|
"
Agreement " means this Revolving Credit Agreement, as the
same may be amended from time to time.
"
Applicable Lending Office " means, with respect to any Bank,
(i) in the case of its Base Rate Loans, its Domestic Lending
Office, (ii) in the case of its Euro-Dollar Loans, its Euro-Dollar
Lending Office and (iii) in the case of its Money Market Loans, its
Money Market Lending Office.
"
Assignee " has the meaning set forth in Section 9.06(c).
"
Bank " means each bank listed on the signature pages hereof,
each Assignee which becomes a Bank pursuant to Section 9.06(c), and
their respective successors.
"
Base Rate " means, for any day, a rate per annum equal to
the higher of (i) the Prime Rate for such day and (ii) the sum of
1 / 2 of 1% plus the
Federal Funds Rate for such day.
"
Base Rate Loan " means a Committed Loan that bears interest
at the Base Rate pursuant to the applicable Notice of Committed
Borrowing or Notice of Interest Rate Election or the last sentence
of Section 2.08(a) or Article 8.
"
Bonds " means any bonds issued pursuant to either or both of
the Indentures, as the context may require.
"
Borrower " means the National Rural Utilities Cooperative
Finance Corporation, a not-for-profit cooperative association
incorporated under the laws of the District of Columbia, and its
successors.
"
Borrowing " has the meaning set forth in Section 1.03.
"
Co-Documentation Agents " means ABN AMRO Bank N.V., The Bank
of Tokyo-Mitsubishi UFJ, Ltd., New York Branch and The Royal Bank
of Scotland plc, each in its capacity as co-documentation agent
hereunder, and their successors in such capacity.
"
Commitment " means (i) with respect to each Bank listed on
the signature pages hereof, the amount set forth opposite the name
of such Bank on the Commitment Schedule hereto and (ii) with
respect to any Assignee that becomes a Bank pursuant to Section
9.06(c), the amount of the transferor Bank's Commitment assigned to
it pursuant to Section 9.06(c), in each case as such amount may
from time to time be reduced pursuant to Sections 2.10 and 2.11;
provided that, if the context so requires, the term
"Commitment" means the obligation of a Bank to extend credit up to
such amount to the Borrower hereunder.
"
Committed Borrowing " means a Borrowing under Section
2.01.
2
"
Committed Loan " means a Revolving Loan or a Term Loan;
provided that, if any such loan or loans (or portions
thereof) are combined or subdivided pursuant to a Notice of
Interest Rate Election, the term "Committed Loan" shall refer to
the combined principal amount resulting from such combination or to
each of the separate principal amounts resulting from such
subdivision, as the case may be.
"
Commitment Termination Date " means March 14, 2008 or, if
such day is not a Euro-Dollar Business Day, the next preceding
Euro-Dollar Business Day.
"
Consolidated Subsidiary " means at any date any Subsidiary
and any other entity the accounts of which would be combined or
consolidated with those of the Borrower in its combined or
consolidated financial statements if such statements were prepared
as of such date.
"
Consolidated Subsidiary Member " has the meaning set
forth in Section 5.03(b)(iii)(A).
"
Default " means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of
time or both (as specified in Section 6.01) would, unless cured or
waived, become an Event of Default.
"
Derivative Cash Settlements " means, for any period, the
line item "derivative cash settlements" as it appears on the
statement of operations of the Borrower and its Consolidated
Subsidiaries for such period delivered to the Banks pursuant to
Section 5.03(b), calculated in accordance with generally accepted
accounting principles as in effect from time to time.
"
Derivatives Obligations " of any Person means all
obligations of such Person in respect of any rate swap transaction,
basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option,
bond option, interest rate option, foreign exchange transaction,
cap transaction, floor transaction, collar transaction, currency
swap transaction, cross-currency rate swap transaction, currency
option or any other similar transaction (including any option with
respect to any of the foregoing transactions) or any combination of
the foregoing transactions.
"
Determination Date " has the meaning set forth in Section
5.09.
"
Domestic Business Day " means any day except a Saturday,
Sunday or other day on which commercial banks in New York City are
authorized or required by law to close.
"
Domestic Lending Office " means, as to each Bank, its office
located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as
its Domestic Lending Office) or such other office as such Bank may
hereafter designate as its Domestic Lending Office by notice to the
Borrower and the Administrative Agent.
3
"
Effective Date " means the date this Agreement becomes
effective in accordance with Section 3.01.
"
Environmental Laws " means any and all federal, state, local
and foreign statutes, laws, judicial decisions, regulations,
ordinances, rules, judgments, orders, decrees, plans, injunctions,
permits, concessions, grants, franchises, licenses, agreements and
governmental restrictions relating to the environment, the effect
of the environment on human health or to emissions, discharges or
releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient
air, surface water, ground water, or land, or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants,
Hazardous Substances or wastes or the clean-up or other remediation
thereof.
"
ERISA " means the Employee Retirement Income Security Act of
1974, as amended, or any successor statute.
"
ERISA Group " means the Borrower, any Subsidiary and all
members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control
which, together with the Borrower or any Subsidiary, are treated as
a single employer under Section 414(b) or (c) of the Internal
Revenue Code or, for purposes of Section 412 of the Internal
Revenue Code, under Section 414(b), (c), (m) or (o) of the Internal
Revenue Code.
"
Euro-Dollar Business Day " means any Domestic Business Day
on which commercial banks are open for international business
(including dealings in dollar deposits) in London.
"
Euro-Dollar Lending Office " means, as to each Bank, its
office, branch or affiliate located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative
Questionnaire as its Euro-Dollar Lending Office) or such other
office, branch or affiliate of such Bank as it may hereafter
designate as its Euro-Dollar Lending Office by notice to the
Borrower and the Administrative Agent.
"
Euro-Dollar Loan " means a Committed Loan that bears
interest at a Euro-Dollar Rate pursuant to the applicable Notice of
Committed Borrowing or Notice of Interest Rate Election.
"
Euro-Dollar Margin " means a rate per annum determined in
accordance with the Pricing Schedule.
"
Euro-Dollar Rate " means, for any day, a rate per annum
determined in accordance with Section 2.07(b).
"
Euro-Dollar Reference Banks " means the principal London
offices of The Bank of Nova Scotia and JPMorgan Chase Bank,
N.A.
4
"
Euro-Dollar Reserve Percentage " has the meaning set forth
in Section 2.07(b).
"
Event of Default " has the meaning set forth in Section
6.01.
"
Facility Fee Rate " means a rate per annum determined in
accordance with the Pricing Schedule.
"
Federal Funds Rate " means, for any day, the rate per annum
(rounded upward, if necessary, 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 Domestic Business Day next
succeeding such day; provided that (i) if such day is not a
Domestic Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic
Business Day, and (ii) if no such rate is so published on such next
succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to JPMorgan Chase Bank, N.A.
on such day on such transactions as determined by the
Administrative Agent.
"
Fixed Rate Borrowing " means either a Euro-Dollar Borrowing
or a Money Market LIBOR Borrowing.
"
Fixed Rate Loans " means Euro-Dollar Loans or Money Market
Loans (excluding Money Market LIBOR Loans bearing interest at the
Base Rate pursuant to Section 8.01) or any combination of the
foregoing.
"
Foreclosed Asset " has the meaning set forth in Section
5.12.
"
Group of Loans " means, at any time, a group of Loans
consisting of (i) all Committed Loans which are Base Rate Loans at
such time or (ii) all Euro-Dollar Loans having the same Interest
Period at such time; provided that if a Committed Loan of
any particular Bank is converted to or made as a Base Rate Loan
pursuant to Article 8, such Loan shall be included in the same
Group or Groups of Loans from time to time as it would have been in
if it had not been so converted or made.
"
Guarantee " by any Person means any obligation, contingent
or otherwise, of such Person directly or indirectly guaranteeing
any Indebtedness or lease payments of any other Person or otherwise
in any manner assuring the holder of any Indebtedness of, or the
obligee under any lease of, any other Person through an agreement,
contingent or otherwise, to purchase Indebtedness or the property
subject to such lease, or to purchase goods, supplies or services
primarily for the purpose of enabling the debtor or obligor to make
payment of the Indebtedness or under such lease or of assuring such
Person against loss, or to supply funds to or in any other manner
invest in the debtor or obligor, or otherwise; provided that
the term " Guarantee " shall not include endorsements
for
5
collection or deposit in the ordinary course of business. The
term " Guarantee " when used as a verb has a correlative
meaning.
"
Guaranteed Portion " has the meaning set forth in the
definition of RUS Guaranteed Loan.
"
Hazardous Substances " means any toxic, radioactive, caustic
or otherwise hazardous substance, including petroleum, its
derivatives, by-products and other hydrocarbons, or any substance
having any constituent elements displaying any of the foregoing
characteristics.
"
Indebtedness " with respect to any Person means:
(1)
all indebtedness which would appear as indebtedness on a balance
sheet of such Person prepared in accordance with generally accepted
accounting principles (i) for money borrowed, (ii) which is
evidenced by securities sold for money or (iii) which constitutes
purchase money indebtedness;
(2)
all indebtedness of others Guaranteed by such Person;
(3)
all indebtedness secured by any Lien upon property owned by such
Person, even though such Person has not assumed or become liable
for the payment of such indebtedness; and
(4)
all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement (including any
lease in the nature of a title retention agreement) with respect to
property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event
of default are limited to repossession of such property), but only
if such property is included as an asset on the balance sheet of
such Person;
provided that, in computing the " Indebtedness " of such
Person, there shall be excluded any particular indebtedness if,
upon or prior to the maturity thereof, there shall have been
deposited with the proper depositary in trust money (or evidences
of such indebtedness) in the amount necessary to pay, redeem or
satisfy such indebtedness, and thereafter such money and evidences
of indebtedness so deposited shall not be included in any
computation of the assets of such Person; and provided
further that no provision of this definition shall be
construed to include as " Indebtedness " of the Borrower or
its Consolidated Subsidiaries any indebtedness by virtue of any
agreement by the Borrower or its Consolidated Subsidiaries to
advance or supply funds to Members or Consolidated Subsidiary
Members.
"
Indenture " means either the 1972 Indenture, the 1994
Indenture or any other Indenture that provides for borrowing on
terms not materially more disadvantageous to the Borrower's
unsecured creditors than the borrowings under the 1972 Indenture or
the 1994 Indenture, and " Indentures " means all such
Indentures.
6
"
Interest Expense " means, for any period, the line item
"interest expense" as it appears on the statement of operations of
the Borrower and its Consolidated Subsidiaries for such period
delivered to the Banks pursuant to Section 5.03(b), calculated in
accordance with generally accepted accounting principles as in
effect from time to time.
"
Interest Period " means: (1) with respect to each
Euro-Dollar Borrowing, the period commencing on the date of such
Borrowing and ending one, two, three or six months thereafter, as
the Borrower may elect in the applicable Notice of Borrowing;
provided that:
(a)
any Interest Period which would otherwise end on a day which is not
a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls
in another calendar month, in which case such Interest Period shall
end on the next preceding Euro-Dollar Business Day;
(b)
any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of
such Interest Period) shall, subject to clause (c) below, end on
the last Euro-Dollar Business Day of a calendar month; and
(c)
any Interest Period of any Euro-Dollar Loan included in such
Borrowing which would otherwise end after the Maturity Date shall,
with respect to such Euro-Dollar Loan, end on such Maturity
Date;
(2)
with respect to each Base Rate Borrowing, the period commencing on
the date of such Borrowing and ending 30 days thereafter;
provided that:
(a)
any Interest Period which would otherwise end on a day which is not
a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b)
any Interest Period of any Base Rate Loan included in such
Borrowing which would otherwise end after the Maturity Date shall,
with respect to such Base Rate Loan, end on such Maturity Date;
(3)
with respect to each Money Market LIBOR Borrowing, the period
commencing on the date of such Borrowing and ending any whole
number of months thereafter (but not less than one month) as the
Borrower may elect in the applicable Notice of Borrowing;
provided that:
(a)
any Interest Period which would otherwise end on a day which is not
a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls
in another calendar month, in which case such Interest Period shall
end on the next preceding Euro-Dollar Business Day;
7
(b)
any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of
such Interest Period) shall, subject to clause (c) below, end on
the last Euro-Dollar Business Day of a calendar month; and
(c)
any Interest Period which would otherwise end after the Commitment
Termination Date shall end on the Commitment Termination Date;
and
(4)
with respect to each Money Market Absolute Rate Borrowing, the
period commencing on the date of such Borrowing and ending such
number of days thereafter (but not less than 30 days) as the
Borrower may elect in the applicable Notice of Borrowing;
provided that:
(a)
any Interest Period which would otherwise end on a day which is not
a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b)
any Interest Period which would otherwise end after the Commitment
Termination Date shall end on the Commitment Termination Date.
"
Internal Revenue Code " means the Internal Revenue Code of
1986, as amended, or any successor statute.
"
Investments " has the meaning set forth in Section 5.12.
"
Joint Venture " means any corporation, partnership,
association, joint venture or other entity in which the Borrower,
directly or indirectly through Subsidiaries or Joint Ventures, has
an equity interest at the time of 10% or more but which is not a
Subsidiary; provided that no Person whose only assets are
RUS Guaranteed Loans and investments incidental thereto shall be
deemed a Joint Venture.
"
LIBOR Auction " means a solicitation of Money Market Quotes
setting forth Money Market Margins based on the London Interbank
Offered Rate pursuant to Section 2.03.
"
Lien " means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in
respect of such asset. For the purposes of this Agreement, the
Borrower or any Subsidiary shall be deemed to own subject to a Lien
any asset which it has acquired or holds subject to the interest of
a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such
asset.
"
Loan " means a Base Rate Loan or a Euro-Dollar Loan or a
Money Market Loan and " Loans " means Base Rate Loans or
Euro-Dollar Loans or Money Market Loans or any combination of the
foregoing.
8
"
London Interbank Offered Rate " has the meaning set forth in
Section 2.07(b).
"
Maturity Date " means (i) with respect to any Revolving
Loan, the Commitment Termination Date, (ii) with respect to any
Term Loan, the first anniversary of the Commitment Termination
Date, and (iii) with respect to any Money Market Loan, the last day
of the Interest Period applicable thereto.
"
Member " means any Person which is a member or a patron of
the Borrower.
"
Members' Subordinated Certificate " means a note of the
Borrower or its Consolidated Subsidiaries substantially in the form
of the membership subordinated subscription certificates and the
loan and guarantee subordinated certificates outstanding on the
date of the execution and delivery of this Agreement and any other
Indebtedness of the Borrower or its Consolidated Subsidiaries
having substantially similar provisions as to subordination as
those contained in said outstanding membership subordinated
subscription certificates and loan and guarantee subordinated
certificates.
"
Money Market Absolute Rate " has the meaning set forth in
Section 2.03(d).
"
Money Market Absolute Rate Loan " means a loan to be made by
a Bank pursuant to an Absolute Rate Auction.
"
Money Market Lending Office " means, as to each Bank, its
Domestic Lending Office or such other office, branch or affiliate
of such Bank as it may hereafter designate as its Money Market
Lending Office by notice to the Borrower and the Administrative
Agent; provided that any Bank may from time to time by
notice to the Borrower and the Administrative Agent designate
separate Money Market Lending Offices for its Money Market LIBOR
Loans, on the one hand, and its Money Market Absolute Rate Loans,
on the other hand, in which case all references herein to the Money
Market Lending Office of such Bank shall be deemed to refer to
either or both of such offices, as the context may require.
"
Money Market LIBOR Loan " means a loan to be made by a Bank
pursuant to a LIBOR Auction (including such a loan bearing interest
at the Prime Rate pursuant to Section 8.01(a)).
"
Money Market Loan " means a Money Market LIBOR Loan or a
Money Market Absolute Rate Loan.
"
Money Market Margin " has the meaning set forth in Section
2.03(d).
"
Money Market Quote " means an offer by a Bank to make a
Money Market Loan in accordance with Section 2.03.
"
Moody's " means Moody's Investors Service, Inc., and its
successors.
9
"
Multiple Employer Plan " means a single employer plan, as
defined in Section 4001 of ERISA and subject to Title IV of ERISA,
which has two or more contributing sponsors, one of whom is the
Borrower or a Subsidiary of the Borrower or any member of the ERISA
Group, at least two of whom are not under common control, within
the meaning of Section 4063 of ERISA.
"
Net Income " means, for any period, the sum of (i) the line
item "net income" on the statement of operations of the Borrower
and its Consolidated Subsidiaries plus (ii) the line item
"minority interest" on the consolidated statement of operations of
the Borrower and its Consolidated Subsidiaries at the last day of
such period, each as it appears in the financial statements for
such period delivered to the Banks pursuant to Section 5.03(b), and
each calculated in accordance with generally accepted accounting
principles as in effect from time to time; provided that
non-cash adjustments (whether positive or negative) required to be
made pursuant to SFAS 133 and SFAS 52 on each such line item shall
be excluded from the calculation thereof to the extent otherwise
included therein.
"
Notes " means promissory notes of the Borrower,
substantially in the form of Exhibit A hereto, evidencing the
obligation of the Borrower to repay the Loans, and " Note "
means any one of such promissory notes issued hereunder.
"
Notice of Borrowing " means a Notice of Committed Borrowing
or a Notice of Money Market Borrowing.
"
Notice of Committed Borrowing " has the meaning set forth in
Section 2.02.
"
Notice of Interest Rate Election " has the meaning set forth
in Section 2.08.
"
Notice of Money Market Borrowing " has the meaning set forth
in Section 2.03(f).
"
Participant " has the meaning set forth in Section
9.06(b).
"
Patronage Capital Certificates " means those certificates
that evidence the portion of Net Income allocated by the Borrower
among its Members in accordance with applicable cooperative
principles.
"
PBGC " means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"
Person " means an individual, a corporation, a partnership,
an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
"
Plan " means any multiemployer plan or single employer plan
(including any Multiple Employer Plan), as defined in Section 4001
and subject to Title IV of ERISA, which is maintained or
contributed to by, or at any time during the five
10
calendar years preceding the date of this Agreement was
maintained or contributed to by, the Borrower or a Subsidiary of
the Borrower or any member of the ERISA Group.
"
Pricing Schedule " means the Pricing Schedule attached
hereto.
"
Prime Rate " means the rate of interest publicly announced
by JPMorgan Chase Bank, N.A. in New York City from time to time as
its Prime Rate.
"
Prior Credit Agreements " means (i) the Revolving Five Year
Credit Agreement, dated as of March 23, 2005, among the Borrower,
the banks named therein, The Bank of Nova Scotia, The Bank of
Tokyo-Mitsubishi UFJ, Ltd., New York Branch, and ABN Amro Bank,
N.V., as Co-Documentation Agents, Bank of America, N.A., as
Syndication Agent, and JPMorgan Chase Bank, N.A., as Administrative
Agent and (ii) the 364-Day Revolving Credit Agreement dated as of
March 22, 2006, among the Borrower, the banks named therein, ABN
Amro Bank, N.V., The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York
Branch, and The Royal Bank of Scotland plc, as Co-Documentation
Agents, The Bank of Nova Scotia, as Syndication Agent, and JP
Morgan Chase Bank, N.A., as Administrative Agent, and " Prior
Credit Agreement " means any of the foregoing agreements.
"
Qualified Subordinated Indebtedness " means the Borrower's
(i) 6.75% Subordinated Deferrable Interest Notes Due 2043, (ii)
7.40% Quarterly Income Capital Securities (Subordinated Deferrable
Interest Debentures Due 2050), (iii) 6.10% Subordinated Deferrable
Interest Notes Due 2044, (iv) 5.95% Subordinated Deferrable
Interest Notes Due 2045, and (v) any other Indebtedness of the
Borrower having substantially similar terms as to subordination as
those contained in the instruments and documents relating to the
foregoing Indebtedness or that would be junior to any of the
foregoing; provided that such Indebtedness (a) will not
mature prior to the Maturity Date and (b) does not require payments
of principal prior to the Maturity Date, except pursuant to
acceleration or at the option of the Borrower.
"
REDLG Program Liens " means Liens on any asset of the
Borrower required to be pledged as collateral to support
obligations of the Borrower with respect to any government
Guarantee provided pursuant to regulations issued under the Rural
Electrification Act of 1936, 7 U.S.C. 901 et. seq., and the Farm
Security and Rural Investment Act of 2002, Pub. L. 107-171, 116
Stat. 413 (" REDLG Obligations ") so long as such Guarantee
supports long-term Indebtedness issued by the Borrower and
permitted by Section 5.09.
"
REDLG Obligations " has the meaning set forth in the
definition of REDLG Program Liens.
"
Regulation U " means Regulation U of the Board of Governors
of the Federal Reserve System, as in effect from time to time.
11
"
Regulation X " means Regulation X of the Board of Governors
of the Federal Reserve System, as in effect from time to time.
"
Reportable Event " means an event described in Section
4043(c) of ERISA or regulations promulgated by the Department of
Labor thereunder (with respect to which the 30 day notice
requirement has not been waived by the PBGC).
"
Required Banks " means at any time Banks having at least 51%
of the sum of the aggregate amount of the unused Commitments and
the aggregate principal outstanding amount of the Loans.
"
Revolving Credit Period " means the period from and
including the Effective Date to but excluding the Commitment
Termination Date.
"
Revolving Loan " means a loan made by a Bank pursuant to
Section 2.01(a).
"
RUS " means the Rural Utilities Service of the Department of
Agriculture of the United States of America (as successor to the
Rural Electrification Administration of the Department of
Agriculture of the United States of America) or any other
regulatory body which succeeds to its functions.
"
RUS Guaranteed Loan " means any loan made by any Person,
which loan (x) bears interest at least equal to such Person's cost
of funds and (y) is guaranteed, in whole or in part, as to
principal and interest by the United States of America through the
RUS pursuant to a guarantee, which guarantee contains provisions no
less favorable to the holder thereof than the provisions set forth
in the form of Exhibit B-1 or Exhibit B-2 hereto; and "
Guaranteed Portion " of any RUS Guaranteed Loan means that
portion of principal of, and interest on, such RUS Guaranteed Loan
which is guaranteed by the United States of America through the RUS
as provided in clause (y).
"
S&P " means Standard and Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc., and its
successors.
"
Securities and Exchange Commission " means the Securities
and Exchange Commission or any other governmental authority
succeeding to any or all of the functions of the Securities and
Exchange Commission.
"
SFAS 52 " means Statement of Financial Accounting Standards
No. 52 entitled "Foreign Currency Translations", issued December,
1981 by the Financial Accounting Standards Board, as amended from
time to time.
"
SFAS 133 " means Statement of Financial Accounting Standards
No. 133 entitled "Accounting for Derivative Instruments and Hedging
Activities", issued June, 1998 by the Financial Accounting
Standards Board as amended from time to time.
12
"
Special Purpose Subsidiary " has the meaning set forth in
Section 5.12.
"
Start-up Investments " has the meaning set forth in Section
5.12.
"
Subsidiary " of any Person means (i) 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
stock of 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 its Subsidiaries, and (ii) any other Person in
which such Person directly or indirectly through Subsidiaries has
more than a 50% voting and equity interest; provided that no
Person whose only assets are RUS Guaranteed Loans and investments
incidental thereto shall be deemed a Subsidiary.
"
Superior Indebtedness " means all Indebtedness of the
Borrower and its Consolidated Subsidiaries (other than Members'
Subordinated Certificates and Qualified Subordinated Indebtedness),
but excluding (i) Indebtedness of the Borrower or any of its
Consolidated Subsidiaries to the extent that the proceeds of such
Indebtedness are used to fund Guaranteed Portions of RUS Guaranteed
Loans and (ii) any indebtedness of any Member Guaranteed by the
Borrower or any of its Consolidated Subsidiaries (" Guaranteed
Indebtedness "), to the extent that either (x) the long-term
unsecured debt of such Member is rated at least BBB+ by S&P or
Baa1 by Moody's or (y) the payment of principal and interest by the
Borrower or any of its Consolidated Subsidiaries in respect of such
Guaranteed Indebtedness is covered by insurance or reinsurance
provided by an insurer having an insurance financial strength
rating of AAA by S&P or a financial strength rating of Aaa by
Moody's.
"
Syndication Agent " means The Bank of Nova Scotia, in its
capacity as Syndication Agent hereunder, and its successors in such
capacity.
"
Term Loan " means a loan made pursuant to Section
2.01(b).
"
TIER " means, for any period, the ratio of (x) Net
Income plus Interest Expense plus Derivative Cash
Settlements to (y) Interest Expense plus Derivative Cash
Settlements, in each case for such period.
"
Type " refers to whether a Loan is a Base Rate Loan, a
Euro-Dollar Loan, a Money Market Absolute Rate Loan or a Money
Market LIBOR Loan.
"
Utilization " means, at any date, the percentage equivalent
of a fraction (i) the numerator of which is the aggregate
outstanding principal amount of Loans at such date and (ii) the
denominator of which is the aggregate amount of the Commitments at
such date; provided that if any Loans remain outstanding
following the termination of the Commitments, Utilization will be
deemed to be 100% of the principal amount then outstanding.
13
Section
1.02 . Accounting Terms and Determinations . Unless
otherwise specified herein, all accounting terms used herein shall
be interpreted, all accounting determinations hereunder shall be
made and all financial statements required to be delivered
hereunder shall be prepared in accordance with generally accepted
accounting principles as in effect from time to time, applied on a
basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited
financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Banks.
Section 1.03 . Types of Borrowings. The term "
Borrowing " denotes the aggregation of Loans of one or more
Banks to be made to the Borrower pursuant to Article 2 on a single
date and for a single Interest Period. Borrowings are classified
for purposes of this Agreement either by reference to the pricing
of Loans comprising such Borrowing ( e.g. , a "
Euro-Dollar Borrowing " is a Borrowing comprised of
Euro-Dollar Loans) or by reference to the provisions of Article 2
under which participation therein is determined ( i.e. , a "
Revolving Borrowing " is a Borrowing under Section 2.01(a)
in which all Banks participate in proportion to their Commitments,
while a " Money Market Borrowing " is a Borrowing under
Section 2.03 in which the Bank participants are determined on the
basis of their bids in accordance therewith).
ARTICLE 2
THE
CREDITS
Section 2.01. Commitments to Lend . (a) Revolving
Loans . During the Revolving Credit Period each Bank severally
agrees, on the terms and conditions set forth in this Agreement, to
make loans to the Borrower pursuant to this Section from time to
time in amounts such that the aggregate principal amount of
Revolving Loans by such Bank at any one time outstanding shall not
exceed the amount of its Commitment. Each Borrowing shall be in an
aggregate principal amount of $10,000,000 or any larger multiple of
$1,000,000 (except that any such Borrowing may be in the maximum
aggregate amount available in accordance with Section 3.03(d)) and
shall be made from the several Banks ratably in proportion to their
respective Commitments. Within the foregoing limits, the Borrower
may borrow under this Section, repay or, to the extent permitted by
Section 2.12, prepay Loans and reborrow at any time during the
Revolving Credit Period under this Section.
(b) Term Loans . Each Bank severally agrees, on the terms
and conditions set forth in this Agreement, to make a Term Loan to
the Borrower on the Commitment Termination Date in an amount up to
but not exceeding the amount of its Commitment.
Section 2.02. Notice of Committed Borrowings . The
Borrower shall give the Administrative Agent notice (a " Notice
of Committed Borrowing ") not later than 11:00 A.M. (New York
City time) on (x) the date of such Borrowing, in the
14
case of each Base Rate Borrowing, and (y) the third Euro-Dollar
Business Day before such Borrowing, in the case of each Euro-Dollar
Borrowing, specifying:
(a) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Euro-Dollar
Business Day in the case of a Euro-Dollar Borrowing,
(b)
the aggregate amount of such Borrowing,
(c)
whether the Loans comprising such Borrowing are to bear interest
initially at the Base Rate or a Euro-Dollar Rate, and
(d)
in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
Notwithstanding the foregoing, no more than 15 Fixed Rate
Borrowings shall be outstanding at any one time, and any Borrowing
which would exceed such limitation shall be made as a Base Rate
Borrowing.
Section 2.03. Money Market Borrowings . (a) In addition
to Committed Borrowings pursuant to Section 2.01, the Borrower may,
as set forth in this Section, request the Banks during the
Revolving Credit Period to make offers to make Money Market Loans
to the Borrower. The Banks may, but shall have no obligation to,
make such offers and the Borrower may, but shall have no obligation
to, accept any such offers in the manner set forth in this
Section.
(b)
Money Market Quote Request . When the Borrower wishes to
request offers to make Money Market Loans under this Section, it
shall transmit to the Administrative Agent by telex or facsimile
transmission a Money Market Quote Request substantially in the form
of Exhibit C hereto so as to be received no later than 10:00 A.M.
(New York City time) on (x) the fourth Euro-Dollar Business Day
prior to the date of Borrowing proposed therein, in the case of a
LIBOR Auction or (y) the Domestic Business Day next preceding
the date of Borrowing proposed therein, in the case of an Absolute
Rate Auction (or, in either case, such other time or date as the
Borrower and the Administrative Agent shall have mutually agreed
and shall have notified to the Banks not later than the date of the
Money Market Quote Request for the first LIBOR Auction or Absolute
Rate Auction for which such change is to be effective)
specifying:
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(i) the proposed date of Borrowing, which shall be a
Euro-Dollar Business Day in the case of a LIBOR Auction or a
Domestic Business Day in the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall
be $10,000,000 or any larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of Interest
Period, and
15
The
Borrower may request offers to make Money Market Loans for more
than one Interest Period in a single Money Market Quote Request. No
Money Market Quote Request shall be given within four Euro-Dollar
Business Days (or such other number of days as the Borrower and the
Administrative Agent may agree) of any other Money Market Quote
Request.
(c)
Invitation for Money Market Quotes . Promptly upon receipt
of a Money Market Quote Request, the Administrative Agent shall
send to the Banks by telex or facsimile transmission an Invitation
for Money Market Quotes substantially in the form of Exhibit D
hereto, which shall constitute an invitation by the Borrower to
each Bank to submit Money Market Quotes offering to make the Money
Market Loans to which such Money Market Quote Request relates in
accordance with this Section.
(d) Submission and Contents of Money Market Quotes . (i)
Each Bank may submit a Money Market Quote containing an offer or
offers to make Money Market Loans in response to any Invitation for
Money Market Quotes. Each Money Market Quote must comply with the
requirements of this subsection (d) and must be submitted to the
Administrative Agent by telex or facsimile transmission at its
offices specified in or pursuant to Section 9.01 not later than (x)
9:30 A.M. (New York City time) on the third Euro-Dollar Business
Day prior to the proposed date of Borrowing, in the case of a LIBOR
Auction or (y) 9:30 A.M. (New York City time) on the proposed date
of Borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the
Administrative Agent shall have mutually agreed and shall have
notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction
for which such change is to be effective); provided that
Money Market Quotes submitted by the Administrative Agent (or any
affiliate of the Administrative Agent) in the capacity of a Bank
may be submitted, and may only be submitted, if the Administrative
Agent or such affiliate notifies the Borrower of the terms of the
offer or offers contained therein not later than (x) 8:30 A.M. (New
York City time) on the third Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y)
9:15 A.M. (New York City time) on the proposed date of Borrowing,
in the case of an Absolute Rate Auction. Subject to Articles 3 and
6, any Money Market Quote so made shall be irrevocable except with
the written consent of the Administrative Agent given on the
instructions of the Borrower.
16
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(w) may be greater than or less than the Commitment of the
quoting Bank, (x) must be $1,000,000 or any larger multiple
thereof, (y) may not exceed the principal amount of Money Market
Loans for which offers were requested and (z) may be subject to an
aggregate limitation as to principal amount of Money Market Loans
for which offers being made by such quoting Bank may be
accepted,
(C) in the case of a LIBOR Auction, the margin above or below
the applicable London Interbank Offered Rate (the " Money Market
Margin ") offered for each such Money Market Loan, expressed as
a percentage (rounded to the nearest 1/10,000th of 1%) to be added
to or subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of
interest per annum (rounded to the nearest 1/10,000 th
of 1%) (the " Money Market Absolute Rate ") offered for each
such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by
the quoting Bank with respect to each Interest Period specified in
the related Invitation for Money Market Quotes.
(e)
Notice to Borrower . The Administrative Agent shall promptly
notify the Borrower of the terms (x) of any Money Market Quote
submitted by a Bank that is in accordance with subsection (d) and
(y) of any Money Market Quote that amends, modifies or is otherwise
inconsistent with a previous Money Market Quote submitted by such
Bank with respect to the same Money Market Quote Request. Any such
subsequent Money Market Quote shall be disregarded by the
Administrative Agent unless such subsequent Money Market Quote is
submitted solely to correct a manifest error in such former Money
Market Quote. The Administrative Agent's notice to the Borrower
shall specify (A) the
17
aggregate principal amount of Money Market Loans for which
offers have been received for each Interest Period specified in the
related Money Market Quote Request, (B) the respective principal
amounts and Money Market Margins or Money Market Absolute Rates, as
the case may be, so offered and (C) if applicable, limitations on
the aggregate principal amount of Money Market Loans for which
offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower . Not later than 10:30
A.M. (New York City time) on (x) the third Euro-Dollar Business Day
prior to the proposed date of Borrowing, in the case of a LIBOR
Auction or (y) the proposed date of Borrowing, in the case of an
Absolute Rate Auction (or, in either case, such other time or date
as the Borrower and the Administrative Agent shall have mutually
agreed and shall have notified to the Banks not later than the date
of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective),
the Borrower shall notify the Administrative Agent of its
acceptance or non-acceptance of the offers so notified to it
pursuant to subsection (e). In the case of acceptance, such
notice (a " Notice of Money Market Borrowing ") shall
specify the aggregate principal amount of offers for each Interest
Period that are accepted. The Borrower may accept any Money Market
Quote in whole or in part; provided that:
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-
-
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the
related Money Market Quote Request,
(ii) the aggregate principal amount of each Money Market
Borrowing must be $10,000,000 or any larger multiple of
$1,000,000,
(iii) acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as
the case may be, and
(iv) the Borrower may not accept any offer that is described
in subsection (d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g)
Allocation by Agent . If offers are made by two or more
Banks with the same Money Market Margins or Money Market Absolute
Rates, as the case may be, for a greater aggregate principal amount
than the amount in respect of which such offers are accepted for
the related Interest Period, the principal amount of Money Market
Loans in respect of which such offers are accepted shall be
allocated by the Administrative Agent among such Banks as nearly as
possible (in such multiples, not greater than $100,000, as the
Administrative Agent may deem appropriate) in proportion to the
aggregate principal amounts of such offers. Determinations by the
Administrative Agent of the amounts of Money Market Loans shall be
conclusive in the absence of manifest error.
18
Section 2.04. Notice to Banks; Funding of Loans . (a)
Upon receipt of a Notice of Borrowing, the Administrative Agent
shall promptly notify each Bank of the contents thereof and of such
Bank's share (if any) of such Borrowing and such Notice of
Borrowing shall not thereafter be revocable by the Borrower.
(b) Not later than 1:00 P.M. (New York City time) on the date
of each Borrowing, each Bank participating therein shall (except as
provided in subsection (c) of this Section) make available its
share of such Borrowing, in Federal or other funds immediately
available in New York City, to the Administrative Agent at its
address specified in or pursuant to Section 9.01. Unless the
Administrative Agent determines that any applicable condition
specified in Article 3 has not been satisfied, the Administrative
Agent will make the funds so received from the Banks available to
the Borrower at the Administrative Agent's aforesaid address.
(c) If any Bank makes a new Loan hereunder on a day on which
the Borrower is to repay all or any part of an outstanding Loan
from such Bank, such Bank shall apply the proceeds of its new Loan
to make such repayment and only an amount equal to the difference
(if any) between the amount being borrowed and the amount being
repaid shall be made available by such Bank to the Administrative
Agent as provided in subsection (b), or remitted by the Borrower to
the Administrative Agent as provided in Section 2.13, as the case
may be.
(d) Unless the Administrative Agent shall have been notified
by any Bank prior to the date of Borrowing (or prior to
1:00 P.M. (New York City time) on the date of Borrowing in the
case of a Base Rate Borrowing) that such Bank does not intend to
make available to the Administrative Agent such Bank's portion of
the Borrowing to be made on such date, the Administrative Agent may
assume that such Bank has made such amount available to the
Administrative Agent on such date and the Administrative Agent may,
in reliance upon such assumption, make available to the Borrower a
corresponding amount, subject to the provisions of subsection (c).
If such corresponding amount is not in fact made available to the
Administrative Agent by such Bank, the Administrative Agent shall
be entitled to recover such corresponding amount on demand from
such Bank. If such Bank does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent shall promptly notify the Borrower and the
Borrower shall promptly pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be
entitled to recover from such Bank or the Borrower 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 rate per annum equal to (x) in
the case of a Bank, the Federal Funds Rate for each such day and
(y) in the case of the Borrower, the then applicable rate for Base
Rate Loans, Euro-Dollar Loans or Money Market Loans, as
appropriate. Nothing herein shall be deemed to relieve any Bank
from its obligation to fulfill its Commitment hereunder or to
prejudice any rights which the Borrower may have against any Bank
as a result of any default by such Bank hereunder. For purposes
19
of this subsection (d), no amount paid to the Administrative
Agent hereunder shall be considered to have been recovered by the
Administrative Agent on the date of payment unless such amount
shall have been received by the Administrative Agent by 2:30 P.M.
(New York City time) on such date.
Section 2.05. Notes . (a) Any Bank may request that the
Loans of such Bank be evidenced by a single Note payable to the
order of such Bank for the account of its Applicable Lending Office
in an amount equal to the aggregate unpaid principal amount of such
Bank's Loans.
(b)
Each Bank that has requested that its Loans be evidenced by a Note
may, by notice to the Borrower and the Administrative Agent,
request that its Loans of a particular Type be evidenced by a
separate Note in an amount equal to the aggregate unpaid principal
amount of such Loans. Each such Note shall be in substantially the
form of Exhibit A hereto with appropriate modifications to reflect
the fact that it evidences solely Loans of the relevant Type. Each
reference in this Agreement to the " Note " of such Bank
shall be deemed to refer to and include any or all of such Notes,
as the context may require.
(c)
Upon receipt of each Bank's Note pursuant to Section 3.01(b), the
Administrative Agent shall forward such Note to such Bank. Each
Bank shall record the date, amount, type and maturity of each Loan
made by it and the date and amount of each payment of principal
made by the Borrower with respect thereto, and may, if such Bank so
elects in connection with any transfer or enforcement of its Note,
endorse on the schedule forming a part thereof appropriate
notations to evidence the foregoing information with respect to
each such Loan then outstanding; provided that the failure
of any Bank to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under the
Notes. Each Bank is hereby irrevocably authorized by the Borrower
so to endorse its Note and to attach to and make a part of its Note
a continuation of any such schedule as and when required.
Section 2.06. Maturity of Loans . Each Loan hereunder
shall mature, and the principal amount thereof shall be due and
payable on the Maturity Date with respect to such Loan.
Section 2.07. Interest Rates . (a) Each Base Rate Loan
shall bear interest on the outstanding principal amount thereof,
for each day from the date such Loan is made until it becomes due,
at a rate per annum equal to the Base Rate for such day. Such
interest shall be payable for each Interest Period on the last day
thereof and, with respect to the principal amount of any Base Rate
Loan that is prepaid or converted to a Euro-Dollar Loan, on the
date of such prepayment or conversion. Any overdue principal of or
interest on any Base Rate Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the
sum of 2% plus the rate otherwise applicable to Base Rate Loans for
such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable
thereto, at a rate per
20
annum equal to the sum of the Euro-Dollar
Margin plus the applicable Adjusted London Interbank Offered Rate.
Such interest shall be payable for each Interest Period on the last
day thereof and, if such Interest Period is longer than three
months, three months after the first day thereof and, with respect
to the principal amount of any Euro-Dollar Loan that is prepaid or
converted to a Base Rate Loan, on the date of such prepayment or
conversion.
The
" Adjusted London Interbank Offered Rate " applicable to any
Interest Period means a rate per annum equal to the quotient
obtained (rounded upward, if necessary, to the next higher 1/100 of
1%) by dividing (i) the applicable London Interbank Offered Rate by
(ii) 1.00 minus the Euro-Dollar Reserve Percentage.
The
" London Interbank Offered Rate " applicable to any Interest
Period means the average (rounded upward, if necessary, to the next
higher 1/16 of 1%) of the respective rates per annum at which
deposits in dollars are offered to each of the Euro-Dollar
Reference Banks in the London interbank market at approximately
11:00 A.M. (London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount approximately equal
to the principal amount of the Euro-Dollar Loan of such Euro-Dollar
Reference Bank to which such Interest Period is to apply and for a
period of time comparable to such Interest Period.
"
Euro-Dollar Reserve Percentage " means for any day that
percentage (expressed as a decimal) which is in effect on such day,
as prescribed by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement for a member bank of the Federal Reserve System in New
York City with deposits exceeding five billion dollars in respect
of "Eurocurrency liabilities" (or in respect of any other category
of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of
extensions of credit or other assets which includes loans by a
non-United States office of any Bank to United States residents).
The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the
Euro-Dollar Reserve Percentage.
(c)
Any overdue principal of or interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day from and including
the date payment thereof was due to but excluding the date of
actual payment, at a rate per annum equal to the sum of 2% plus the
higher of (i) the sum of the Euro-Dollar Margin plus the Adjusted
London Interbank Offered Rate applicable to such Loan and (ii) the
Euro-Dollar Margin plus the quotient obtained (rounded upwards, if
necessary, to the next higher 1/100 of 1%) by dividing (x) the
average (rounded upward, if necessary, to the next higher 1/16 of
1%) of the respective rates per annum at which one day (or, if such
amount due remains unpaid more than three Euro-Dollar Business
Days, then for such other period of time not longer than six months
as the Administrative Agent may select) deposits in dollars in an
amount approximately equal to such overdue payment due to each of
the Euro-Dollar
21
Reference Banks are offered to such Euro-Dollar Reference Bank
in the London interbank market for the applicable period determined
as provided above by (y) 1.00 minus the Euro-Dollar Reserve
Percentage (or, if the circumstances described in clause (a) or (b)
of Section 8.01 shall exist, at a rate per annum equal to the sum
of 2% plus the rate applicable to Base Rate Loans for such
day).
(d)
Subject to Section 8.01(a), each Money Market LIBOR Loan shall bear
interest on the outstanding principal amount thereof, for the
Interest Period applicable thereto, at a rate per annum equal to
the sum of the London Interbank Offered Rate for such Interest
Period (determined in accordance with Section 2.07(b) as if each
Euro-Dollar Reference Bank were to participate in the related Money
Market LIBOR Borrowing ratably in proportion to its Commitment)
plus (or minus) the Money Market Margin quoted by the Bank making
such Loan in accordance with Section 2.03. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at a
rate per annum equal to the Money Market Absolute Rate quoted by
the Bank making such Loan in accordance with Section 2.03. Such
interest shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than three months,
at intervals of three months after the first day thereof. Any
overdue principal of or interest on any Money Market Loan shall
bear interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 2% plus the Prime Rate for such
day.
(e)
The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall
give prompt notice to the Borrower and the participating Banks of
each rate of interest so determined, and its determination thereof
shall be conclusive in the absence of manifest error.
(f)
Each Euro-Dollar Reference Bank agrees to use its best efforts to
furnish quotations to the Administrative Agent as contemplated by
this Section. If either Euro-Dollar Reference Bank does not furnish
a timely quotation, the Administrative Agent shall determine the
relevant interest rate on the basis of the quotation or quotations
furnished by the remaining Euro-Dollar Reference Bank or, if none
of such quotations is available on a timely basis, the provisions
of Section 8.01 shall apply.
Section 2.08. Method of Electing Interest Rates . (a)
The Loans included in each Committed Borrowing shall bear interest
initially at the type of rate specified by the Borrower in the
applicable Notice of Committed Borrowing. Thereafter, the Borrower
may from time to time elect to change or continue the type of
interest rate borne by each Group of Loans (subject to Section
2.08(d) and the provisions of Article 8), as follows:
22
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(ii) if such Loans are Euro-Dollar Loans, the Borrower may
elect to convert such Loans to Base Rate Loans as of any Domestic
Business Day, subject to Section 2.14 if any such conversion is
effective on any day other than the last day of an Interest Period
applicable to such Loans, or may elect to continue such Loans as
Euro-Dollar Loans, as of the end of any Interest Period applicable
thereto, for an additional Interest Period.
Each such election shall be made by delivering a notice (a "
Notice of Interest Rate Election ") to the Administrative
Agent not later than 10:30 A.M. (New York City time) on the third
Euro-Dollar Business Day before the conversion or continuation
selected in such notice is to be effective. A Notice of Interest
Rate Election may, if it so specifies, apply to only a portion of
the aggregate principal amount of the relevant Group of Loans;
provided that (i) such portion is allocated ratably among
the Loans comprising such Group and (ii) such portion, and the
remaining portion to which such Notice does not apply, are each at
least $10,000,000 (unless such portion is comprised of Base Rate
Loans). If no such notice is timely received before the end of an
Interest Period for any Group of Euro-Dollar Loans, the Borrower
shall be deemed to have elected that such Group of Loans be
converted to Base Rate Loans at the end of such Interest
Period.
(b)
Each Notice of Interest Rate Election shall specify:
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(i) the Group of Loans (or portion thereof) to which such
notice applies;
(ii) the date on which the conversion or continuation
selected in such notice is to be effective, which shall comply with
the applicable clause of Section 2.08(a);
(iii) if the Loans comprising such Group are to be converted
to Euro-Dollar Loans, the duration of the next succeeding Interest
Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans
for an additional Interest Period, the duration of such additional
Interest Period.
Each Interest Period specified in a Notice of Interest Rate
Election shall comply with the provisions of the definition of
Interest Period.
(c) Promptly after receiving a Notice of Interest Rate Election
from the Borrower pursuant to Section 2.08(a), the Administrative
Agent shall notify each Bank of the contents thereof and such
notice shall not thereafter be revocable by the Borrower.
(d) The Borrower shall not be entitled to elect to convert any
Committed Loans to, or continue any Committed Loans for an
additional Interest
23
Period as, Euro-Dollar Loans if (i) the
aggregate principal amount of any Group of Euro-Dollar Loans
created or continued as a result of such election would be less
than $10,000,000 or (ii) a Default shall have occurred and be
continuing when the Borrower delivers notice of such election to
the Administrative Agent.
(e)
If any Committed Loan is converted to a different Type of Loan, the
Borrower shall pay, on the date of such conversion, the interest
accrued to such date on the principal amount being converted.
Section 2.09. Fees . (a) Facility Fee . The
Borrower shall pay to the Administrative Agent for the account of
each Bank facility fees accruing at the Facility Fee Rate on the
daily average amount of such Bank's Commitment (whether used or
unused), for the period from and including the Effective Date to
but excluding the date such Bank's Commitment is terminated;
provided that, if such Bank continues to have any Committed
Loans outstanding after its Commitment terminates, then such
facility fee shall continue to accrue on the daily outstanding
principal amount of such Bank's Committed Loans from and including
the date on which its Commitment terminates to but excluding the
date on which such Bank ceases to have any Committed Loans
outstanding. Accrued facility fees shall be payable on each January
1, April 1, July 1, and October 1 and on the date the Commitment of
such Bank is terminated (and, if later, on the date the Loans of
such Bank shall be repaid in their entirety); provided that
any facility fees accruing after the first anniversary of the
Commitment Termination Date shall be payable on demand.
(b)
Utilization Fee. During any period when Utilization exceeds
50%, the Borrower shall pay to the Administrative Agent for the
account of each Bank utilization fees at a rate of 0.050% per annum
accruing on the average daily aggregate outstanding principal
amount of the Loans of such Bank. Such utilization fees for each
Loan shall be payable on each date on which interest is payable
with respect to such Loan pursuant to Section 2.07, and on the date
the Commitment of such Bank is terminated (and, if later, on the
date the Loans of such Bank shall be repaid in their entirety);
provided that any utilization fees accruing after the first
anniversary of the Commitment Termination Date shall be payable on
demand.
(c)
Term-Out Fee. The Borrower shall pay to the Administrative
Agent for the account of each Bank ratably term-out fees at a rate
of 0.100% per annum accruing on the daily aggregate outstanding
principal amount of the Term Loan of such Bank, for the period from
and including the Commitment Termination Date to but excluding the
date the Term Loan of such Bank is repaid in full. Such term-out
fees for each Loan shall be payable on each date on which interest
is payable with respect to such Loan pursuant to Section 2.07
occurring after the Commitment Termination Date, and on the date
the Term Loan of such Bank shall be repaid in its entirety;
provided that any term-out fees accruing after the first
anniversary of the Commitment Termination Date shall be payable on
demand.
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(d) Agents' Fees. The Borrower shall pay to the
Administrative Agent and the Syndication Agent, each for its own
account, one or more fees in such amounts and at such times as has
been previously agreed between the Borrower and each of them.
Section 2.10. Optional Termination or Reduction of
Commitments . During the Revolving Credit Period, the Borrower
may, upon at least three Domestic Business Days' notice to the
Administrative Agent (which notice the Administrative Agent will
promptly deliver to the Banks), (i) terminate the Commitments
at any time, if no Loans are outstanding at such time or
(ii) ratably reduce from time to time by an aggregate amount
of $10,000,000 or any larger multiple of $1,000,000, the aggregate
amount of the Commitments in excess of the aggregate outstanding
principal amount of the Loans.
Section 2.11. Mandatory Termination of Commitments . The
Commitments shall terminate on the Commitment Termination Date.
Section 2.12. Optional Prepayments . (a) Subject in the
case of Euro-Dollar Loans to Section 2.14, the Borrower may (i)
upon at least one Domestic Business Day's notice to the
Administrative Agent, prepay any Group of Base Rate Loans (or any
Money Market Borrowing bearing interest at the Base Rate pursuant
to Section 8.01(a)) or (ii) upon at least three Euro-Dollar
Business Days' notice to the Administrative Agent, prepay any Group
of Euro-Dollar Loans, in each case in whole at any time, or from
time to time in part in amounts aggregating $10,000,000 or any
larger multiple of $1,000,000, by paying the principal amount to be
prepaid together with accrued interest thereon to the date of
prepayment. Each such optional prepayment shall be applied to
prepay ratably the Loans of the several Banks included in such
Group of Loans (or such Money Market Borrowing).
(b)
Except as provided in Section 2.12(a), the Borrower may not prepay
all or any portion of the principal amount of any Money Market Loan
prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this
Section, the Administrative Agent shall promptly notify each Bank
of the contents thereof and of such Bank's ratable share (if any)
of such prepayment and such notice shall not thereafter be
revocable by the Borrower.
Section 2.13. General Provisions as to Payments . (a)
The Borrower shall make each payment of principal of, and interest
on, the Loans and of fees hereunder, not later than 1:00 P.M. (New
York City time) on the date when due, in Federal or other funds
immediately available in New York City, to the Administrative Agent
at its address referred to in Section 9.01. The Administrative
Agent will promptly distribute to each Bank its ratable share of
each such payment received by the Administrative Agent for the
account of the Banks. Whenever any payment of principal of, or
interest on, the Base Rate Loans or of fees shall be due on a day
which is not a Domestic Business Day, the
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date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal
of, or interest on, the Euro-Dollar Loans shall be due on a day
which is not a Euro-Dollar Business Day, the date for payment
thereof shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case the date for payment thereof shall be
the next preceding Euro-Dollar Business Day. Whenever any payment
of principal of, or interest on, the Money Market Loans shall be
due on a day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day. If the date for any payment of principal
is extended by operation of law or otherwise, interest thereon
shall be payable for such extended time.
(b)
Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Banks
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such
payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause
to be distributed to each Bank on such due date an amount equal to
the amount then due such Bank. If and to the extent that the
Borrower shall not have so made such payment, each Bank shall repay
to the Administrative Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for each
day from the date such amount is distributed to such Bank until the
date such Bank repays such amount to the Administrative Agent, at
the Federal Funds Rate.
Section 2.14 . Funding Losses . If the Borrower makes
any payment of principal with respect to any Fixed Rate Loan or any
Fixed Rate Loan is converted to a different type of Loan (whether
such payment or conversion is pursuant to Article 2, 6 or 8 or
otherwise) on any day other than the last day of the Interest
Period applicable thereto, or the end of an applicable period fixed
pursuant to Section 2.07(c), or if the Borrower fails to borrow,
prepay, convert or continue any Fixed Rate Loans after notice has
been given to any Bank in accordance with Section 2.04(a), 2.08(c)
or 2.12(c) the Borrower shall reimburse each Bank within 15 days
after demand for any resulting loss or expense incurred by it (or
by an existing or prospective Participant in the related Loan),
including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding
loss of margin for the period after any such payment or conversion
or failure to borrow, prepay, convert or continue; provided
that such Bank shall have delivered to the Borrower a certificate
as to the amount of such loss or expense, which certificate shall
be conclusive in the absence of manifest error.
Section 2.15. Computation of Interest and Fees .
Interest based on the Prime Rate and fees hereunder shall be
computed on the basis of a year of 365 days (or 366 days in a leap
year) and paid for the actual number of days elapsed (including the
first day but excluding the last day). All other interest shall
be
26
computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but
excluding the last day).
Section 2.16. Withholding Tax Exemption . At least five
Domestic Business Days prior to the first date on which interest or
fees are payable hereunder for the account of any Bank, each Bank
that is not incorporated under the laws of the United States of
America or a state thereof agrees that it will deliver to each of
the Borrower and the Administrative Agent two duly completed copies
of (i) United States Internal Revenue Service Form W-8BEN (or any
successor form), certifying that such Bank is entitled to benefits
under an income tax treaty to which the United States is a party
which exempts such Bank from United States withholding tax or
reduces the rate of withholding tax on payments received for the
account of such Bank under this Agreement and the Notes, or (ii)
United States Internal Revenue Service Form W-8ECI (or any
successor form), certifying that the income receivable by such Bank
under this Agreement and the Notes is effectively connected with
the conduct of a trade or business in the United States. Each Bank
which so delivers a Form W-8BEN or W-8ECI further undertakes to
deliver to each of the Borrower and the Administrative Agent two
additional copies of such form (or a successor form) on or before
the date that such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form
so delivered by it, and such amendments thereto or extensions or
renewals thereof as may be reasonably requested by the Borrower or
the Administrative Agent, in each case certifying to the effect set
forth in clause (i) or (ii) above, as applicable, unless an event
(including without limitation any change in treaty, law or
regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Bank from duly completing
and delivering any such form with respect to it and such Bank
advises the Borrower and the Administrative Agent that it is not
capable of making the certifications set forth in clause (i) or
(ii) above, as applicable.
Section 2.17 . Increase of Commitments . (a) Upon at
least 15 days' prior notice to the Administrative Agent (which
notice the Administrative Agent shall promptly transmit to each of
the Banks), the Borrower shall have the right, subject to the terms
and conditions set forth below, to increase the aggregate amount of
the Commitments in multiples of $5,000,000; provided that
the amount of such increase when added to the aggregate amount of
all such prior increases in the Commitments hereunder (including by
way of creating new Commitments), on or after the Effective Date,
does not exceed $250,000,000.
(b)
Any such increase in the Commitments hereunder shall apply, at the
option of the Borrower, (x) to the Commitment of one or more Banks;
provided that (i) the Administrative Agent and each Bank
whose Commitment is to be increased shall consent to such increase,
(ii) the amount set forth on the Commitment Schedule opposite the
name of each Bank the Commitment of which is being so increased
shall be amended to reflect the increased Commitment of such Bank
and (iii) if any Committed Loans are outstanding at the time of
such an increase, the Borrower will, notwithstanding anything to
the
27
contrary contained in this Agreement, on the date of such
increase, incur and repay or prepay one or more Committed Loans
from the Banks in such amounts so that after giving effect thereto
the Committed Loans shall be outstanding on a pro rata basis
(based on the Commitments of the Banks after giving effect to the
changes made pursuant to this Section 2.17 on such date) from all
the Banks or (y) to the creation of a new Commitment of one or more
institutions not then a Bank hereunder; provided that (i)
such institution becomes a party to this Agreement as a Bank by
execution and delivery to the Borrower and the Administrative Agent
of counterparts of this Agreement, (ii) the Commitment Schedule
shall be amended to reflect the Commitment of such new Bank, (iii)
if requested by such new Bank, the Borrower shall issue a Note to
such new Bank in conformity with the provisions of Section 2.05,
(iv) if any Committed Loans are outstanding at the time of the
creation of such Commitment of such Bank, the Borrower will,
notwithstanding anything to the contrary contained in this
Agreement, on the date of the creation of such Commitment, incur
and repay or prepay one or more Committed Loans from the Banks in
such amounts so that after giving effect thereto the Committed
Loans shall be outstanding on a pro rata basis (based on the
Commitments of the Banks after giving effect to the changes made
pursuant to this Section 2.17 on such date) from all the Banks and
(v) if such institution is neither a banking institution nor an
affiliate of a Bank, such institution must be consented to by the
Administrative Agent.
(c)
It is understood that any increase in the amount of the Commitments
pursuant to this Section 2.17 shall not constitute an amendment of
this Agreement or the Notes.
ARTICLE 3
CONDITIONS
Section 3.01.
Effectiveness . This Agreement shall become effective on the
date (the " Effective Date ") on which the Administrative
Agent shall have received the following documents or other items,
each dated the Effective Date unless otherwise indicated:
(a) receipt by the Administrative Agent of counterparts
hereof signed by each of the parties hereto (or, in the case of any
party as to which an executed counterpart shall not have been
received, receipt by the Administrative Agent in form satisfactory
to it of telegraphic, telex or other written confirmation from such
party of execution of a counterpart hereof by such party);
(b) receipt by the Administrative Agent for the account of
each Bank that has requested a Note of a duly executed Note dated
on or before the Effective Date complying with the provisions of
Section 2.05;
(c) receipt by the Administrative Agent of an opinion of John
Jay List, Esq., General Counsel of the Borrower, substantially in
the form of Exhibit F hereto and covering such additional matters
relating to the transactions
28
contemplated hereby as the Required Banks
may reasonably request, such opinion to be in form and substance
satisfactory to the Administrative Agent;
(d) receipt by the Administrative Agent of an opinion of Davis Polk
& Wardwell, special counsel for the Administrative Agent,
substantially in the form of Exhibit G hereto and covering such
additional matters relating to the transactions contemplated hereby
as the Required Banks may reasonably request, such opinion to be in
form and substance satisfactory to the Administrative
Agent;
(e)
receipt by the Administrative Agent of a certificate signed by the
Chief Financial Officer or the Chief Executive Officer and an
Assistant Secretary-Treasurer or the Controller of the Borrower to
the effect that the conditions set forth in clauses (c) through
(g), inclusive, of Section 3.03 have been satisfied as of the
Effective Date and, in the case of clauses (c), (e) and (g),
setting forth in reasonable detail the calculations required to
establish such compliance;
(f)
receipt by the Administrative Agent, with a copy for each Bank, of
a certificate of an officer of the Borrower acceptable to the
Administrative Agent stating that all consents, authorizations,
notices and filings required or advisable in connection with this
Agreement are in full force and effect, and the Administrative
Agent shall have received evidence thereof reasonably satisfactory
to it;
(g) evidence satisfactory to the Administrative Agent that
arrangements have been made for payment in full of all amounts owed
under the Prior Credit Agreements;
(h) receipt by the Administrative Agent and the Syndication Agent
(or their respective assigns) and by each Bank of all fees required
to be paid in the respective amounts heretofore mutually agreed,
and all expenses for which invoices have been presented, on or
before the Effective Date; and
(i)
receipt by the Administrative Agent of all documents the Required
Banks may reasonably request relating to the existence of the
Borrower, the corporate authority for and the validity of this
Agreement and the Notes, and any other matters relevant hereto, all
in form and substance satisfactory to the Administrative Agent.
The
Administrative Agent shall promptly notify the Borrower and the
Banks of the Effective Date, and such notice shall be conclusive
and binding on all parties hereto.
Section 3.02. Prior Credit Agreement s . (a) On the
Effective Date, the "Commitments" as defined in each of the Prior
Credit Agreements shall terminate, without further action by any
party thereto, except that Sections 2.14, 7.05, 7.06, 8.03
and 9.03 of each of the Prior Credit Agreements (and Section 2.13
and Article 9 of each of the Prior Credit Agreements insofar as
they relate to such foregoing Sections) shall survive such
termination and any related payment of amounts owed under each of
the Prior Credit Agreements.
29
(b) The Banks which are parties to each Prior Credit
Agreement, comprising the "Required Banks" as defined therein,
hereby waive any requirement of notice of termination of the
"Commitments" (as defined in such Prior Credit Agreement) pursuant
to Section 2.10 thereof and of prepayment of loans thereunder to
the extent necessary to give effect to Section 3.01(g) and Section
3.01(a) hereof; provided that any such prepayment of Loans
shall be subject to Section 2.14 of such Prior Credit
Agreement.
Section 3.03. Borrowings . The obligation of any Bank to
make a Loan on the occasion of any Borrowing is subject to the
satisfaction of the following conditions, in each case at the time
of such Borrowing and immediately thereafter:
(a)
the fact that the Effective Date shall have occurred on or prior to
March 21, 2007;
(b)
receipt by the Administrative Agent of a Notice of Borrowing as
required by Section 2.02 or 2.03, as the case may be;
(c)
the fact that the Borrower is in compliance with Section 7.12(a) of
the 1972 Indenture and Section 7.11 of the 1994 Indenture, as each
Indenture is in effect as of the date hereof;
(d) the fact that the aggregate outstanding principal amount of the
Loans will not exceed the aggregate amount of the
Commitments;
(e)
the fact that no Default shall have occurred and be continuing;
(f)
the fact that the representations and warranties of the Borrower
(in the case of a Borrowing, other than the representation set
forth in Section 4.02(c)) contained in this Agreement shall be true
(it being understood and agreed that the representation and
warranty set forth in Section 4.12 shall be true and correct as to
all information furnished prior to the making of the respective
Loan); and
(g) the fact that (i) there shall be no collateral securing Bonds
issued pursuant to any Indenture of a type other than the types of
collateral permitted to secure Bonds issued pursuant to such
Indenture as of the date hereof, (ii) the Allowable Amount of
Eligible Collateral then pledged under any Indenture shall not
exceed 150% of the aggregate principal amount of Bonds then
Outstanding under such Indenture and (iii) no collateral shall
secure Bonds other than (A) Eligible Collateral under such
Indenture the Allowable Amount of which is included within the
computation under subsection (ii) above or (B) collateral
previously so pledged which ceases to be such Eligible Collateral
not as a result of any acts or omissions to act of the Borrower
(other than the declaration of an " event of default " as
defined in a Mortgage which results in the exercise of any right or
remedy described in such Mortgage); each defined term used
in
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