Revolving
Loan ” means a Revolving Loan bearing interest at a rate
of interest determined by reference to the Eurodollar
Rate.
“ Event of Default
” has the meaning specified in Section 10.1.
“ Exchange Act ”
means the Securities and Exchange Act of 1934, as
amended.
“ Existing DRI Credit
Agreement ” means that certain $3,000,000,000 Five-Year
Revolving Credit Agreement, dated as of February 28, 2006
among the Borrower, VaPower and Consolidated Natural Gas Company,
as borrowers, the financial institutions parties thereto as
lenders, and JPMorgan Chase Bank, N.A., as administrative agent, as
amended from time to time.
“ Federal Funds Rate
” means for any day the rate per annum (rounded upward to the
nearest 1/100th of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day; provided that (a) if such
day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the immediately
preceding Business Day and (b) if no such rate is so published
on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate quoted to the Administrative
Agent on such day on such transactions as determined by the
Administrative Agent.
“ Fee Payment Date
” shall mean (a) the first Business Day of each January,
April, July and October and (b) the Maturity Date.
“ Fitch ” means
Fitch Ratings Ltd., or any successor or assignee of the business of
such company in the business of rating securities.
“ Funded Debt ”
means, as to any Person, without duplication: (a) all
Indebtedness of such Person for borrowed money or which has been
incurred in connection with the acquisition of assets (excluding
letters of credit, bankers’ acceptances, Non-Recourse Debt,
Mandatorily Convertible Securities, Trust Preferred Securities and
Hybrid Equity Securities), (b) all capital lease obligations
(including Synthetic Lease Obligations) of such Person and
(c) all Guaranty Obligations of Funded Debt of other
Persons.
“ GAAP ” means
generally accepted accounting principles in the United States
applied on a consistent basis and subject to
Section 1.3.
“ Governmental
Authority ” means any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or
regulatory body.
“ Granting Lender
” has the meaning set forth in Section 12.18
hereof.
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“ Guaranty Obligations
” means, in respect of any Person, any obligation, contingent
or otherwise, of such Person directly or indirectly guaranteeing
any Indebtedness of another Person, including, without limitation,
any obligation (a) to purchase or pay, or advance or supply
funds for the purchase or payment of, such Indebtedness or
(b) entered into primarily for the purpose of assuring the
owner of such Indebtedness of the payment thereof (such as, for
example, but without limitation, an agreement to advance or provide
funds or other support for the payment or purchase of such
Indebtedness or to maintain working capital, solvency or other
balance sheet conditions of such other Person, including, without
limitation, maintenance agreements, comfort letters or similar
agreements or arrangements, or to lease or purchase property,
securities or services) if such obligation would constitute an
indirect guarantee of indebtedness of others, the disclosure of
which would be required in such Person’s financial statements
under GAAP; provided , however , that the term
Guaranty Obligations shall not include (i) endorsements for
deposit or collection in the ordinary course of business,
(ii) obligations under purchased power contracts or
(iii) obligations of such Person otherwise constituting
Guaranty Obligations under this definition to provide contingent
equity support, to keep well, to purchase assets, goods, securities
or services, to take or pay or to maintain financial statement
conditions or otherwise in respect of any Subsidiary or Affiliate
of such Person in connection with the non-utility non-recourse
financing activities of such Subsidiary or Affiliate.
“ Hybrid Equity
Securities ” means any securities issued by the Borrower
or a financing vehicle of the Borrower that (i) are classified
as possessing a minimum of at least “intermediate equity
content” by S&P, at least Basket C equity credit by
Moody’s, and at least 50% equity credit by Fitch and
(ii) require no repayments or prepayments and no mandatory
redemptions or repurchases, in each case, prior to at least 91 days
after the later of the termination of the Commitments and the
repayment in full of the Revolving Loans and all other amounts due
under this Credit Agreement.
“ Indebtedness ”
means, as to any Person, without duplication: (a) all
obligations of such Person for borrowed money or evidenced by
bonds, debentures, notes or similar instruments; (b) all
obligations of such Person for the deferred purchase price of
property or services (except trade accounts payable arising in the
ordinary course of business, customer deposits, provisions for rate
refunds, deferred fuel expenses and obligations in respect of
pensions and other post-retirement benefits); (c) all capital
lease obligations of such Person; (d) all Indebtedness of
others secured by a Lien on any properties, assets or revenues of
such Person (other than stock, partnership interests or other
equity interests of the Borrower or any of its Subsidiaries in
other entities) to the extent of the lesser of the value of the
property subject to such Lien or the amount of such Indebtedness;
(e) all Guaranty Obligations; and (f) all non-contingent
obligations of such Person under any letters of credit or
bankers’ acceptances.
“ Interbank Offered
Rate ” means, for any Eurodollar Revolving Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on any service
selected by the Administrative Agent which has been nominated by
the British Bankers’ Association as an authorized information
vendor for the purpose of displaying the London interbank offered
rate for deposits in Dollars (such as the applicable Reuters’
screen) at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period for a term
comparable to such Interest Period.
7
“ Interest Payment Date
” means (a) as to Base Rate Loans, the last day of each
fiscal quarter and the Maturity Date, and (b) as to Eurodollar
Revolving Loans, the last day of each applicable Interest Period
and the Maturity Date. If an Interest Payment Date falls on a date
which is not a Business Day, such Interest Payment Date shall be
deemed to be the next succeeding Business Day, except that in the
case of Eurodollar Revolving Loans where the next succeeding
Business Day falls in the next succeeding calendar month, then such
Interest Payment Date shall be deemed to be the immediately
preceding Business Day.
“ Interest Period
” means, as to Eurodollar Revolving Loans, a period of 14
days (in the case of new money borrowings) and one, two or three
months’ duration, as the Borrower may elect, commencing, in
each case, on the date of the borrowing (including continuations
and conversions of Eurodollar Revolving Loans); provided ,
however , (i) if any Interest Period would end on a day
which is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day (except that where the next
succeeding Business Day falls in the next succeeding calendar
month, then such Interest Period shall end on the next preceding
Business Day), (ii) no Interest Period shall extend beyond the
Maturity Date and (iii) with respect to Eurodollar Revolving
Loans, where an Interest Period begins on a day for which there is
no numerically corresponding day in the calendar month in which the
Interest Period is to end, such Interest Period shall end on the
last Business Day of such calendar month.
“ Lead Arranger ”
means RBS Securities Corporation d/b/a RBS Greenwich
Capital.
“ Lenders ” means
those banks and other financial institutions identified as such on
the signature pages hereto and such other institutions that may
become Lenders pursuant to Section 12.3(b).
“ LIBOR Market Rate
Spread ” means, at any time for any Eurodollar Revolving
Loan for any Interest Period, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) equal to (x) 110%
multiplied by (y) the Borrower’s 1-year credit
default swap mid-rate spread (as provided by Markit Group Limited
or any successor thereto (the “ Quotation Agency
”)) for the one-year period beginning on the Rate Set Date
(as defined below), appearing on the Quotation Agency’s
website at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period (the “ Rate
Set Date ”); provided , that the LIBOR Market Rate
Spread shall in no event be less than 0.50% or greater than 1.00%;
provided , further that in the event that the LIBOR
Market Rate Spread is not available from the Quotation Agency on
the Rate Set Date for any Interest Period, the LIBOR Market Rate
Spread shall be 1.00% for such Interest Period.
“ Lien ” means
any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including
any agreement to give any of the foregoing, any conditional sale or
other title retention agreement, any financing or similar statement
or notice filed under the Uniform Commercial Code as adopted and in
effect in the relevant jurisdiction or other similar recording or
notice statute, and any lease in the nature thereof).
“ Loan ” means
any loan made by any Lender pursuant to this Credit
Agreement.
8
“ Mandatorily Convertible
Securities ” means any mandatorily convertible
equity-linked securities issued by the Borrower, so long as the
terms of such securities require no repayments or prepayments and
no mandatory redemptions or repurchases, in each case prior to at
least 91 days after the later of the termination of the Commitments
and the repayment in full of the Loans and all other amounts due
under this Credit Agreement.
“ Material Adverse
Effect ” means a material adverse effect, after taking
into account applicable insurance, if any, on (a) the
operations, financial condition or business of the Borrower,
(b) the ability of the Borrower to perform its obligations
under this Credit Agreement or (c) the validity or
enforceability of this Credit Agreement or any of the other Credit
Documents against the Borrower, or the rights and remedies of the
Lenders against the Borrower hereunder or thereunder;
provided , however , that a transfer of assets
permitted under and in compliance with Section 9.3 shall not
be considered to have a Material Adverse Effect.
“ Material Subsidiary
” shall mean a Subsidiary of the Borrower whose total assets
(as determined in accordance with GAAP) represent at least 20% of
the total assets of the Borrower, on a consolidated
basis.
“ Maturity Date ”
means July 28, 2009.
“ Moody’s ”
means Moody’s Investors Service, Inc., or any successor or
assignee of the business of such company in the business of rating
securities.
“ Multiemployer Plan
” means at any time an employee pension benefit plan within
the meaning of Section 4001(a)(3) of ERISA to which any member
of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding five plan years made
contributions, including for these purposes any Person which ceased
to be a member of the Controlled Group during such five year period
but only with respect to the period during which such Person was a
member of the Controlled Group.
“ Net Worth ”
means as of any date, the shareholders’ equity or net worth
of the Borrower and its Consolidated Subsidiaries (including, but
not limited to, the face amount of any Mandatorily Convertible
Securities, Trust Preferred Securities, Hybrid Equity Securities
and Preferred Stock; but, excluding the accumulated other
comprehensive income or loss component of shareholders’
equity), on a consolidated basis, as determined in accordance with
GAAP.
“ Non-Recourse Debt
” means Indebtedness (a) as to which the Borrower
(i) does not provide credit support of any kind (including any
undertaking, agreement or instrument that would constitute
Indebtedness), (ii) is not directly or indirectly liable as a
guarantor or otherwise, or (iii) is not the lender;
(b) no default with respect to which would permit upon notice,
lapse of time or both any holder of any other Indebtedness (other
than the Loans or the Notes) of the Borrower to declare a default
on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity; and
(c) as to which the lenders will not have any recourse to the
stock or assets of the Borrower (other than the specific assets
pledged to secure such Indebtedness) and the relevant legal
documents so provide.
9
“ Non-Regulated Assets
” means with respect to the Borrower, the operations that are
not regulated by a Governmental Authority (i.e. merchant
generation, exploration and production, producer services or retail
supply assets of the Borrower).
“ Notes ” means
the collective reference to the Revolving Loan Notes of the
Borrower.
“ Notice of Borrowing
” means a request by the Borrower for a Loan in the form of
Exhibit 2.2(a) .
“ Notice of
Continuation/Conversion ” means a request by the Borrower
for the continuation or conversion of a Loan in the form of
Exhibit 2.2(c) .
“ Other Taxes ”
has the meaning set forth in Section 4.4(b) hereof.
“ PBGC ” means
the Pension Benefit Guaranty Corporation established under ERISA
and any successor thereto.
“ Pension Plans ”
has the meaning set forth in Section 8.8 hereof.
“ Person ” means
any individual, partnership, joint venture, firm, corporation,
limited liability company, association, trust or other enterprise
(whether or not incorporated), or any government or political
subdivision or any agency, department or instrumentality
thereof.
“ Plan ” means
any single-employer plan as defined in Section 4001 of ERISA,
which is maintained, or at any time during the five calendar years
preceding the date of this Credit Agreement was maintained, for
employees of the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate of the Borrower.
“ Preferred Stock
” means any Capital Stock issued by the Borrower that is
entitled to preference or priority over any other Capital Stock of
the Borrower in respect of the payment of dividends or distribution
of assets upon liquidation, or both.
“ Prime Rate ”
means the per annum rate of interest as notified to the Borrower by
the Administrative Agent from time to time as its Prime Rate. Any
change in the interest rate resulting from a change in the Prime
Rate shall become effective as of 12:01 a.m. of the Business Day on
which each change in the Prime Rate is announced by the
Administrative Agent. The Prime Rate is a reference rate used by
the Administrative Agent in determining interest rates on certain
loans and is not intended to be the lowest rate of interest charged
on any extension of credit to any debtor.
“ Rating ” means
the rating assigned by S&P, Moody’s or Fitch to the
Borrower based on the Borrower’s senior, unsecured,
non-credit-enhanced obligations.
“ RBS ” means The
Royal Bank of Scotland plc.
“ Register ” has
the meaning set forth in Section 12.3(c).
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“ Regulation A, D, T, U or
X ” means Regulation A, D, T, U or X, respectively, of
the Board of Governors of the Federal Reserve System as from time
to time in effect and any successor to all or a portion
thereof.
“ Reportable Event
” means a “reportable event” as defined in
Section 4043 of ERISA with respect to which the notice
requirements to the PBGC have not been waived.
“ Required Lenders
” means Lenders whose aggregate Credit Exposure (as
hereinafter defined) constitutes more than 50% of the aggregate
Credit Exposure of all Lenders at such time; provided ,
however , that if any Lender shall be a Defaulting Lender at
such time then there shall be excluded from the determination of
Required Lenders the aggregate principal amount of Credit Exposure
of such Lender at such time. For purposes of the preceding
sentence, the term “ Credit Exposure ” as
applied to each Lender shall mean (a) at any time prior to the
termination of the Commitments, the Commitment Percentage of such
Lender multiplied by the Revolving Loan Commitment and (b) at
any time after the termination of the Commitments, the outstanding
amount of Loans owed to such Lender.
“ Revolving Loan
” means a Loan made by the Lenders to the Borrower pursuant
to Section 2.1(a) hereof.
“ Revolving Loan
Commitment ” means Five Hundred Million Dollars
($500,000,000), as such amount may be otherwise reduced in
accordance with Section 2.5.
“ Revolving Loan Notes
” means the promissory notes of the Borrower in favor of each
Lender evidencing the Revolving Loans made to the Borrower and
substantially in the form of Exhibit 2.7(a) , as such
promissory notes may be amended, modified, supplemented or replaced
from time to time.
“ S&P ” means
Standard & Poor’s Ratings Group, a division of
McGraw Hill, Inc., or any successor or assignee of the business of
such division in the business of rating securities.
“ Solvent ”
means, with respect to any Person as of a particular date, that on
such date (a) the fair saleable value (on a going concern
basis) of such Person’s assets exceeds its liabilities,
contingent or otherwise, fairly valued, (b) such Person will
be able to pay its debts as they become due, (c) such Person
does not have unreasonably small capital with which to satisfy all
of its current and reasonably anticipated obligations and
(d) such Person does not intend to incur nor does it
reasonably anticipate that it will incur debts beyond its ability
to pay as such debts become due.
“ SPV ” has the
meaning set forth in Section 12.18 hereof.
“ Subsidiary ”
means, as to any Person, (a) any corporation more than 50% of
whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time, any class
or classes of such corporation shall have or might have voting
power by reason of the happening of any contingency) is at the time
owned by such Person directly or indirectly through Subsidiaries
and (b) any partnership, association, joint venture or other
entity in which such Person directly or indirectly through
Subsidiaries has more than 50% equity interest at any
time.
11
“ Synthetic Lease
” means each arrangement, however described, under which the
obligor accounts for its interest in the property covered thereby
under GAAP as lessee of a lease which is not a capital lease under
GAAP and accounts for its interest in the property covered thereby
for federal income tax purposes as the owner.
“ Synthetic Lease
Obligation ” means, as to any Person with respect to any
Synthetic Lease at any time of determination, the amount of the
liability of such Person in respect of such Synthetic Lease that
would (if such lease was required to be classified and accounted
for as a capital lease on a balance sheet of such Person in
accordance with GAAP) be required to be capitalized on the balance
sheet of such Person at such time.
“ Taxes ” has the
meaning set forth in Section 4.4(a).
“ Total Funded Debt
” means all Funded Debt of the Borrower and its Consolidated
Subsidiaries, on a consolidated basis, as determined in accordance
with GAAP.
“ Trust Preferred
Securities ” means the trust preferred securities issued
by a subsidiary capital trust established by the Borrower
outstanding on the date hereof and reflected as junior subordinated
notes in the financial statements of the Borrower for the fiscal
year ended December 31, 2007, and any additional trust
preferred securities that are substantially similar thereto, along
with the junior subordinated debt obligations of the Borrower, so
long as (a) the terms thereof require no repayments or
prepayments and no mandatory redemptions or repurchases, in each
case prior to at least 91 days after the later of the termination
of the Commitments and the repayment in full of the Loans and all
other amounts due under this Credit Agreement, (b) such
securities are subordinated and junior in right of payment to all
obligations of the Borrower for or in respect of borrowed money and
(c) the obligors in respect of such preferred securities and
subordinated debt have the right to defer interest and dividend
payments, in each case to substantially the same extent as such
currently outstanding preferred securities or on similar terms
customary for trust preferred securities and not materially less
favorable to the interests of the Borrower or the
Lenders.
“ VaPower ” means
Virginia Electric and Power Company, a Virginia corporation and its
successors and assigns.
“ VaPower Indenture
” means the first mortgage bond indenture, dated
November 1, 1935, by and between VaPower and The Chase
Manhattan Bank, as supplemented and amended.
“ Wholly Owned
Subsidiary ” means, as to any Person, any other Person
all of the Capital Stock of which (other than de minimis
directors’ qualifying shares or local ownership shares
required by law and outstanding publicly owned Preferred Stock of
VaPower) is owned by such Person directly and/or through other
Wholly Owned Subsidiaries.
1.2 Computation of Time
Periods; Other Definitional Provisions .
For purposes of computation of
periods of time hereunder, the word “from” means
“from and including” and the words “to” and
“until” each mean “to but excluding.”
References in this Credit Agreement to “Sections”,
“Schedules” and “Exhibits” shall be to
Sections, Schedules or Exhibits of or to this Credit Agreement
unless otherwise specified.
12
1.3 Accounting Terms
.
Except as otherwise expressly
provided herein, all accounting terms used herein shall be
interpreted, and all financial statements and certificates and
reports as to financial matters required to be delivered to the
Lenders hereunder shall be prepared, in accordance with GAAP
applied on a consistent basis. All calculations made for the
purposes of determining compliance with this Credit Agreement shall
(except as otherwise expressly provided herein) be made by
application of GAAP applied on a basis consistent with the most
recent annual or quarterly financial statements delivered pursuant
to Section 8.1 (or, prior to the delivery of the first
financial statements pursuant to Section 8.1, consistent with
the financial statements described in Section 6.1(f));
provided , however , if (a) the Borrower shall
object to determining such compliance on such basis at the time of
delivery of such financial statements due to any change in GAAP or
the rules promulgated with respect thereto or (b) the
Administrative Agent or the Required Lenders shall so object in
writing within 30 days after delivery of such financial statements,
then such calculations shall be made on a basis consistent with the
most recent financial statements delivered by the Borrower to the
Lenders as to which no such objection shall have been
made.
1.4 Time .
All references to time herein shall
be references to Eastern Standard Time or Eastern Daylight time, as
the case may be, unless specified otherwise.
SECTION 2. LOANS
2.1 Revolving Loan
Commitment .
(a) Revolving Loans . Subject
to the terms and conditions set forth herein, each Lender severally
agrees to make revolving loans to the Borrower in Dollars, at any
time and from time to time, during the Commitment Period (each a
“ Revolving Loan ” and collectively the “
Revolving Loans ”); provided that (i) the
aggregate amount of Revolving Loans outstanding to the Borrower on
any day shall not exceed the Revolving Loan Commitment and
(ii) with respect to each individual Lender, the
Lender’s pro rata share of outstanding
Revolving Loans then outstanding on any day shall not exceed such
Lender’s Commitment Percentage of the Revolving Loan
Commitment. Subject to the terms and conditions of this Credit
Agreement, the Borrower may borrow, repay and reborrow the amount
of the Revolving Loan Commitment made to it.
(b) Intentionally Omitted
.
2.2 Method of Borrowing for
Revolving Loans .
(a) Base Rate Loans . By no
later than 11:00 a.m. on the Business Day of the Borrower’s
request for a Base Rate Loan (or for the conversion of Eurodollar
Revolving Loans to Base Rate Loans), the Borrower shall submit a
Notice of Borrowing to the Administrative Agent setting forth
(i) the amount requested, (ii) the desire to have such
Revolving Loans accrue interest at the Base Rate and
(iii) except in the case of conversions of Eurodollar
Revolving Loans to Base Rate Loans, complying in all respects with
Section 6.2 hereof.
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(b) Eurodollar Revolving
Loans . By no later than 11:00 a.m. three Business Days prior
to the date of the Borrower’s request for a Eurodollar
Revolving Loan (or for the conversion of Base Rate Loans to
Eurodollar Revolving Loans or the continuation of existing
Eurodollar Revolving Loans), the Borrower shall submit a Notice of
Borrowing to the Administrative Agent setting forth (i) the
amount requested, (ii) the desire to have such Revolving Loans
accrue interest at the Adjusted Eurodollar Rate, (iii) the
Interest Period applicable thereto, and (iv) except in the
case of conversions of Base Rate Loans to Eurodollar Revolving
Loans or the continuation of existing Eurodollar Revolving Loans,
complying in all respects with Section 6.2 hereof.
(c) Continuation and
Conversion . The Borrower shall have the option, on any
Business Day, to continue existing Eurodollar Revolving Loans made
to it for a subsequent Interest Period, to convert Base Rate Loans
made to it into Eurodollar Revolving Loans or to convert Eurodollar
Revolving Loans made to it into Base Rate Loans. By no later than
11:00 a.m. (a) on the date of the requested conversion of a
Eurodollar Revolving Loan to a Base Rate Loan or (b) three
Business Days prior to the date for a requested continuation of a
Eurodollar Revolving Loan or conversion of a Base Rate Loan to a
Eurodollar Revolving Loan, the Borrower shall provide telephonic
notice to the Administrative Agent, followed promptly by a written
Notice of Continuation/Conversion, setting forth (i) whether
the Borrower wishes to continue or convert such Loans and
(ii) if the request is to continue a Eurodollar Revolving Loan
or convert a Base Rate Loan to a Eurodollar Revolving Loan, the
Interest Period applicable thereto. Notwithstanding anything herein
to the contrary, (i) except as provided in Section 4.1
hereof, Eurodollar Revolving Loans may be converted to Base Rate
Loans only on the last day of an Interest Period applicable
thereto; (ii) Eurodollar Revolving Loans may be continued and
Base Rate Loans may be converted to Eurodollar Revolving Loans only
if no Default or Event of Default with respect to the Borrower is
in existence on the date of such extension or conversion;
(iii) any continuation or conversion must comply with Sections
2.2(a) or 2.2(b) hereof, as applicable; and (iv) failure by
the Borrower to properly continue Eurodollar Revolving Loans at the
end of an Interest Period shall be deemed a conversion to Base Rate
Loans.
2.3 Funding of Revolving
Loans .
Upon receipt of a Notice of
Borrowing, the Administrative Agent shall promptly inform the
Lenders as to the terms thereof. Each Lender will make its
pro rata share of the Revolving Loans available to
the Administrative Agent by 1:00 p.m. on the date specified in the
Notice of Borrowing by deposit (in Dollars) of immediately
available funds at the office of the Administrative Agent, or at
such other address as the Administrative Agent may designate in
writing. All Revolving Loans shall be made by the Lenders
pro rata on the basis of each Lender’s
Commitment Percentage.
No Lender shall be responsible for
the failure or delay by any other Lender in its obligation to make
Loans hereunder; provided , however , that the
failure of any Lender to fulfill its obligations hereunder shall
not relieve any other Lender of its obligations hereunder. Unless
the Administrative Agent shall have been notified by any Lender
prior to the time of any such Loan
14
that such Lender does not intend to make
available to the Administrative Agent its portion of the Loans to
be made on such date, the Administrative Agent may assume that such
Lender has made such amount available to the Administrative Agent
on the date of such Loans, and the Administrative Agent in reliance
upon such assumption, may (in its sole discretion without any
obligation to do so) make available to the Borrower a corresponding
amount. If such corresponding amount is not in fact made available
to the Administrative Agent, the Administrative Agent shall be able
to recover such corresponding amount from such Lender. If such
Lender does not pay such corresponding amount forthwith upon the
Administrative Agent’s demand therefor, the Administrative
Agent will promptly notify the Borrower and the Borrower shall
immediately pay such corresponding amount to the Administrative
Agent. The Administrative Agent shall also be entitled to recover
from the Lender or the Borrower, as the case may be, interest on
such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent
to the Borrower to the date such corresponding amount is recovered
by the Administrative Agent at a per annum rate equal to
(a) the applicable rate for such Loan pursuant to the Notice
of Borrowing, if recovered from the Borrower, and (b) the
Federal Funds Rate, if recovered from a Lender.
2.4 Minimum Amounts of
Revolving Loans .
Each request for Revolving Loans
shall be, in the case of Eurodollar Revolving Loans, in an
aggregate principal amount that is not less than the lesser of
$10,000,000 or the remaining amount available to be borrowed and,
in the case of Base Rate Loans, in an aggregate principal amount
that is not less than the lesser of $5,000,000 or the remaining
amount available to be borrowed. Any Revolving Loan requested shall
be in an integral multiple of $1,000,000 unless the request is for
all of the remaining amount available to be borrowed.
2.5 Reductions of Revolving
Loan Commitment .
Upon at least three Business
Days’ notice, the Borrower shall have the right to
permanently terminate or reduce the aggregate unused amount of the
Revolving Loan Commitment available to it at any time or from time
to time; provided that (a) each partial reduction shall
be in an aggregate amount at least equal to $10,000,000 and in
integral multiples of $1,000,000 above such amount and (b) no
reduction shall be made which would reduce the Revolving Loan
Commitment to an amount less than the then outstanding Revolving
Loans. Any reduction in (or termination of) the Revolving Loan
Commitment shall be permanent and may not be reinstated.
2.6 RESERVED
.
2.7 Notes .
(a) Revolving Loan Notes .
The Revolving Loans made by the Lenders to the Borrower shall be
evidenced, upon request by any Lender, by a promissory note of the
Borrower payable to each Lender in substantially the form of
Exhibit 2.7(a) hereto (the “ Revolving Loan
Notes ”) and in a principal amount equal to the amount of
such Lender’s Commitment Percentage of the Revolving Loan
Commitment as originally in effect.
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(b) Intentionally Omitted
.
The date, amount, type, interest
rate and duration of Interest Period (if applicable) of each Loan
made by each Lender to the Borrower, and each payment made on
account of the principal thereof, shall be recorded by such Lender
on its books; provided that the failure of such Lender to
make any such recordation or endorsement shall not affect the
obligations of the Borrower to make a payment when due of any
amount owing hereunder or under any Note in respect of the Loans to
be evidenced by such Note, and each such recordation or endorsement
shall be conclusive and binding absent manifest error.
2.8 RESERVED
SECTION 3.
PAYMENTS
3.1 Interest
.
(a) Interest Rate
.
(i) All Base Rate Loans made to the
Borrower shall accrue interest at the Adjusted Base
Rate.
(ii) All Eurodollar Revolving Loans
made to the Borrower shall accrue interest at the Adjusted
Eurodollar Rate applicable to such Eurodollar Revolving
Loan.
(b) Default Rate of Interest
. Upon the occurrence, and during the continuance, of an Event of
Default, the principal of and, to the extent permitted by law,
interest on the Loans outstanding to the Borrower and any other
amounts owing by the Borrower hereunder or under the other Credit
Documents shall bear interest, payable on demand, at a per annum
rate equal to 2% plus the rate which would otherwise be applicable
(or if no rate is applicable, then the rate for Loans outstanding
to the Borrower that are Base Rate Loans plus 2% per
annum).
(c) Interest Payments .
Except as otherwise provided in subsection (b) above, interest
on Loans shall be due and payable in arrears on each Interest
Payment Date.
3.2 Prepayments
.
(a) Voluntary Prepayments .
The Borrower shall have the right to prepay Loans in whole or in
part from time to time without premium or penalty; provided,
however, that (i) Eurodollar Revolving Loans may only be
prepaid on three Business Days’ prior written notice to the
Administrative Agent and any prepayment of Eurodollar Revolving
Loans will be subject to Section 4.3 hereof and (ii) each
such partial prepayment of Loans shall be in the minimum principal
amount of $10,000,000. Amounts prepaid hereunder shall be applied
as the Borrower may elect; provided that if the Borrower fails to
specify the application of a voluntary prepayment then such
prepayment shall be applied in each case first to Base Rate Loans
of the Borrower and then to Eurodollar Revolving Loans of the
Borrower in direct order of Interest Period maturities.
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(b) Mandatory Prepayments .
If at any time the amount of Revolving Loans outstanding exceeds
the Revolving Loan Commitment, the Borrower shall immediately make
a principal payment to the Administrative Agent in the manner and
in an amount necessary to be in compliance with Section 2.1
hereof. Any payments made under this Section 3.2(b) shall be
subject to Section 4.3 hereof and shall be applied first to
Base Rate Loans, then to Eurodollar Revolving Loans in direct order
of Interest Period maturities.
3.3 Payment in Full at
Maturity .
On the Maturity Date, the entire
outstanding principal balance of all Loans, together with accrued
but unpaid interest and all other sums owing under this Credit
Agreement, shall be due and payable in full, unless accelerated
sooner pursuant to Section 10 hereof.
3.4 Fees .
(a) Commitment Fees
.
(i) In consideration of the
Revolving Loan Commitment being made available by the Lenders
hereunder, the Borrower agrees to pay to the Administrative Agent,
for the pro rata benefit of each Lender, a per annum
fee equal to the Commitment Fee Margin multiplied by the daily
average Available Revolving Loan Commitment (the “
Commitment Fees ”).
(ii) The accrued Commitment Fees
shall be due and payable in arrears on each Fee Payment Date (as
well as on any date that the Revolving Loan Commitment is reduced)
for the immediately preceding fiscal quarter (or portion thereof),
beginning with the first of such dates to occur after the Closing
Date.
(b) Intentionally
Omitted.
(c) Administrative Fees . The
Borrower agrees to pay to the Administrative Agent an annual fee as
agreed to between the Borrower and the Administrative
Agent.
3.5 Place and Manner of
Payments .
All payments of principal, interest,
fees, expenses and other amounts to be made by the Borrower under
this Credit Agreement shall be received not later than 2:00 p.m. on
the date when due in Dollars and in immediately available funds,
without setoff, deduction, counterclaim or withholding of any kind,
by the Administrative Agent at its offices in Connecticut. The
Borrower shall, at the time it makes any payment under this Credit
Agreement, specify to the Administrative Agent, the Loans, fees or
other amounts payable by the Borrower hereunder to which such
payment is to be applied (and in the event that it fails to
specify, or if such application would be inconsistent with the
terms hereof, the Administrative Agent, shall distribute such
payment to the Lenders in such manner as it reasonably determines
in its sole discretion).
17
3.6 Pro Rata Treatment
.
Except to the extent otherwise
provided herein, all Revolving Loans, each payment or prepayment of
principal of any Revolving Loan, each payment of interest on the
Revolving Loans, each payment of Commitment Fees, each reduction of
the Revolving Loan Commitment, and each conversion or continuation
of any Revolving Loans, shall be allocated pro rata
among the Lenders in accordance with the respective Commitment
Percentages.
3.7 Computations of
Interest and Fees .
(a) Except for Base Rate Loans
calculated using the Prime Rate, on which interest shall be
computed on the basis of a 365 or 366 day year as the case may be,
all computations of interest and fees hereunder shall be made on
the basis of the actual number of days elapsed over a year of 360
days.
(b) It is the intent of the Lenders
and the Borrower to conform to and contract in strict compliance
with applicable usury law from time to time in effect. All
agreements between the Lenders and the Borrower are hereby limited
by the provisions of this paragraph which shall override and
control all such agreements, whether now existing or hereafter
arising and whether written or oral. In no way, nor in any event or
contingency (including but not limited to prepayment or
acceleration of the maturity of any obligation), shall the interest
taken, reserved, contracted for, charged, or received under this
Credit Agreement, under the Notes or otherwise, exceed the maximum
non-usurious amount permissible under applicable law. If, from any
possible construction of any of the Credit Documents or any other
document, interest would otherwise be payable in excess of the
maximum non-usurious amount, any such construction shall be subject
to the provisions of this paragraph and such documents shall be
automatically reduced to the maximum non-usurious amount permitted
under applicable law, without the necessity of execution of any
amendment or new document. If any Lender shall ever receive
anything of value which is characterized as interest on the Loans
under applicable law and which would, apart from this provision, be
in excess of the maximum lawful amount, an amount equal to the
amount which would have been excessive interest shall, without
penalty, be applied to the reduction of the principal amount owing
on the Loans and not to the payment of interest, or refunded to the
Borrower or the other payor thereof if and to the extent such
amount which would have been excessive exceeds such unpaid
principal amount of the Loans. The right to demand payment of the
Loans of the Borrower or any other indebtedness evidenced by any of
the Credit Documents does not include the right to receive any
interest which has not otherwise accrued on the date of such
demand, and the Lenders do not intend to charge or receive any
unearned interest in the event of such demand. All interest paid or
agreed to be paid to the Lenders with respect to the Loans shall,
to the extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full stated term (including
any renewal or extension) of the Loans so that the amount of
interest on account of such indebtedness does not exceed the
maximum non-usurious amount permitted by applicable law.
3.8 Sharing of Payments
.
Each Lender agrees that, in the
event that any Lender shall obtain payment in respect of any
Revolving Loan owing to such Lender under this Credit Agreement
through the exercise of a right of set-off, banker’s lien,
counterclaim or otherwise (including, but not limited to, pursuant
to the Bankruptcy Code) in excess of its pro rata
share as provided for in this Credit Agreement, such
18
Lender shall promptly purchase from the other
Lenders a participation in such Loans, in such amounts and with
such other adjustments from time to time, as shall be equitable in
order that all Lenders share such payment in accordance with their
respective ratable shares as provided for in this Credit Agreement.
Each Lender further agrees that if a payment to a Lender (which is
obtained by such Lender through the exercise of a right of set-off,
banker’s lien, counterclaim or otherwise) shall be rescinded
or must otherwise be restored, each Lender which shall have shared
the benefit of such payment shall, by repurchase of a participation
theretofore sold, return its share of that benefit to each Lender
whose payment shall have been rescinded or otherwise restored. The
Borrower agrees that any Lender so purchasing such a participation
in Loans made to the Borrower may, to the fullest extent permitted
by law, exercise all rights of payment, including set-off,
banker’s lien or counterclaim, with respect to such
participation as fully as if such Lender were a holder of such Loan
or other obligation in the amount of such participation. Except as
otherwise expressly provided in this Credit Agreement, if any
Lender shall fail to remit to the Administrative Agent or any other
Lender an amount payable by such Lender to the Administrative Agent
or such other Lender pursuant to this Credit Agreement on the date
when such amount is due, such payments shall accrue interest
thereon, for each day from the date such amount is due until the
day such amount is paid to the Administrative Agent or such other
Lender, at a rate per annum equal to the Federal Funds
Rate.
3.9 Evidence of Debt
.
(a) Each Lender shall maintain an
account or accounts evidencing each Loan made by such Lender to the
Borrower from time to time, including the amounts of principal and
interest payable and paid to such Lender by or for the account of
the Borrower from time to time under this Credit Agreement. Each
Lender will make reasonable efforts to maintain the accuracy of its
account or accounts and to promptly update its account or accounts
from time to time, as necessary.
(b) The Administrative Agent shall
maintain the Register for the Borrower pursuant to
Section 12.3(c), and a subaccount for each Lender, in which
Registers and subaccounts (taken together) shall be recorded
(i) the amount, type and Interest Period of each such Loan
hereunder, (ii) the amount of any principal or interest due
and payable or to become due and payable to each Lender hereunder
and (iii) the amount of any sum received by the Administrative
Agent hereunder from or for the account of the Borrower and each
Lender’s share thereof. The Administrative Agent will make
reasonable efforts to maintain the accuracy of the subaccounts
referred to in the preceding sentence and to promptly update such
subaccounts from time to time, as necessary.
(c) The entries made in the
accounts, Registers and subaccounts maintained pursuant to
subsection (b) of this Section 3.9 (and, if consistent
with the entries of the Administrative Agent, subsection (a)) shall
be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided ,
however, that the failure of any Lender or the Administrative Agent
to maintain any such account, such Registers or such subaccounts,
as applicable, or any error therein, shall not in any manner affect
the obligation of the Borrower to repay the Loans made by such
Lender to the Borrower in accordance with the terms
hereof.
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SECTION 4. ADDITIONAL PROVISIONS
REGARDING LOANS
4.1 Eurodollar Revolving
Loan Provisions .
(a) Unavailability . In the
event that the Administrative Agent shall have determined in good
faith (i) that U.S. dollar deposits in the principal amounts
requested with respect to a Eurodollar Revolving Loan are not
generally available in the London interbank Eurodollar market or
(ii) that reasonable means do not exist for ascertaining the
Eurodollar Rate, the Administrative Agent shall, as soon as
practicable thereafter, give notice of such determination to the
Borrower and the Lenders. In the event of any such determination
under clauses (i) or (ii) above, until the Administrative
Agent shall have advised the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist,
(A) any request by the Borrower for Eurodollar Revolving Loans
shall be deemed to be a request for Base Rate Loans, and
(B) any request by the Borrower for conversion into or
continuation of Eurodollar Revolving Loans shall be deemed to be a
request for conversion into or continuation of Base Rate
Loans.
(b) Change in Legality
.
(i) Notwithstanding any other
provision herein, if any change in 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 Lender to make or maintain any Eurodollar Revolving Loan or
to give effect to its obligations as contemplated hereby with
respect to any Eurodollar Revolving Loan, then, by written notice
to the Borrower and to the Administrative Agent, such Lender
may:
(A) declare that Eurodollar
Revolving Loans, and conversions to or continuations of Eurodollar
Revolving Loans, will not thereafter be made by such Lender to the
Borrower hereunder, whereupon any request by the Borrower for, or
for conversion into or continuation of, Eurodollar Revolving Loans
shall, as to such Lender only, be deemed a request for, or for
conversion into or continuation of, Base Rate Loans, unless such
declaration shall be subsequently withdrawn; and
(B) require that all outstanding
Eurodollar Revolving Loans made by it to the Borrower be converted
to Base Rate Loans in which event all such Eurodollar Revolving
Loans shall be automatically converted to Base Rate
Loans.
In the event any Lender shall
exercise its rights under clause (A) or (B) above, all
payments and prepayments of principal which would otherwise have
been applied to repay the Eurodollar Revolving Loans that would
have been made by such Lender to the Borrower or the converted
Eurodollar Revolving Loans of such Lender to the Borrower shall
instead be applied to repay the Base Rate Loans made by such Lender
to the Borrower in lieu of, or resulting from the conversion of,
such Eurodollar Revolving Loans.
(c) Increased Costs . If at
any time a Lender shall incur increased costs or reductions in the
amounts received or receivable hereunder with respect to the
making, the commitment to make or the maintaining of any Eurodollar
Revolving Loan because of (i) any change since the date of
this Credit Agreement in any applicable law, governmental rule,
regulation, guideline or order (or in the interpretation or
administration thereof and including the introduction of any new
law or governmental rule, regulation,
20
guideline or such order) including, without
limitation, the imposition, modification or deemed applicability of
any reserves, deposits or similar requirements (such as, for
example, but not limited to, a change in official reserve
requirements, but, in all events, excluding reserves required under
Regulation D to the extent included in the computation of the
Adjusted Eurodollar Rate) or (ii) other circumstances
affecting the London interbank Eurodollar market; then the Borrower
shall pay to such Lender promptly upon written demand therefor,
such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such
Lender may determine in its sole discretion) as may be required to
compensate such Lender for such increased costs or reductions in
amounts receivable hereunder.
Each determination and calculation
made by a Lender under this Section 4.1 shall, absent manifest
error, be binding and conclusive on the parties hereto.
4.2 Capital Adequacy
.
If, after the date hereof, any
Lender has determined that the adoption or effectiveness of any
applicable law, rule or regulation regarding capital adequacy, or
any change therein, or any change in the interpretation or
administration thereof by any Governmental Authority, central bank
or comparable agency charged with the interpretation or
administration thereof, or compliance by such Lender (or its parent
corporation) 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 Lender’s (or
parent corporation’s) capital or assets as a consequence of
its commitments or obligations hereun