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Conduit Facility, Transfer and Revolving Credit Agreement
Dated as of November 24, 1998
among
ADC Telecommunications, Inc., as Borrower
Windmill Funding Corporation, as a Conduit,
Amsterdam Funding Corporation, as a Conduit,
ABN AMRO Bank N.V.,
as Agent, as a Liquidity Provider and as the Enhancer
and
the other financial institutions party hereto,
as Committed Lenders
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TABLE OF CONTENTS
Section Heading Page
Article I Definitions 7
Section 1.1. Certain Defined Terms. 7
Section 1.2. Other Interpretive Provisions 28
Section 1.3. Accounting Principles 29
Article II Uncommitted Conduit Facility 29
Section 2.1. Conduit Facilities 30
Section 2.2. Manner of Borrowing 30
Section 2.3. Interest Rates and Payments 30
Section 2.4. Maturity Dates; Prepayments 31
Section 2.5. The Participating Interests. 31
Article III Sales from Amsterdam; Allocations 32
Section 3.1. Required Purchases from Amsterdam 32
Article IV The Committed Credits 34
Section 4.1. Amounts and Terms of Commitments 34
Section 4.2 Subject Bank Loans. 34
Section 4.3. Loan Accounts 34
Section 4.4. Procedure for Committed Borrowing 35
Section 4.5. Conversion and Continuation Elections for Loans 36
Section 4.6. Voluntary Termination or Reduction of Commitments 37
Section 4.7. Optional Prepayments 37
Section 4.8. Repayment 37
Section 4.9. Interest 38
Section 4.10. Fees 38
Section 4.11. Commitment of Fees and Interest 39
Section 4.12. Payments by the Borrower 39
Section 4.13. Assumed Payments 40
Section 4.14. Sharing of Payments, Etc. 40
Section 4.15. Extension of Liquidity Termination Date 41
Article V Taxes, Yield Protection and Illegality 42
Section 5.1. Taxes 42
Section 5.2. Illegality 43
Section 5.3. Increased Costs and Reduction of Return 43
Section 5.4. Funding Losses 44
Section 5.5. Inability to Determine Rates 45
Section 5.6. Certificates of Lenders 45
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Section 5.7. Survival 45
Article VI Conditions Precedent 45
Section 6.1. Conditions to Effectiveness of this Agreement 46
Section 6.2. Conditions to All Committed Loans 47
Article VI Representations and Warranties 47
Section 7.1. Corporate Existence and Power 48
Section 7.2. Corporate Authorization; No Contravention 48
Section 7.3. Governmental Authorization 48
Section 7.4. Binding Effect 48
Section 7.5. Litigation 48
Section 7.6. No Default 49
Section 7.7. ERISA Compliance 49
Section 7.8. Use of Proceeds, Margin Regulations 50
Section 7.9. Title to Properties 50
Section 7.10. Taxes 50
Section 7.11. Financial Condition 50
Section 7.12. Environmental Matters 50
Section 7.13. Regulated Entities 51
Section 7.14. No Burdensome Restrictions 51
Section 7.15. Copyrights, Patents, Trademarks and Licenses, Etc. 51
Section 7.16. Subsidiaries 52
Section 7.17. Insurance 52
Section 7.18. Swap Obligations 52
Section 7.19. Full Disclosure 52
Section 7.20. Year 2000 Compatibility 52
Article VIII Affirmative Covenants 53
Section 8.1. Financial Statements 53
Section 8.2. Certificates, Other Information 53
Section 8.3. Notices 54
Section 8.4. Preservation of Corporate Existence, Etc. 55
Section 8.5. Maintenance of Property 56
Section 8.6. Insurance 56
Section 8.7. Payment of Obligations 56
Section 8.8. Compliance with Laws 57
Section 8.9. Compliance with ERISA 57
Section 8.10. Inspection of Property and Books and Records 57
Section 8.11. Environmental Laws 57
Section 8.12. Use of Proceeds 57
Section 8.13. Further Assurances 58
Section 8.14. Year 2000 Compatibility 58
Article IX Negative Covenants 58
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Section 9.1. Limitation on Liens 58
Section 9.2. Disposition of Assets 60
Section 9.3. Consolidations and Mergers 60
Section 9.4. Loans and Investments 61
Section 9.5. Limitation on Indebtedness 62
Section 9.6. Transactions with Affiliates 62
Section 9.7. Use of Proceeds 62
Section 9.8. Contingent Obligations 62
Section 9.9. Lease Obligations 63
Section 9.10. Restricted Payments 63
Section 9.11. ERISA 64
Section 9.12. Change in Business 64
Section 9.13. Accounting Changes 64
Section 9.14. Negative Pledges, Restrictive Agreements, etc. 64
Section 9.15. Ability to Amend; Restrictive Agreements. 64
Article X Financial Tests 65
Section 10.1. Net Worth 65
Section 10.2. Funded Debt to EBITDA Ratio 65
Section 10.3. EBITDA to Interest Expense Ratio 65
Article XI Events of Default 65
Section 11.1. Event of Default 65
Section 11.2. Remedies 68
Section 11.3. Rights Not Exclusive 68
Section 11.4. Allocations and Distributions 68
Article XII The Agent 69
Section 12.1. Appointment and Authorization: Agent 69
Section 12.2. Delegation of Duties 69
Section 12.3. Liability of Agent 69
Section 12.4. Reliance by Age 70
Section 12.5. Notice of Default 70
Section 12.6. Credit Decision 70
Section 12.7. Indemnification of Agent 71
Section 12.8. Agent in Individual Capacity 71
Section 12.9. Successor Agent 71
Section 12.10. Withholding Tax 72
Article XII Miscellaneous 73
Section 13.1. Amendments and Waiver 73
Section 13.2. Notices 74
Section 13.3. No Waiver: Cumulative Remedies 75
Section 13.4. Costs and Expenses 75
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Section 13.5. Borrower Indemnification 75
Section 13.6. Payments Set Aside 76
Section 13.7. Successors and Assigns 76
Section 13.8. Participations; Assignments 76
Section 13.9. Confidentiality 78
Section 13.10. Set-off 78
Section 13.11. Notification of Addresses, Lending Offices, Etc. 78
Section 13.12. Counterparts 79
Section 13.13. Severability 79
Section 13.14. No Third Parties Benefited 79
Section 13.15. Governing Law and Jurisdiction 79
Section 13.16. Waiver of Jury Trial 79
Section 13.18. Entire Agreement 80
Section 13.19. Agreement Not to Petition 80
Section 13.20. Excess Funds 80
Section 13.21. Rating Agency Approval 80
SCHEDULES
Schedule 4.1 Commitments 93
Schedule 7.5 Litigation 94
Schedule 7.7 ERISA 95
Schedule 7.11 Permitted Liabilities 96
Schedule 7.12 Environmental Matters 97
Schedule 7.16 Subsidiaries and Minority Interests 98
Schedule 7.17 Insurance Matters 102
Schedule 9.1 Permitted Liens 103
Schedule 9.5 Permitted Indebtedness 104
Schedule 9.8 Contingent Obligations 105
Schedule 13.2 Lending Offices; Addresses for Notices 106
EXHIBITS
Exhibit A Form of Conduit Note A-117
Exhibit B Form of Conduit Borrowing Request B-119
Exhibit C Form of Assignment Conduit to Committed Lender C-121
Exhibit D Form of Notice of Borrowing D-125
Exhibit E Form of Notice of Conversion/Continuation E-127
Exhibit F Form of Compliance Certificate F-128
Exhibit G-1 Form of Legal Opinion of Borrower's General Counsel G-1-131
Exhibit G-2 Form of Legal Opinion of Borrower's Outside Counsel G-2-132
Exhibit H Form of Committed Loan Note H-133
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CONDUIT FACILITY, TRANSFER AND
REVOLVING CREDIT AGREEMENT
This Conduit Facility, Transfer and Revolving Credit Agreement is
entered into as of November 24, 1998, among ADC Telecommunications, Inc., a
Minnesota corporation (the "BORROWER"), Windmill Funding Corporation, a Delaware
Corporation ("WINDMILL"), Amsterdam Funding Corporation, a Delaware Corporation
("AMSTERDAM"), the several financial institutions from time to time party to
this Agreement (collectively, the "LIQUIDITY PROVIDERS" and individually, a
"LIQUIDITY PROVIDER") and ABN AMRO Bank N.V., in its individual capacity as a
Liquidity Provider and as the Enhancer and in its capacity as agent for the
Lenders (the "AGENT").
Whereas, each Conduit may, from time to time, in its sole discretion
make uncommitted loans to the Borrower, upon the terms and conditions set forth
in this Agreement; and
Whereas, the Committed Lenders have agreed to make available to the
Borrower a committed revolving credit facility, upon the terms and conditions
set forth in this Agreement;
Now, Therefore, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. CERTAIN DEFINED TERMS. The following terms have the
following meanings:
"ABN AMRO" means ABN AMRO Bank N.V., in its individual capacity, and its
successors and assigns.
"ACQUISITION" means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the capital
stock, partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person (other than a Person
that is a Subsidiary) PROVIDED that the Borrower or the Subsidiary is the
surviving entity.
"ADDITIONAL LIQUIDITY PROVIDER" is defined in Section 4.15(b).
"ADMINISTRATION AGREEMENT" means, for Amsterdam, the Administration
Agreement, dated as of August 13, 1996, between Lord Securities Corporation, as
the Management Company for Amsterdam, and ABN AMRO Bank N.V., as the
Administrator for Amsterdam and, for Windmill, the Second Amended and Restated
Administration Agreement, dated as of November 15, 1994, between Lord Securities
Corporation, as the Management Company for
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Windmill, and ABN AMRO Bank N.V., as the Administrator for Windmill.
"ADVANCE" means for any Conduit, the amount of funds it advances to the
Borrower on a Borrowing Date for an Interest Period.
"AFFILIATE" means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, membership interests, by contract,
or otherwise.
"AGENT" means ABN AMRO Bank N.V., in its capacity as agent for the
Lenders hereunder, and any successor agent appointed pursuant to Section 12.9.
"AGENT-RELATED PERSONS" means the Agent, together with its respective
Affiliates, and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"AGENT'S PAYMENT OFFICE" means the address for payments set forth on
Schedule 13.2 or such other address as the Agent may from time to time specify.
"AGREEMENT" means this Conduit Facility, Transfer and Revolving Credit
Agreement, as amended, modified or supplemented from time to time.
"AGGREGATE COMMITMENT" means the aggregate of all Committed Lenders'
Commitments.
"AGGREGATE UNUSED COMMITMENT" means the aggregate of each Committed
Lender's Unused Commitment.
"AMSTERDAM" is defined in the preamble.
"AMSTERDAM AGGREGATE COMMITMENT" means, as of any date, the sum of
(i) the portions of the Commitments of Windmill Committed Lenders that are not
Windmill Commitments as of such date plus (ii) the Commitments of all other
Committed Lenders.
"AMSTERDAM COMMITMENT" means, as of any date, (i) for a Windmill
Committed Lender, its Commitment minus its Windmill Commitment and (ii) for any
other Committed Lender, its Commitment.
"AMSTERDAM COMMITTED LENDERS" means (i) the Amsterdam Enhancer,
(ii) each Liquidity Provider that is not a Windmill Committed Lender, and
(iii) to the extent of its Commitment minus the sum of its Windmill Commitment
and the principal amount of its outstanding Loans, each Liquidity Provider that
is a Windmill Committed Lender.
"AMSTERDAM ENHANCER" means ABN AMRO as issuer of the Program LOC for
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Amsterdam.
"AMSTERDAM PERMITTED INVESTMENTS" means (a) evidences of indebtedness,
maturing within thirty (30) days after the date of purchase thereof, issued by,
or guaranteed by the full faith and credit of, the federal government of the
USA, (b) repurchase agreements with banking institutions or broker-dealers
registered under the Securities Exchange Act of 1934 the short-term unsecured
obligations of which are rated at least "A-1" (or the equivalent) by S&P and at
least "P-1" (or the equivalent) by Moody's which are fully secured by
obligations of the kind specified in clause (a), (c) money market funds
(i) rated not lower than the highest rating category from Moody's and "AAA m" or
"AAAm-g," from S&P or (ii) which are otherwise acceptable to the Rating Agencies
or (d) commercial paper issued by any corporation incorporated under the laws of
the USA and rated at least "A-1" (or the equivalent) by S&P and at least "P-1"
(or the equivalent) by Moody's.
"AMSTERDAM RATABLE SHARE" means, as of any date, for each Amsterdam
Committed Lender, such Lender's Amsterdam Commitment divided by the Amsterdam
Aggregate Commitment. If, however, on the date any payment for any Put is to be
made by the Amsterdam Committed Lenders, the sum of the outstanding Amsterdam
Interest in Advances acquired from Amsterdam of the Amsterdam Enhancer plus
Program Unreimbursed Draw Amount of the Amsterdam Enhancer is in excess of its
Amsterdam Ratable Share of the outstanding Amsterdam Interest and Program
Unreimbursed Draw Amount of all Amsterdam Committed Lenders, then for purposes
of such Put the Amsterdam Ratable Share of each Amsterdam Committed Lender shall
be replaced with a percentage equal for each Amsterdam Committed Lender to
(a) its Amsterdam Commitment minus its Amsterdam Interest acquired from
Amsterdam and, in the case of the Amsterdam Enhancer, its Program Unreimbursed
Draw Amount before such Put (its "EXISTING LOAN AMOUNT") divided by (b) the
Amsterdam Aggregate Commitment minus the sum of the Existing Loan Amounts of all
Amsterdam Committed Lenders.
"APPLICABLE MARGIN" means a margin, expressed in basis points per annum,
based on the Funded Debt to EBITDA Ratio set forth in Section 10.2, as follows:
Conduit Loan LIBOR
Funded Debt to Program Fee Commitment Fee Commitment Fee Rate Margin
EBITDA Ratio
less than 1.0:1 17.5 12.5 17.5 45.0
greater than or equal to 57.5
1.0:1 but less than 2.0:1 17.5 15 20.0
greater than or equal to
2.0:1 17.5 17.5 22.5 70.0
In addition, for the first 180 days after the Closing Date, the LIBOR
Rate Margin shall be the greater of 60.0 basis points (which includes the 15
basis point Facility Utilization margin referred to in the next sentence) and
the LIBOR Rate Margin set forth above. In addition, as to any LIBOR Rate
Committed Loan, a 15 basis point Facility Utilization margin shall be added to
the then applicable LIBOR Rate Margin expressed above if the Facility
Utilization is greater than 50%. "FACILITY UTILIZATION" means, for any day, the
utilization of the Commitments for such day (or if such day is not a Business
Day the immediately preceding Business Day) as calculated by
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the Agent after giving effect to any Loans or Advances made or repaid on such
date. For purposes hereof, the Commitments shall be deemed utilized on any
given day to the extent of the aggregate outstanding principal amount of the
Loans and the Matured Value of all outstanding Advances on such day.
"ATTORNEY COSTS" means and includes all reasonable fees and
disbursements of any law firm or other external counsel, the reasonable
allocated cost of internal legal services and all disbursements of internal
counsel.
"BANKRUPTCY CODE" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, ET SEQ.), and any successor statute thereto.
"BANKRUPTCY EVENT" means, for any Person, that (a) such Person shall
make a general assignment for the benefit of creditors or any proceeding shall
be instituted by or against such Person seeking to adjudicate it bankrupt or
insolvent, or seeking the liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry or an order for relief or the appointment of a receiver,
trustee or other similar official for it or any substantial part of its property
or (b) such Person shall take any corporate action to authorize any of the
actions set forth in clause (a) of this definition.
"BASE RATE" means, for any day, the higher of: (a) 0.50% per annum above
the latest Federal Funds Rate; and (b) the rate of interest in effect for such
day as publicly announced from time to time by ABN AMRO in Chicago, Illinois, as
its "prime lending rate." The "PRIME LENDING RATE" shall mean the rate
announced by ABN AMRO from time to time as its prime lending rate for commercial
loans within the United States (but is not intended to be the lowest rate of
interest) charged by ABN AMRO in connection with extensions of credit to
debtors. Any change in the "prime lending rate" announced by ABN AMRO shall
take effect at the opening of business on the day specified in the public
announcement of such change.
"BASE RATE COMMITTED LOAN" means a Committed Loan that bears interest
based on the Base Rate.
"BASE RATE LOAN" means a Base Rate Committed Loan or a Base Rate
Transfer Loan.
"BASE RATE TRANSFER LOAN" means a Transfer Loan that bears interest
based on the Base Rate.
"BORROWER" is defined in the preamble.
"BORROWING" means a borrowing hereunder consisting of Loans of the same
Type made to the Borrower on the same day by the Lenders and may be a Committed
Borrowing having, other than in the case of Base Rate Loans, the same Interest
Period.
"BORROWING AMOUNT" is defined in Section 2.2(a).
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"BORROWING DATE" means any date on which a Committed Borrowing occurs
under Section 4.4 or an Advance is made under Section 2.2.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day
on which commercial banks in New York City, New York or Chicago, Illinois are
authorized or required by law to close and, if the applicable Business Day
relates to any LIBOR Rate Committed Loan, means such a day on which dealings are
carried on in the applicable London dollar interbank market.
"CAPITAL ADEQUACY REGULATION" means any guideline, request or directive
of any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case regarding
capital adequacy of any bank or institutional lender or of any Person
controlling a bank or institutional lender.
"CERCLA" has the meaning specified in the definition of "ENVIRONMENTAL
LAWS."
"CHANGE OF CONTROL" of the Borrower means (i) the acquisition by any
Person, entity or "GROUP," within the meaning of Section 13(d)(3) or 14(d)(2) of
the Exchange Act (excluding for this purpose, the Borrower or its Subsidiaries,
or any employee benefit plan of the Borrower or its Subsidiaries which acquires
beneficial ownership of voting securities of the Borrower) of beneficial
ownership (within the meaning of Rule l3d-3 promulgated under the Exchange Act)
of 25% or more of either the then outstanding shares of common stock or the
combined voting power of the Borrower's then outstanding voting securities
entitled to vote generally in the election of directors; or (ii) individuals
who, as of the Closing Date, constitute the Board of Directors (as of the date
hereof the "INCUMBENT BOARD") cease for any reason to constitute at least a
majority of the Board of Directors, PROVIDED that any Person becoming a director
subsequent to the Closing Date whose election, or nomination for election by the
Borrower's stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though such
Person were a member of the Incumbent Board; or (iii) approval by the
stockholders of the Borrower of a reorganization, merger or consolidation, in
each case, with respect to which Persons who were the stockholders of the
Borrower immediately prior to such reorganization, merger or consolidation do
not, immediately thereafter, own more than 25% of the combined voting power
entitled to vote generally in the election of directors of the reorganized,
merged or consolidated Borrower's then outstanding voting securities; or (iv) a
liquidation or dissolution of the Borrower (other than pursuant to the United
States Bankruptcy Code) or the conveyance, transfer or leasing of all or
substantially all of the assets of the Borrower.
"CLOSING DATE" means the date on which all conditions precedent set
forth in Section 6.1 are satisfied or waived by all Lenders (or, in the case of
Section 6.1(e), waived by the Person entitled to receive such payment).
"CODE" means the Internal Revenue Code of 1986 (and any successor
statute thereto), and regulations promulgated thereunder.
"COMMITTED BORROWING" means a Borrowing hereunder consisting of
(i) Loans made on
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the same day by the Committed Lenders ratably according to their respective
Pro Rata Shares and, in the case of LIBOR Rate Committed Loans, having the
same Interest Periods or (ii) a Committed Loan made by a Subject Bank
pursuant to Section 4.2.
"COMMITTED LOAN" means a Loan by a Committed Lender to the Borrower
under Section 4.1 or by a Subject Bank pursuant to Section 4.2, and may be a
LIBOR Rate Committed Loan or a Base Rate Committed Loan (each, a "TYPE" of
Committed Loan).
"COMMITTED LOAN NOTE" has the meaning specified in Section 4.3.
"COMMITTED LENDERS" means the Enhancer and the Liquidity Providers.
"COMMITMENT" has the meaning specified in Section 4.1.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
of Exhibit F.
"CONDUIT NOTE" is defined in Section 2.1.
"CONDUIT PORTION" means a percentage of the Unused Commitment of each
Liquidity Provider equal to the Matured Value of all outstanding Advances
divided by the sum of the Matured Value of all outstanding Advances plus the
principal amount of all outstanding Loans unless no Loans or Advances are
outstanding in which case such percentage shall be equal to 100%.
"CONDUITS" means Windmill and Amsterdam, collectively.
"CONDUIT TERMINATION DATE" means, for each Conduit, the earliest of
(a) the Business Day designated by the applicable Conduit at any time to the
Agent and (b) five days prior to the Liquidity Termination Date.
"CONSENT DATE" is defined in Section 4.15(a).
"CONTINGENT OBLIGATION" means, as to any Person, any direct or indirect
liability of that Person, whether or not contingent, with or without recourse,
(a) with respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the "PRIMARY OBLIGATIONS") of another Person (the "PRIMARY
OBLIGOR"), including any obligation of that Person (i) to purchase, repurchase
or otherwise acquire such primary obligations or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any such primary
obligation, or to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency or any balance sheet
item, level of income or financial condition of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, or (iv) otherwise to assure or hold
harmless the holder of any such primary obligation against loss in respect
thereof (each, a "GUARANTY OBLIGATION"); (b) with respect to any Surety
Instrument issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments; (c) to purchase any
materials, supplies or other property
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from, or to obtain the services of, another Person if the relevant contract
or other related document or obligation requires that payment for such
materials, supplies or other property, or for such services, shall be made
regardless of whether delivery of such materials, supplies or other property
is ever made or tendered, or such services are ever performed or tendered; or
(d) in respect of any Swap Contract. The amount of any Contingent Obligation
shall, in the case of Guaranty Obligations, be deemed equal to the stated or
determinable amount of the primary obligation in respect of which such
Guaranty Obligation is made or, if not stated or if indeterminable, the
maximum reasonably anticipated liability in respect thereof, and in the case
of other Contingent Obligations other than in respect of Swap Contracts,
shall be equal to the maximum reasonably anticipated liability in respect
thereof and, in the case of Contingent Obligations in respect of Swap
Contracts, shall be equal to the Swap Termination Value.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound.
"CONVERSION/CONTINUATION DATE" means any date on which, under
Section 4.5, the Borrower either: (a) converts Committed Loans of one Type to
another Type; or (b) continues as Committed Loans of the same Type, but with a
new Interest Period, Committed Loans having Interest Periods expiring on such
date.
"CP DEALER" means, at any time, each Person that a Conduit then engages
as a placement agent or commercial paper dealer.
"CP NOTES" means the commercial paper notes issued by the applicable
Conduit to fund its Interests in the Advances.
"CP RATE" means, for any Interest Period for an Advance, a rate per
annum equal to the weighted average of the rates at which CP Notes having a term
equal to such Interest Period may be sold by any CP Dealer selected by the
applicable Conduit, as agreed between each such CP Dealer and such Conduit. If
such rate is a discount rate, the CP Rate shall be the rate resulting from the
applicable Conduit's converting such discount rate to an interest-bearing
equivalent rate. The CP Rate shall include all costs and expenses to the
applicable Conduit of issuing the related CP Notes, including all dealer
commissions and note issuance costs in connection therewith.
"DEFAULT" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
"DEPOSITARY AGREEMENT" means, with respect to Windmill, the Second
Amended and Restated Depositary Agreement dated as of November 15, 1994 between
Windmill and The Chase Manhattan Bank, as Depositary for Windmill and, with
respect to Amsterdam, the Depositary Agreement dated as of August 13, 1996
between Amsterdam and The Chase Manhattan Bank, as Depositary for Amsterdam.
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"DOLLARS", "DOLLARS" and "$" each mean lawful money of the United
States.
"DOWNGRADING EVENT" is defined in Section 13.8(c).
"EBITDA" means, for any applicable period, Net Income for such period,
plus, to the extent deducted in determining Net Income for such period, the
aggregate amount of (i) Interest Expense, (ii) federal, state, local and foreign
income taxes and (iii) depletion, depreciation and amortization of tangible and
intangible assets.
"ENHANCER" means the Amsterdam Enhancer and the Windmill Enhancer.
"ENVIRONMENTAL CLAIMS" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or injury
to the environment or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resources damage, or
otherwise alleging liability or responsibility for damages (punitive or
otherwise), cleanup, removal, remedial or response costs, restitution, civil or
criminal penalties, injunctive relief, or other type of relief, resulting from
or based upon the presence, placement, discharge, emission or release (including
intentional and unintentional, negligent and nonnegligent, sudden or nonsudden,
accidental or nonaccidental, placement, spills, leaks, discharges, emissions or
releases) of any Hazardous Material at, in, or from property, whether or not
owned by the Borrower.
"ENVIRONMENTAL LAWS" means all federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authorities, in each case
relating to environmental, health, safety and land use matters; including the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), the Clean Air Act, the Federal Water Pollution Control Act of 1972,
the Solid Waste Disposal Act, the Federal Resource Conservation and Recovery
Act, the Toxic Substances Control Act, and the Emergency Planning and Community
Right-to-Know Act.
"ENVIRONMENTAL PERMITS" is defined in Section 7.12(b).
"EQUITY SWAP" means transactions entered into by the Borrower in April
1998 (for 2,000,000 shares of the Borrower's stock) and October 1998 (for
500,000 and 95,000 shares of the Borrower's stock) in which: (1) the Borrower
sold put options that entitle the holder of the options to sell the above shares
of the Borrower's common stock to the Borrower at certain predetermined prices,
and (2) the Borrower purchased call options that entitle the Borrower to buy
the above shares of its common stock at certain predetermined prices. The
options will be settled with shares of the Borrower's common stock having a
value equal to the difference between the exercise price and the market value at
the time of exercise.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
regulations promulgated thereunder.
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"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA EVENT" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations which is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under Title IV of
ERISA, other than PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Borrower or any ERISA Affiliate.
"EURODOLLAR RESERVE PERCENTAGE" has the meaning specified in the
definition of "LIBOR Rate."
"EVENT OF DEFAULT" means any of the events or circumstances specified in
Section 11.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, and
regulations promulgated thereunder.
"EXISTING LIQUIDITY TERMINATION DATE" is defined in Section 4.15.
"FACE AMOUNT" means the face amount of CP Notes issued on a discount
basis or, for CP Notes not issued on a discount basis, the principal amount of
such CP Notes together with interest thereon to stated maturity.
"FDIC" means the Federal Deposit Insurance Corporation, and any
Governmental Authority succeeding to any of its principal functions.
"FEDERAL FUNDS RATE" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including any
such successor, "H.15(519)") on the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such rate is not so
published on any such preceding Business Day, the rate for such day will be the
arithmetic mean as determined by the Agent of the rates for the last transaction
in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on
that day by each of three leading brokers of Federal funds transactions in New
York City selected by the Agent.
"FEE LETTER" has the meaning specified in Section 4.10(a).
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"FUNDED DEBT" of a Person means "Indebtedness" of such Person of the
types described in clauses (a), (b), (c), and (d) of the definition thereof,
together with all Indebtedness of the type described in such clauses secured by
(or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien upon or in property (including accounts
and contracts rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness.
"FRB" means the Board of Governors of the Federal Reserve System, and
any Governmental Authority succeeding to any of its principal functions.
"FURTHER TAXES" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar charges
(including, without limitation, net income taxes and franchise taxes), and all
liabilities with respect thereto, imposed by any jurisdiction on account of
incremental amounts payable or paid pursuant to Section 5.1.
"GAAP" means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date of
determination.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"GUARANTY OBLIGATION" has the meaning specified in the definition of
"Contingent Obligation."
"HAZARDOUS MATERIALS" means all those substances that are regulated by,
or which may form the basis of liability under, any Environmental Law, including
any substance identified under any Environmental Law as a pollutant,
contaminant, hazardous waste, hazardous constituent, special waste, hazardous
substance, hazardous material, or toxic substance, or petroleum or petroleum
derived substance or waste.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than trade
payables entered into in the ordinary course of business on ordinary terms); (c)
all non-contingent reimbursement or payment obligations with respect to Surety
Instruments; (d) all obligations evidenced by notes, bonds, debentures or
similar instruments, including obligations so evidenced incurred in connection
with the acquisition of property, assets or businesses; (e) all obligations with
respect to capital leases; (f) all indebtedness referred to in clauses (a)
through (e) above secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien upon
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or in property (including accounts and contracts rights) owned by such
Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness; and (g) all Guaranty Obligations in respect of
indebtedness or obligations of others of the kinds referred to in clauses (a)
through (e) above. For all purposes of this Agreement, the Indebtedness of
any Person shall include all recourse Indebtedness of any partnership in
which such Person is a general partner and shall exclude all obligations (or
any portion of such obligations) which is (i) incidentally incurred by the
Borrower and its Subsidiaries (other than a Subsidiary described in clause
(ii) below) in connection with the securitization of assets that constitutes
the sale of such assets under applicable accounting rules or (ii) incurred by
a Subsidiary that is formed for the sole purpose of a securitization
transaction described in clause (i) above.
"INDEMNIFIED LIABILITIES" has the meaning specified in Section 13.5.
"INDEMNIFIED PERSON" has the meaning specified in Section 13.5.
"INDEPENDENT AUDITOR" has the meaning specified in Section 8.1(a).
"INSOLVENCY PROCEEDING" means, with respect to any Person, (a) any case,
action or proceeding with respect to such Person before any court or other
Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, windingup or relief of debtors, or
(b) any general assignment for the benefit of creditors, composition,
marshalling of assets for creditors, or other, similar arrangement in respect of
its creditors generally or any substantial portion of its creditors; undertaken
under U.S. Federal, state or foreign law, including the Bankruptcy Code.
"INTEREST" means, for each Lender and any Advance, the undivided
ownership interest it holds through the Agent equal to such Lender's Percentage
Factor in such Advance, which interest shall be for each Committed Lender, a
Transfer Loan.
"INTEREST EXPENSE" means, for any applicable period, the aggregate
consolidated interest expense (both cash and noncash and determined without
regard to original issue discount) of the Borrower and its Subsidiaries for such
period PLUS, without duplication, any interest expense which would have accrued
during such period if all Indebtedness which existed immediately after the
consummation of any merger to which the Borrower is a party or of any
Acquisition by the Borrower or its Subsidiaries, in each case, during such
period was in existence on the first day of such period, as determined in
accordance with GAAP, including, to the extent allocable to interest expense in
accordance with GAAP, (i) all other fees paid or owed with respect to the
issuance or maintenance of Contingent Obligations (including letters of credit
of the Borrower and its Subsidiaries), (ii) net costs or benefits payable under
Swap Contracts of the Borrower and its Subsidiaries and (iii) the portion of any
payments made in respect of obligations in respect of capitalized leases of the
Borrower and its Subsidiaries allocable to interest expense.
"INTEREST PAYMENT DATE" means, (i) for any Advance, any Transfer Loan or
any LIBOR Rate Committed Loan, the last day of its Interest Period and (ii) as
to any Base Rate Committed Loan, the last Business Day of each calendar quarter,
PROVIDED, HOWEVER, that if any Interest Period for a LIBOR Rate Committed Loan
exceeds three months the date that falls three months
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after the beginning of such Interest Period and after each Interest Payment
Date thereafter is also an Interest Payment Date.
"INTEREST PERIOD" means (I) with respect to an Advance under Article II,
the period commencing on the date an Advance is made and ending 1-270 days
thereafter; PROVIDED, HOWEVER, that: (a) an Interest Period for an Advance that
would extend beyond the Conduit Termination Date may not be selected; and (b)
whenever the last day of any Interest Period for an Advance would otherwise be a
day that is not a Business Day, the last day of such Interest Period shall be
extended to the next succeeding Business Day; and
(II) as to any LIBOR Rate Committed Loan, the period commencing on the
Borrowing Date that such Loan is disbursed or on the Conversion/Continuation
Date on which such Loan is converted into or continued as a LIBOR Rate Committed
Loan, and ending on the date one, two, three or six months thereafter (and any
other period that is 12 months or less and is consented to by all Lenders in the
given instance) as selected by the Borrower in its Notice of Borrowing or Notice
of Conversion/Continuation, as the case may be PROVIDED that:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, that Interest Period shall be extended to the
following Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the preceding Business Day;
(ii) any Interest Period that begins on the last 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 end on the last Business Day of the calendar month at the
end of such Interest Period; and
(iii) no Interest Period for any LIBOR Rate Committed Loan
shall extend beyond November 24, 2003; and
(III) as to any Transfer Loan, the last day of the Interest Period for
the Advance relating to such Transfer Loan.
"INVESTMENT" means, for each Lender, for any Advance, the difference of
(a) (i) in the case of a Conduit, the principal amount of such Advance and
(ii) in the case of a Committed Lender, the aggregate amount of any payments or
exchanges made by, or on behalf of, such Committed Lender to such Conduit to
acquire an Interest in the principal amount of such Advance minus (b) all
amounts (including for each Conduit amounts received from Committed Lenders)
received or exchanged and applied by the Agent or such Lender to reduce such
Lender's Interest in the principal amount of such Advance; PROVIDED, HOWEVER,
that such Lender's Investment shall be restored to the extent any amounts so
received or exchanged and applied are rescinded or must be returned for any
reason.
"IRS" means the Internal Revenue Service, and any Governmental Authority
succeeding to any of its principal functions under the Code.
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"JOINT VENTURE" means a corporation, partnership, limited liability
company, joint venture or other similar legal arrangement (whether created by
contract or conducted through a separate legal entity) now or hereafter formed
by the Borrower or any of its Subsidiaries with another Person in order to
conduct a common venture or enterprise with such Person.
"LENDER" means, collectively, the Conduits and the Committed Lenders.
"LENDING OFFICE" means, as to any Lender, the office or offices of such
Lender specified as its "Lending Office" or "Domestic Lending Office" or "LIBOR
Lending Office," as the case may be, on Schedule 13.2, or such other office or
offices as the Lender may from time to time notify the Borrower and the Agent.
"LIBOR RATE" means, for any Interest Period, with respect to LIBOR Rate
Committed Loans comprising part of the same Borrowing, the rate of interest per
annum (rounded upward to the next 1/16th of 1%) determined by the Agent as
follows:
LIBOR Rate = LIBOR
-----
1 .00 - Eurodollar Reserve Percentage
Where,
"EURODOLLAR RESERVE PERCENTAGE" means for any day for any
Interest Period the maximum reserve percentage (expressed as a decimal,
rounded upward to the next 1/100th of 1%) in effect on such day (that is
applicable to any Lender) under regulations issued from time to time by
the FRB for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with
respect to Eurocurrency funding (currently referred to as "EUROCURRENCY
LIABILITIES"); and
"LIBOR" means the rate of interest per annum determined by the
Agent as the rate of interest at which dollar deposits in the
approximate amount of the Loans to be made or continued as LIBOR Rate
Committed Loans, or converted into a LIBOR Rate Committed Loan, and for
the relevant Interest Period therefor as quoted on the Telerate Page
3750 (as defined herein) as of 11:00 a.m. (London time) on the day two
(2) Business Days before the commencement of such Interest Period. If
Telerate Page 3750 is not available, such rate of interest shall be that
quoted by the Reference Bank and having a maturity comparable to such
Interest Period as would be offered to major banks in the London
interbank market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such Interest
Period.
The LIBOR Rate shall be adjusted automatically as to all LIBOR
Rate Committed Loans then outstanding as of the effective date of any
change in the Eurodollar Reserve Percentage.
"LIBOR RATE COMMITTED LOAN" means a Committed Loan that bears interest
based on the LIBOR Rate.
"LIEN" means any security interest, mortgage, deed of trust, pledge,
hypothecation,
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assignment, charge or deposit arrangement, encumbrance, lien (statutory or
other) or preferential arrangement of any kind or nature whatsoever in
respect of any property (including those created by, arising under or
evidenced by any conditional sale or other title retention agreement, the
interest of a lessor under a capital lease, or the filing of any financing
statement naming the owner of the asset to which such lien relates as debtor,
under the UCC or any comparable law) and any contingent or other agreement to
provide any of the foregoing, but not including the interest of a lessor
under an operating lease.
"LIQUIDITY PROVIDER" means each of the institutions listed as a
Liquidity Provider on Schedule 4.1.
"LIQUIDITY TERMINATION DATE" means the earliest to occur of (a)
November 23, 1999, as such date may be extended from time to time pursuant to
Section 4.15 and (b) the date on which the Commitments of the Committed Lenders
terminate in accordance with the provisions of this Agreement.
"LOAN" means a Committed Loan or a Transfer Loan.
"LOAN DOCUMENTS" means this Agreement, any Notes, the Fee Letter, and
all other documents delivered to the Agent or any Lender in connection with the
transactions contemplated by this Agreement.
"LOAN PORTION" means a percentage of the Unused Commitment of each
Liquidity Provider equal to the principal amount of all Loans divided by the sum
of the Matured Value of all outstanding Advances plus the principal amount of
all outstanding Loans unless no Loans or Advances are outstanding in which case
such percentage shall be equal to 0%.
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation U of the FRB.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) or prospects of the Borrower and its Subsidiaries taken
as a whole; or (b) a material adverse effect upon the legality, validity,
binding effect or enforceability against the Borrower of any Loan Document.
"MATURED VALUE" means, of any Advance, the sum of (a) the principal
amount of such Advance plus (b) all unpaid interest which is then scheduled to
become due thereon (whether or not then due).
"MATURITY DATE" is defined in Section 2.4
"MAXIMUM PRINCIPAL AMOUNT" is defined in Section 2.1.
"MAXIMUM WINDMILL COMMITMENT" means the Commitments of all Windmill
Committed Lenders less the outstanding principal amount of all Loans made by the
Windmill Committed Lenders (deducting from such principal amount of such Loans
the amount of participating
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interests in such principal amount of such Loans purchased by other Committed
Lenders under Section 2.5).
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a "multiemployer plan," within the meaning
of Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes, is making, or is obligated to make contributions or, during the preceding
three calendar years, has made, or been obligated to make, contributions.
"NET INCOME" means, for any applicable period, the aggregate of all
amounts which, in accordance with GAAP, would be included as net income (or net
loss) on a consolidated statement of income of the Borrower and its Subsidiaries
for such period, PLUS, without duplication, the net income (or net loss) for
such period attributable to the assets or capital stock of any Person which was
the subject of a merger with the Borrower or of an Acquisition by the Borrower
or its Subsidiaries during such period; PROVIDED, HOWEVER, that "NET INCOME"
shall exclude (i) the effect of any extraordinary or other nonrecurring noncash
gains or losses outside the ordinary course of business and (ii) any writeup in
the value of any asset (to the extent such writeup exceeds any writedown taken
in connection with the same transaction or event which gave rise to such
writeup).
"NET ISSUANCE PROCEEDS" means, as to any issuance of debt or equity by
any Person, cash proceeds and noncash proceeds received or receivable by such
Person in connection therewith, net of reasonable outofpocket costs and expenses
paid or incurred in connection therewith in favor of any Person not an Affiliate
of such Person, such costs and expenses not to exceed 5% of the gross proceeds
of such issuance.
"NET WORTH" means, as of any date of determination, total consolidated
assets of the Borrower as of such date MINUS total consolidated liabilities of
the borrower as of such date.
"NON-EXTENDING LIQUIDITY PROVIDER" is defined in Section 4.15.
"NOTICE OF BORROWING" means a notice in substantially the form of
Exhibit D.
"NOTICE OF CONVERSION/CONTINUATION" means a notice in substantially the
form of Exhibit E.
"OBLIGATIONS" means all advances, debts, liabilities, obligations,
covenants and duties arising under any Loan Document owing by the Borrower to
any Lender, the Agent or any Indemnified Person, whether direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter arising.
"ORGANIZATION DOCUMENTS" means as to any Person which is (i) a
corporation, the certificate or articles of incorporation and bylaws of such
Person, (ii) a limited liability company, the limited liability company
agreement or similar agreement of such Person, (iii) a partnership, the
partnership agreement or similar agreement of such Person, or (iv) any other
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form of entity or organization, the organizational documents analogous to the
foregoing.
"OTHER TAXES" means any present or future stamp, court or documentary
taxes or any other excise or property taxes, charges or similar levies (which
are understood not to include income taxes) which arise from any payment made
hereunder or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, this Agreement or any other Loan
Documents.
"PARTICIPANT" has the meaning specified in Section 13.8(a).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions under ERISA.
"PENSION PLAN" means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA which the Borrower sponsors, maintains, or
to which it makes, is making, or is obligated to make contributions, or in the
case of a multiple employer plan (as described in Section 4064(a) of ERISA) has
made contributions at any time during the immediately preceding five (5) plan
years.
"PERCENTAGE" means, for any Committed Lender, the fraction expressed as
a percentage, obtained by dividing (i) the Commitment of such Committed Lender
by (ii) the Aggregate Commitment.
"PERCENTAGE FACTOR" means, for each Lender and each Advance in which it
holds an Investment, the quotient (expressed as a percentage) of (a) the sum of
such Lender's Investment in the Advance divided by (b) the outstanding principal
amount of such Advance.
"PERMITTED LIENS" has the meaning specified in Section 9.1.
"PERMITTED SWAP OBLIGATIONS" means all obligations (contingent or
otherwise) of the Borrower or any Subsidiary existing or arising under Swap
Contracts, PROVIDED that each of the following criteria is satisfied: (a) such
obligations are (or were) entered into by such Person in the ordinary course of
business for the purpose of directly mitigating risks associated with
liabilities, commitments or assets held or reasonably anticipated by such
Person, or changes in the value of securities issued by such Person in
conjunction with a securities repurchase program not otherwise prohibited
hereunder, and not for purposes of speculation or taking a "market view"; and
(b) such Swap Contracts do not contain any provision ("walk-away" provision)
exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party.
"PERSON" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture or Governmental Authority.
"PLAN" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which the Borrower sponsors or maintains or to which the Borrower makes,
is making, or is obligated to
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make contributions and includes any Pension Plan.
"PRO RATA SHARE" means, as to any Committed Lender at any time, the
percentage equivalent (expressed as a decimal, rounded to the ninth decimal
place) at such time of such Lender's Unused Commitment divided by the Aggregate
Unused Commitment except that, with respect to a Committed Borrowing made by a
Subject Bank pursuant to Section 4.2, "PRO RATA SHARE" means 100% of such
Committed Borrowing.
"PROGRAM LOC" means, for Amsterdam, the irrevocable transferable letter
of credit No. S579017, dated June 11, 1997, issued by the Amsterdam Enhancer at
the request of Amsterdam, and each letter of credit issued in substitution or
replacement therefor and, for Windmill, the irrevocable transferable letter of
Credit No. S550115, dated November 3, 1995, issued by the Windmill Enhancer at
the request of Windmill, and each letter of credit issued in substitution or
replacement therefor.
"PROGRAM UNREIMBURSED DRAW AMOUNT" means the sum of all draws in
connection herewith under the applicable Program LOC which have not been
reimbursed (whether through the payment of cash or the exchange of assets),
together with all interest thereon and all other amounts, if any, payable in
connection therewith.
"PURCHASE AMOUNT" means, for each Committed Lender for any Put of an
Advance, such Committed Lender's Purchased Percentage for such Put multiplied by
the sum of (a) (i) for the Enhancer, the amount of the applicable Investment of
the Conduit in such Advance being transferred pursuant to such Put and (ii) for
each Liquidity Provider, the lesser of (A) the amount of the applicable
Investment of the Conduit in such Advance being transferred pursuant to such Put
and (B) the product of (1) the quotient of the amount of the applicable
Investment of the Conduit in such Advance being transferred pursuant to such Put
divided by the applicable Investment of the Conduit in such Advance (before
giving effect to such Put) multiplied by (2) the applicable Conduit's Investment
in such Advance at such time (or, if the Agent cannot determine the applicable
Conduit's Investment at such time, at the most recent prior time at which the
Agent can determine the applicable Conduit's Investment) outstanding from the
Borrower if it is a Qualified Borrower as determined below plus (b) all unpaid
interest owed to, or which may become payable to, the applicable Conduit under
such Advance (whether or not then due or payable) to the maturity of such
Advance. The applicable Conduit shall calculate the Purchase Amount for each
Advance subject to a Put on the date of such Put based on the status of a
Borrower as a Qualified Borrower as most recently determined by ABN AMRO in
connection with an Advance made to such Borrower. Regardless whether such
determination was complete or accurate, such calculation shall be conclusive and
binding absent manifest error.
"PURCHASED PERCENTAGE" means, for any Put, for each Committed Lender,
its Windmill Ratable Share or Amsterdam Ratable Share, as applicable, or such
lesser percentage as is necessary to prevent the Purchase Price of such Lender
from exceeding the portion of its Commitment then allocated to Amsterdam or
Windmill hereunder, as applicable (unless, in the case of the Enhancer, it
elects not to reduce its Purchased Percentage in whole or in part).
"PURCHASING LIQUIDITY PROVIDER" is defined in Section 13.8(b).
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"PUT" is defined in Section 3.1.
"QUALIFIED BORROWER" means ABN AMRO determines the Borrower is of
investment grade credit quality as of the date an Advance is made to the
Borrower based upon financial information available to ABN AMRO for the Borrower
and/or the credit rating assigned by one or more nationally recognized rating
agencies to the unsecured debt obligations of Borrower. The status of the
Borrower as a Qualified Borrower shall be redetermined by ABN AMRO each time an
Advance is made to Borrower. In making each such determination ABN AMRO, in its
capacity as referral agent, shall determine that ABN AMRO, in its capacity as a
commercial lender for its own account applying its normal lending standards,
would be willing to finance the purpose of such Advance on the same terms, at an
appropriate bank funding rate, as the requested Advance as a borrowing
consistent with the Borrower's existing and planned business activities.
"RATING AGENCY" means Moody's, S&P and any other rating agency which a
Conduit chooses to rate its commercial paper notes.
"RATING CRITERIA" means (i) with respect to an Amsterdam Committed
Lender, the short-term rating of such Amsterdam Committed Lender is at least A-1
from S&P and P1 from Moody's, and (ii) with respect to a Windmill Committed
Purchaser, the short-term rating of such Windmill Committed Purchaser is at
least A-1+ from S&P and P1 from Moody's.
"RATINGS" means the ratings by the Rating Agencies of a Conduit's
commercial paper notes.
"REFERENCE BANK" means ABN AMRO and any other Lender from time to time
designated by the Required Lenders as a Reference Bank.
"REPLACEMENT LIQUIDITY PROVIDER" is defined in Section 13.8(c).
"REPORTABLE EVENT" means any of the events set forth in Section 4043(c)
of ERISA or the regulations thereunder, other than any such event for which the
30day notice requirement under ERISA has been waived in regulations issued by
the PBGC.
"REQUIRED LENDERS" means, at any time when there is more than one
Committed Lender, at least two Committed Lenders having in excess of 66 2/3% of
the Commitments or, if the Commitments have been terminated, at least two
Committed Lenders then holding in excess of 66 2/3% of the then aggregate unpaid
principal amount of the Loans. If at any time there is only one Committed
Lender, then Required Lender means such Committed Lender. For purposes of this
definition, prior to the termination of the Commitments, each Subject Bank shall
be deemed to have a Commitment equal to the outstanding principal amount of its
Loans.
"REQUIREMENT OF LAW" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
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"RESPONSIBLE OFFICER" means the chief executive officer, chief financial
officer, treasurer or president of the Borrower, or any other officer having
substantially the same authority and responsibility and each other person
notified to the Agent in a writing from a Responsible Officer.
"S&P" means Standard & Poor's Ratings Group.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"SIGNIFICANT EVENT" means the occurrence of any one or more of the
following:
(a) (i) the Borrower fails to observe or perform in any
material respect any term, covenant or agreement under any Loan Document
related to the Borrower, and such failure remains unremedied for ten
(10) Business Days or (ii) (A) the Borrower fails to make any payment
under any Note or other Loan Document when due from the Borrower or
(B) any representation, warranty, certification or statement made, or
deemed to be made, by the Borrower, or pursuant to, any Loan Document
shall prove to have been incorrect in any material respect when made or
deemed made; or
(b) A Bankruptcy Event occurs with respect to the Borrower;
or
(c) there occurs a material adverse change in (i) the
creditworthiness, financial condition, business, operations or prospects
of the Borrower or (ii) the ability of the Borrower to perform its
obligations under any Loan Document; or
(d) the financial condition of the Borrower is materially
different from the most recent written projections of such financial
condition given by the Borrower to the Agent; or
(e) (i) the Borrower's senior short-term unsecured debt (if
rated by the relevant Rating Agency at the time the most recent Advance
was made to such Borrower) is not rated at least "A-2" by S&P or not
rated at least "P-2" by Moody's (or S&P or Moody's has withdrawn such
rating), (ii) the Borrower's senior long-term, unsecured debt (if rated
by the relevant Rating Agency at the time the most recent Advance was
made to Borrower) is rated less than BBB- by S&P or less than Baa3 by
Moody's (or S&P or Moody's has withdrawn such rating), or (iii) if the
Borrower had no rated debt outstanding at the time the most recent
Advance was made to the Borrower, ABN AMRO determines that the
Borrower's credit is no longer of investment grade quality; or
(f) the Borrower fails to satisfy any condition precedent to
the borrowing of a Committed Loan set forth in Section 6.2 or any "EVENT
OF DEFAULT" shall occur and be continuing under this Agreement.
"SPECIAL TRANSACTION SUBACCOUNT" means the special transaction
subaccount established for this Agreement pursuant to the applicable Conduit's
depositary agreement.
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"SUBJECT BANK" is defined in Section 4.2.
"SUBJECT BANK EVENT" is defined in Section 4.2.
"SUBJECT BANK LOAN" means any Loan made by a Subject Bank pursuant to
Section 4.2.
"SUBSIDIARY" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business entity
of which more than 50% of the voting stock, membership interests or other equity
interests (in the case of Persons other than corporations), is owned or
controlled directly or indirectly by the Person, or one or more of the
Subsidiaries of the Person, or a combination thereof. Unless the context
otherwise clearly requires, references herein to a "Subsidiary" refer to a
Subsidiary of the Borrower.
"SURETY INSTRUMENTS" means all letters of credit (other than commercial
letters of credit), bankers' acceptances, bank guaranties, shipside bonds,
surety bonds and similar instruments.
"SWAP CONTRACT" means any agreement, whether or not in writing, relating
to any transaction that is a rate swap, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap or option, bond,
note or bill option, interest rate option, forward foreign exchange transaction,
cap, collar or floor transaction, currency swap, crosscurrency rate swap,
swaption, currency option or any other, similar transaction (including any
option to enter into any of the foregoing) or any combination of the foregoing,
and, unless the context otherwise clearly requires, any master agreement
relating to or governing any or all of the foregoing.
"SWAP PROVIDER" means any Lender, or any Affiliate of any Lender, that
is at the time of determination party to a Swap Contract with the Borrower or
any Subsidiary.
"SWAP TERMINATION VALUE" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a) the amount(s) determined as the
marktomarket value(s) for such Swap Contracts, as reasonably determined by the
Borrower based upon one or more midmarket or other readily available quotations
provided by any recognized dealer in such Swap Contracts (which may include any
Lender).
"TAXES" means any and all present or future taxes, levies, assessments,
imposts, duties, deductions, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of each Lender and the
Agent, respectively, franchise taxes or taxes imposed on or measured by its
gross income, net income or capital gains by the jurisdiction (or any political
subdivision thereof) under the laws of which such Lender or the Agent, as the
case may be, is organized or is otherwise doing business or maintains a lending
office or other permanent establishment.
"TELERATE PAGE 3750" means the display designated as "Page 3750" on the
Telerate
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Service (or other such page as may replace Page 3750 on that service or such
other service as may be nominated by the British Bankers' Association as the
information vendor for the purpose of displaying British Bankers' Association
Interest Settlement Rates for U.S. Dollar deposits).
"TRANSFER LOAN" means a Loan deemed made by a Committed Lender to the
Borrower (through the purchase of an Interest in an Advance) under Article III.
"TRANSFER SUPPLEMENT" is defined in Section 13.8(b).
"TYPE" has the meaning specified in the definition of "Committed Loan."
"UNFUNDED PENSION LIABILITY" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Plan's assets, determined in accordance with the assumptions used for funding
the Pension Plan pursuant to Section 412 of the Code for the applicable plan
year.
"UNITED STATES" and "U.S." each means the United States of America.
"UNUSED COMMITMENT" is defined in Section 4.1.
"WHOLLY-OWNED SUBSIDIARY" means any corporation in which (other than
directors' qualifying shares, shares or other ownership interests issued to
satisfy local ownership requirements and shares or other ownership interests
issued for similar legal purposes) 100% of the capital stock of each class
having ordinary voting power, and 100% of the capital stock of every other
class, in each case, at the time as of which any determination is being made, is
owned, beneficially and of record, by the Borrower, or by one or more of the
other WhollyOwned Subsidiaries, or both.
"WINDMILL" is defined in the preamble.
"WINDMILL AGGREGATE COMMITMENTS" means, as of any date for all Windmill
Committed Lenders, the Commitments of all Windmill Committed Lenders.
"WINDMILL COMMITTED LENDERS" means the Windmill Enhancer and each
Liquidity Provider having a short-term debt rating of A-1+ from S&P and P-1 from
Moody's.
"WINDMILL COMMITMENTS" means, for each Windmill Committed Lender
(i) (a) its Commitment multiplied by (b) the Matured Value of all Advances held
by Windmill as of such date divided by (ii) the Windmill Aggregate Commitments.
"WINDMILL ENHANCER" means ABN AMRO as issuer of the Program LOC for
Windmill.
"WINDMILL PERMITTED INVESTMENTS" means (a) evidences of indebtedness,
maturing within thirty (30) days after the date of purchase thereof, issued by,
or guaranteed by the full faith and credit of, the federal government of the
USA, (b) repurchase agreements with banking institutions or broker-dealers
registered under the Securities Exchange Act of 1934 the short-term
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unsecured obligations of which are rated at least "A-1+" (or the equivalent)
by S&P and at least "P-1" (or the equivalent) by Moody's which are fully
secured by obligations of the kind specified in clause (a), (c) money market
funds (i) rated not lower than the highest rating category from Moody's and
"AAA m" or "AAAm-g," from S&P or (ii) which are otherwise acceptable to the
Rating Agencies or (d) commercial paper issued by any corporation
incorporated under the laws of the USA and rated at least "A-1+" (or the
equivalent) by S&P and at least "P-1" (or the equivalent) by Moody's.
"WINDMILL RATABLE SHARE" means, as of any date, for each Windmill
Committed Lender, such Lender's Windmill Commitment divided by the lesser of the
Windmill Aggregate Commitment and the Matured Value of all Advances held by
Windmill as of such date. If, however, on the date any payment for any Put is
to be made by the Windmill Committed Lenders, the sum of the outstanding
Windmill Interest of the Windmill Enhancer plus Program Unreimbursed Draw Amount
of the Windmill Enhancer is in excess of its Windmill Ratable Share of the
outstanding Windmill Interest and Program Unreimbursed Draw Amount of all
Windmill Committed Lenders, then for purposes of such Put the Windmill Ratable
Share of each Windmill Committed Lender shall be replaced with a percentage
equal for each Windmill Committed Lender to (a) its Windmill Commitment minus
its Windmill Interest acquired from Windmill and, in the case of the Windmill
Enhancer, its Program Unreimbursed Draw Amount before such Put (its "EXISTING
LOAN AMOUNT") divided by (b) the Windmill Aggregate Commitment minus the sum of
the Existing Loan Amounts of all Windmill Committed Lenders.
SECTION 1.2. OTHER INTERPRETIVE PROVISIONS. (a) The meanings of
defined terms are equally applicable to the singular and plural forms of the
defined terms.
(b) The words "hereof," "herein," "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and clause, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
(iii) In the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including"; the
words "to" and "until" each mean "to but excluding," and the word "through"
means "to and including."
(iv) The term "property" includes any kind of property or asset,
real, personal or mixed, tangible or intangible.
(c) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document, and (ii) references to any
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statute or regulation are to be construed as including all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or
interpreting the statute or regulation.
(d) The captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement.
(e) This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters. All
such limitations, tests and measurements are cumulative and shall each be
performed in accordance with their terms. Unless otherwise expressly provided,
any reference to any action of the Agent or the Lenders by way of consent,
approval or waiver shall be deemed modified by the phrase "in its/their sole
discretion."
(f) This Agreement and the other Loan Documents are the result of
negotiations among, and have been reviewed by, counsel to the Agent, the
Borrower and the other parties hereto, and are the products of all parties.
Accordingly, they shall not be construed against the Lenders, or the Agent
merely because of the Agent's, or the Lenders' involvement in their preparation.
SECTION 1.3. ACCOUNTING PRINCIPLES. (a) Unless the context otherwise
clearly requires, all accounting terms not expressly defined herein shall be
construed, and all financial computations required under this Agreement shall be
made, in accordance with GAAP, consistently applied.
(b) In the event that GAAP changes during the term of this Agreement such
that the covenants contained in Article X would then be calculated in a
different manner or with different components or with components which are
calculated differently, (i) the parties hereto agree to enter into negotiations
with respect to amendments to this Agreement to conform those covenants as
criteria for evaluating the Borrower's and its Subsidiaries' financial condition
to substantially the same criteria as were effective prior to such change in
GAAP, and (ii) the Borrower shall be deemed to be in compliance with the
affected covenants contained in Article X during the 90 days following any
change in GAAP if and to the extent that the Borrower would have been in
compliance herewith under GAAP as in effect immediately before such change;
PROVIDED, HOWEVER, that this paragraph shall not be deemed to require the
Borrower, the Agent or the Lenders to agree to modify any provision of this
Agreement or any of the other Loan Documents to reflect any such change to GAAP
and, if, after such 90 days, the parties, in their sole discretion, fail to
reach agreement on such modifications, the terms of this Agreement will remain
unchanged and the compliance by the Borrower with the covenants contained in
Article X will be calculated in accordance with GAAP as in effect immediately
before such change.
(c) References herein to "fiscal year" and "fiscal quarter" refer to such
fiscal periods of the Borrower.
ARTICLE II
UNCOMMITTED CONDUIT FACILITY
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SECTION 2.1. CONDUIT FACILITIES. Subject to the terms and conditions set
forth herein, each Conduit may, at its sole discretion make Advances to the
Borrower. The principal amount of Advances made by the Conduits, in the
aggregate, to the Borrower shall not exceed $333,300,000 (the "MAXIMUM PRINCIPAL
AMOUNT") MINUS the aggregate outstanding principal amount of Loans. In addition,
no Conduit shall make an Advance if the sum of (a) the Matured Value of all
outstanding Advances and (b) the aggregate principal amount of all outstanding
Loans would thereby exceed the Aggregate Commitment, and Windmill will not make
an Advance if the Matured Value of all outstanding Advances held by Windmill
would thereby exceed the Maximum Windmill Commitment. At no time will any
Conduit have any obligation to make an Advance hereunder. Each Advance held by
a Conduit shall be evidenced by a single promissory note of the Borrower in the
form attached hereto as Exhibit A (the "CONDUIT NOTE") payable to the order of
the Agent for the benefit of the applicable Conduit and the Committed Lenders.
SECTION 2.2. MANNER OF BORROWING. (a) In order to request an Advance
hereunder, the Borrower must provide to the Agent an irrevocable written request
(including by telecopier or other facsimile communication) substantially in the
form of Exhibit B, by 10:00 a.m. (Chicago time) three Business Days before the
requested Borrowing Date (which must be a Business Day), specifying the
requested amount (the "BORROWING AMOUNT") of such Advance, which must be in a
minimum amount of $1,000,000 and multiples thereof and any requested Interest
Period for such Advance. If (i) the Agent determines that the Borrower is a
Qualified Borrower at the time such Advance is made, (ii) no Significant Event
has occurred and is continuing, and (iii) a Conduit determines, in its sole
discretion, to make the requested Advance, such Conduit shall transfer to the
Agent on the requested Borrowing Date the amount of such Advance it is willing
to make. The Agent shall transfer to the Borrower the proceeds of any Advance
delivered by the applicable Conduit as described above. Following each such
funding of an Advance, the Agent shall deliver to the Borrower a confirmation of
the principal amount, interest rate and Interest Period of such Advance.
Whenever the Borrower requests an Advance, the Agent shall determine whether
Windmill or Amsterdam shall make such Advance or whether Windmill and Amsterdam
shall each make an Advance, with the aggregate amount of such Advances not to
exceed the requested Borrowing Amount. Each request for an Advance hereunder
shall constitute a representation or warranty by the Borrower hereunder, as of
the date of such request, that (i) no Significant Event shall exist or result
from such Advance and (ii) that the conditions set forth in Sections 6.2(b) and
(c) would be satisfied if such Advance were a Committed Loan.
(b) The Borrower hereby authorizes the Agent to rely upon the telephone or
written instructions of any person the Agent in good faith believes is a
Responsible Officer, and in all cases the Borrower shall be bound thereby in the
same manner as if such person were authorized or such signature were genuine.
SECTION 2.3. INTEREST RATES AND PAYMENTS. (a) Each Advance from a
Conduit shall accrue interest at the CP Rate applicable to the Interest Period
for such Advance. In its request for an Advance the Borrower may request the
duration of the Interest Period for such Advance, but the Agent shall establish
each Interest Period for an Advance to correspond to the maturity of the
commercial paper issued to fund such Advance. In no event may any Interest
Period extend beyond the Conduit Termination Date.
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(b) The Borrower shall pay interest on each Advance on each Interest
Payment Date for such Advance.
SECTION 2.4. MATURITY DATES; PREPAYMENTS. The principal due on each
Advance made hereunder shall be due and payable on the last day of its Interest
Period (its "MATURITY DATE"). No Advance hereunder may be prepaid. In no event
will an Advance from a Conduit be considered repaid unless and until the
applicable Conduit has been paid all interest scheduled to accrue on such
Advance to the end of its Interest Period.
Section 2.5. THE PARTICIPATING INTERESTS. Each Committed Lender, by its
acceptance hereof, severally agrees to purchase from each other Committed Lender
that has made a Transfer Loan, and each Committed Lender making such Transfer
Loans hereby agrees to sell to each such Committed Lender (a "PARTICIPATING
BANK"), an undivided percentage participating interest in each Transfer Loan
made by Committed Lenders to the extent required hereunder. Such participating
interests shall be purchased and sold to the extent necessary to cause the
amount of each Participating Bank's participating interest in the Transfer Loans
relating to a single Advance to be an amount such that each Committed Lender
owns after the sale of such participating interests its Percentage of such
Transfer Loans. Upon any purchase of an Advance by the Committed Lenders
pursuant to Section 3.1, each Participating Bank shall, not later than the
Business Day it receives a request therefor from the Agent (given directly or
through the Agent) to such effect, if such request is received before 1:00 P.M.
(New York City time), or not later than the following Business Day, if such
request is received after such time, pay to the Agent for the account of the
Committed Lenders making such Transfer Loans (ratably, in accordance with the
amount of such Transfer Loans made by such Committed Lenders) an amount equal to
its Percentage of such unpaid or recaptured Transfer Loans less any Purchase
Price already paid by such Committed Lender in connection with such Advance
together with interest on such amount accrued from the date the payment creating
such Transfer Loan was made by the Committed Lenders to the date of such payment
by such Participating Bank at a rate per annum equal to (i) from the date the
related payment was made by the Committed Lenders making such Transfer Loans to
the date two (2) Business Days after payment by such Participating Bank is due
hereunder, the Federal Funds Rate for each such day and (ii) from the date two
(2) Business Days after such payment is due from such Participating Bank to the
date such payment is made by such Participating Bank, the Base Rate in effect
for each such day. Each such Participating Bank shall thereafter be entitled to
receive its Percentage of each payment received in respect of the relevant
Transfer Loans and of interest paid thereon, with each Committed Lender making
such Transfer Loans retaining its Percentage.
The several obligations of the Participating Banks under this Section 2.5
to each Committed Lender making such Transfer Loans shall be absolute,
irrevocable and unconditional under any and all circumstances whatsoever and
shall not be subject to any set-off, counterclaim or defense to payment which
any Participating Bank may have or have had against the Borrower, any Committed
Lender or any other Person whatsoever. Without limiting the generality of the
foregoing, such obligations shall not be affected by any Default or Event of
Default or by any reduction or termination of any Commitment of any Committed
Lender that is not a Subject Bank at the time such Transfer Loans are due and
payable hereunder. The Agent shall be entitled to offset amounts received for
the account of Committed Lenders under this Section against
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unpaid amounts due from Committed Lenders hereunder (whether as fundings of
participations, indemnities or otherwise) but shall not be entitled to offset
against amounts owed to the Agent by any Committed Lender arising outside
this Agreement.
ARTICLE III
SALES FROM CONDUITS; ALLOCATIONS
SECTION 3.1. REQUIRED PURCHASES FROM CONDUITS. (a) From time to time a
Conduit may, and on the Conduit Termination Date or by the Business Day
following the date on which the Agent and the Conduits learn of a Significant
Event affecting the Borrower which is continuing, the Conduits shall sell any
percentage designated by each Conduit of its Interest in the Advances to the
Amsterdam Committed Lenders or Windmill Committed Lenders, as appropriate
(each, a "PUT"); PROVIDED, HOWEVER, that, if the Put occurs due to the Conduit
Termination Date or a Significant Event the designated percentage shall be one
hundred percent (100%) of the Conduit's Interest in all Advances to the Borrower
or such lesser percentage as is necessary to obtain the maximum available
Purchase Amounts for the applicable Conduit Interest in the Advances to the
Borrower from the applicable Committed Lenders. Immediately upon notice from a
Conduit to the Agent of a Put, the Agent shall deliver to the applicable
Committed Lenders a notification of assignment in the form of Exhibit C (with
such changes therein as are acceptable to the Agent) and each such Committed
Lender shall purchase from the applicable Conduit for its Purchase Amount(s) its
Windmill Ratable Share or Amsterdam Ratable Share, as the case may be, of the
Conduit Interest designated by such Conduit. Until used to pay CP Notes issued
by the applicable Conduit to fund its interest in the applicable Advances, the
Purchase Amount paid by the Committed Lenders in connection with any Put shall
be invested in Windmill Permitted Investments and Amsterdam Permitted
Investments, as applicable. All earnings on such Windmill Permitted Investments
and Amsterdam Permitted Investments shall be for the account of, and shall be
promptly remitted to, the Borrower. Such Interest in an Advance acquired by a
Committed Lender shall be the principal amount of a Base Rate Transfer Loan owed
to such Lender evidenced by the Conduit Note held by such Lender with an
Interest Period equal to the remaining term of the Advance in which such
Committed Lender acquired an Interest from the applicable Conduit. Each Base
Rate Transfer Loan shall be due and payable at the end of its Interest Period,
but may, subject to the terms and conditions set forth herein, be refunded with
a Committed Loan or may be prepaid at any time. Any Advance (or portion
thereof) acquired by the Committed Lenders from a Conduit, together with any
interest that accrues thereon, is owed solely to such Committed Lenders and such
Conduit's interest in such Advance (or portion thereof) so transferred is fully
discharged through such transfer.
(b) Any sale of any Conduit Interest from a Conduit to any Committed
Lender shall be without recourse, representation or warranty except for the
representation and warranty that such Interest is being sold by such Conduit
free and clear of any Adverse Claim created or granted by such Conduit.
(c) Each Committed Lender shall transfer to the Agent's Payment Office, by
not later than 1:00 p.m. (Chicago time) on the date such funds are requested, an
amount equal to such
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Committed Lender's Purchase Amount for each Advance in which it is acquiring
an Interest; PROVIDED, HOWEVER, that the applicable Enhancer shall be
entitled to exchange (which exchange may occur after all draws have been made
on the applicable Program LOC in connection with the Put) up to an equal
Dollar amount of the Program Unreimbursed Draw Amount at the time of such
exchange for all or part of such Enhancer's Purchase Amount. If, on the last
day of an Interest Period for an Advance, the Committed Lenders would not be
obligated to fund a Loan to the Borrower in a principal amount at least equal
to the Matured Value of the Advance maturing on such date, the Committed
Lenders will make available to the Agent the amount owed on such Advance that
day in payment of the Purchase Amount for a Put. Any payment received from
the Borrower on such date in repayment of such Advance shall be treated as a
payment of the Interest held by the Committed Lenders in such Advance. In
addition, so long as the Committed Lenders are obligated to make Loans to the
Borrower on the last day of an Interest Period for an Advance, if the
Borrower is no longer a Qualified Borrower or the applicable Conduit is
otherwise not making an Advance to refund its outstanding Advance on such
date, the Committed Lenders shall make a Loan to the Borrower by paying a
Purchase Amount to the Conduit in the amount of the Matured Value of its
Advance, and any repayment of such outstanding Advance by the Borrower shall
be treated as a payment to the Committed Lenders. To the extent the Borrower
does not repay the Matured Value of such Advance on such date, the unpaid
amount shall be outstanding as a Loan from the Committed Lenders. In no
event shall any payment made to a Conduit on the last day of an Interest
Period for an Advance be treated as a repayment by the Borrower of such
Advance held by the Conduit unless (a) the Borrower has chosen to repay such
Advance and not requested that it be refunded either by a new Advance or by a
Loan and (b) the Borrower remains a Qualified Borrower and otherwise fulfills
all conditions to the obligation of the Committed Lenders to make Loans equal
to at least the Matured Value of such Advance on the last day of its Interest
Period. The Agent shall maintain records showing the Interests held by each
Conduit and by the Committed Lenders in accordance with the provisions of
this Section 3.1, which records shall be conclusive for all purposes in
determining the Interests held in each Advance.
(d) The aggregate amount paid or exchanged by each Committed Lender
pursuant to Sections 3.1(b) and 3.1(c) for any purchase of an Interest in an
Advance shall be allocated among clauses (a) and (b) of the definition of
Purchase Amount proportionately in accordance with the amount of each such
component in such clauses.
(e) The proceeds from each Put received by a Conduit shall be transferred
into its Special Transaction Subaccount and used solely to pay that portion of
the outstanding CP Notes of the applicable Conduit issued to fund or maintain
the Conduit Interest in the Advance(s) subject to such Put.
(f) The obligation of each Committed Lender to make any purchase from a
Conduit pursuant to this Section 3.1 shall be the several and not joint
obligation of each Committed Lender and shall be absolute and unconditional;
PROVIDED, HOWEVER, that no Committed Lender shall have an obligation to make any
such purchase if at the time thereof (i) the applicable Conduit shall have
voluntarily commenced any proceeding or filed any petition under any bankruptcy,
insolvency or similar law seeking the dissolution, liquidation or reorganization
of such Conduit or (ii) involuntary proceedings or an involuntary petition shall
have been
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commenced or filed against such Conduit under any bankruptcy, insolvency or
similar law seeking the dissolution, liquidation or reorganization of such
Conduit and such proceeding or petition shall not have been dismissed or
stayed for a period of thirty (30) days, or any of the actions sought in such
proceeding or petition (including the entry of an order for relief against,
or the appointment of a receiver, trustee, custodian or other similar
official for, such Conduit or for any substantial part of such Conduit's
property) shall occur.
ARTICLE IV
THE COMMITTED CREDITS
SECTION 4.1. AMOUNTS AND TERMS OF COMMITMENTS. Each Committed Lender
severally agrees, on the terms and conditions set forth herein, to make Loans to
the Borrower from time to time on any Business Day during the period from the
Closing Date to the Liquidity Termination Date, in an aggregate outstanding
amount not to exceed at any time the amount set forth on Schedule 4.1 (such
amount as the same may be reduced under Section 4.6 or as a result of one or
more assignments under Section 13.8, the Lender's "COMMITMENT"); PROVIDED,
HOWEVER, that, any Committed Borrowing shall not exceed the Aggregate Unused
Commitment; and FURTHER PROVIDED, that the aggregate principal amount of all
Committed Loans made by a Lender on any day shall not at any time exceed such
Lender's Commitment minus such Lender's Percentage of the sum of (i) the
outstanding principal amount of all Loans (other than Subject Bank Loans) and
(ii) the Matured Value of all outstanding Advances (the Committed Lender's
"UNUSED COMMITMENT"). Within the limits of each Lender's Unused Commitment, and
subject to the other terms and conditions hereof, the Borrower may borrow under
this Section 4.1, prepay under Section 4.7 and, prior to the Liquidity
Termination Date, reborrow under this Section 4.1.
SECTION 4.2 SUBJECT BANK LOANS. In the event that (i) a decline in
or withdrawal of the short-term rating of a Liquidity Provider causes the
Rating Criteria to cease to be satisfied or (ii) a Liquidity Provider is a
Non-extending Liquidity Provider under Section 4.15 (any such event being a
"SUBJECT BANK EVENT" and any such Liquidity Provider, a "SUBJECT BANK"), and
such Liquidity Provider is not replaced pursuant to Section 13.8 within 25
days of such Subject Bank Event, then the Borrower may, by delivery of a
Notice of Borrowing to the Agent, require such Subject Bank to make a Subject
Bank Loan in an amount equal to the excess of such Subject Bank's Commitment
over the then outstanding aggregate principal balance of such Subject Bank's
Loans.
SECTION 4.3. LOAN ACCOUNTS. (a) The Committed Loans made by each Lender
shall be evidenced by one or more accounts or records maintained by such Lender
in the ordinary course of business. The accounts or records maintained by each
Lender shall be conclusive absent manifest error of the amount of the Committed
Loans made by the Committed Lenders to the Borrower for the account of the
Borrower, and the interest and payments thereon. Any failure so to record or
any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any amount actually owing with
respect to the Committed Loans.
(b) Upon the request of any Committed Lender made through the Agent, the
Committed
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Loans made by such Committed Lender may be evidenced by one or more notes in
the form of Exhibit H ("COMMITTED LOAN NOTES") instead of or in addition to
loan accounts. Each such Committed Lender may endorse on the schedules
annexed to its Note(s) the date, amount and maturity of each Committed Loan
made by it and the amount of each payment of principal made by the Borrower
with respect thereto. Each such Committed Lender is irrevocably authorized
by the Borrower to endorse its Note(s) and each Committed Lender's record
shall be conclusive absent manifest error; PROVIDED, HOWEVER, that the
failure of a Committed Lender to make, or an error in making, a notation
thereon with respect to any Committed Loan shall not limit or otherwise
affect the actual obligations of the Borrower hereunder or under any such
Note to such Committed Lender.
SECTION 4.4. PROCEDURE FOR COMMITTED BORROWING. (a) Each Committed
Borrowing shall be made upon the Borrower's irrevocable telephonic notice,
confirmed in writing, delivered to the Agent in the form of a Notice of
Borrowing (which notice must be received by the Agent prior to 11:30 a.m. New
York City time) (i) three Business Days prior to the requested Borrowing Date,
in the case of LIBOR Rate Committed Loans; and (ii) on the requested Borrowing
Date, in the case of Base Rate Committed Loans, specifying:
(A) the amount of the Committed Borrowing, which shall be (i) in the
case of Base Rate Committed Loans, in an aggregate minimum amount of
$1,000,000 or an integral multiple of $100,000 in excess thereof (or in the
case of a Subject Bank, if less, the amount of such Subject Bank's
Commitment less the then outstanding principal balance of such Subject
Bank's Loans) and (ii) in the case of LIBOR Rate Committed Loans, in an
aggregate minimum amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof;
(B) the requested Borrowing Date, which shall be a Business Day;
(C) the Type of Loans comprising the Committed Borrowing; and
(D) if such Committed Borrowing is to be a LIBOR Rate Committed Loan,
the duration of the Interest Period applicable to such Committed Loan
included in such notice. If the Notice of Borrowing fails to specify the
duration of the Interest Period for any such Committed Borrowing, such
Interest Period shall be one month.
(b) The Agent will promptly notify each Lender of its receipt of any
Notice of Borrowing and of the amount of such Lender's Pro Rata Share of that
Committed Borrowing.
(c) Each Lender will make the amount of its Pro Rata Share of each
Committed Borrowing available to the Agent for the account of the Borrower at
the Agent's Payment Office by 1:00 p.m. New York City time (in the case of a
LIBOR Rate Committed Loan) or 2:30 p.m. New York City time (in the case of a
Base Rate Committed Loan) on the Borrowing Date requested by the Borrower in
funds immediately available to the Agent. The proceeds of all such Committed
Loans will then be made available to the Borrower by the Agent by wire transfer
by 4:00 p.m. New York City time on the Borrowing Date in accordance with written
instructions provided to the Agent by the Borrower of like funds in United
States dollars as received by the
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Agent.
(d) After giving effect to any Committed Borrowing, unless the Agent shall
otherwise consent, there may not be more than ten different Interest Periods in
effect in respect of all Committed Loans then outstanding.
SECTION 4.5. CONVERSION AND CONTINUATION ELECTIONS FOR LOANS. (a) The
Borrower may, upon irrevocable written notice to the Agent in accordance with
Section 4.5(b):
(i) with respect to any Base Rate Committed Loans, elect, as of any
Business Day, to convert any such Base Rate Committed Loans, or any part
thereof, in an amount not less than $5,000,000 or that is in an integral
multiple of $1,000,000 in excess thereof into LIBOR Rate Committed Loans;
or
(ii) with respect to any LIBOR Rate Committed Loans, elect, as of the
last day of the applicable Interest Period, to (x) continue any LIBOR Rate
Committed Loans having Interest Periods expiring on such day, or any part
thereof, in an amount not less than $5,000,000 or that is in an integral
multiple of $1,000,000 in excess thereof or (y) convert any LIBOR Rate
Committed Loans having Interest Periods expiring on such date, or any part
thereof, in an amount not less than $1,000,000 or that is an integral
multiple of $100,000 in excess thereof into Base Rate Committed Loans.
(b) The Borrower shall deliver a Notice of Conversion/Continuation to be
received by the Agent not later than 11:30 a.m. (New York City time) at least
(i) three Business Days in advance of the Conversion/Continuation Date, if the
Committed Loans are to be converted into or continued as LIBOR Rate Committed
Loans; and (ii) on the Business Day of the Conversion/Continuation Date, if the
Loans are to be converted into Base Rate Committed Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Committed Loans to be converted or
continued;
(C) the Type of Committed Loans resulting from the proposed
conversion or continuation; and
(D) in the case of continuations of or conversions into LIBOR Rate
Committed Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period, the Borrower has failed
to select timely a new Interest Period applicable to LIBOR Rate Committed Loans,
or if any Event of Default then exists, the Borrower shall be deemed to have
elected to convert the relevant LIBOR Rate Committed Loans into Base Rate
Committed Loans effective as of the expiration date of such Interest Period.
(d) The Agent will promptly notify each Committed Lender of its receipt of
a Notice of
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Conversion/Continuation, or, if no timely notice is provided by the Borrower,
the Agent will promptly notify each Committed Lender of the details of any
automatic conversion. All conversions and continuations shall be made
ratably according to the respective outstanding principal amounts of the
Committed Loans with respect to which the notice was given held by each
Committed Lender.
(e) Unless the Required Lenders otherwise consent, during the existence of
an Event of Default, the Borrower may not elect to have a Committed Loan
converted into or continued as a LIBOR Rate Committed Loan.
(f) After giving effect to any conversion or continuation of Committed
Loans, unless the Agent shall otherwise consent, there may not be more than ten
different Interest Periods in effect in respect of all Committed Loans then
outstanding.
SECTION 4.6. VOLUNTARY TERMINATION OR REDUCTION OF COMMITMENTS. The
Borrower may, upon not less than three Business Days' prior notice to the Agent,
terminate the Commitments, or permanently reduce the Commitments by an aggregate
minimum amount of $5,000,000 or any multiple of $1,000,000 in excess thereof;
unless after giving effect thereto and to any prepayments of Committed Loans
made on the effective date thereof, the outstanding principal amount of all
Loans plus the Matured Value of all outstanding Advances would exceed the
Aggregate Commitment then in effect. Once reduced in accordance with this
Section, the Commitments may not be increased. Any reduction of the Aggregate
Commitment shall be applied to each Lender according to its Pro Rata Share. All
accrued commitment fees to, but not including, the effective date of any
reduction or termination of Commitments shall be paid on the next quarter end
date.
SECTION 4.7. OPTIONAL PREPAYMENTS. Subject to Section 5.4, the Borrower
may, at any time or from time to time, upon not less than three Business Days'
irrevocable notice by 11:30 a.m. New York City time (or on the same Business
Day's irrevocable notice by 1:30 p.m. New York City time in the case of Base
Rate Loans) to the Agent, ratably prepay Loans in whole or in part, in minimum
amounts of $5,000,000 or any multiple of $1,000,000 in excess thereof (in the
case of LIBOR Rate Loans) or in minimum amounts of $1,000,000 or any multiple of
$100,000 in excess thereof (in the case of Base Rate Committed Loans). Such
notice of prepayment shall specify the date and amount of such prepayment and
the Type(s) of Committed Loans to be prepaid. The Agent will promptly notify
each Committed Lender of its receipt of any such notice, and of such Committed
Lender's Pro Rata Share of such prepayment. If such notice is given by the
Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein,
together with accrued interest to each such date on the amount prepaid (in the
case of LIBOR Rate Committed Loans only) and any amounts required pursuant to
Section 5.4. If requested by the Borrower in connection with a potential
prepayment, the Agent shall promptly provide a reasonable good faith estimate of
the amounts which would be payable under Section 5.4 in connection with such
potential prepayment.
SECTION 4.8. REPAYMENT. The Borrower shall repay to the Lenders on
November 24, 2003 the aggregate principal amount of Committed Loans outstanding
on such date. Committed
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Loans repaid after the Liquidity Termination Date may not be reborrowed.
SECTION 4.9. INTEREST. (a) Each Committed Loan shall bear interest on
the outstanding principal amount thereof from the applicable Borrowing Date at a
rate per annum equal to the LIBOR Rate PLUS the Applicable Margin or the Base
Rate, as the case may be (and subject to the Borrower's right to convert to
other Types of Loans under Section 4.5).
(b) Interest on each Committed Loan shall be paid in arrears on each
Interest Payment Date. Interest shall also be paid on the date of any
prepayment of Committed Loans under Section 4.9 for the portion of the Committed
Loans so prepaid (for LIBOR Rate Committed Loans only) and upon payment
(including prepayment) in full thereof and, during the existence of any Event of
Default, interest shall be paid on demand of the Agent at the request or with
the consent of the Required Lenders.
(c) Notwithstanding clause (a) of this Section, while any Event of Default
exists or after acceleration, the Borrower shall pay interest (after as well as
before entry of judgment thereon to the extent permitted by law) on the
principal amount of all outstanding Obligations to the Committed Lenders, at a
rate per annum which is determined by adding 2% per annum to the Applicable
Margin then in effect for Loans with respect to the Liquidity Providers and 2%
per annum to the Applicable Margin then in effect for Loans with respect to the
Enhancer and, in the case of Obligations not subject to an Applicable Margin, at
a rate per annum equal to the Base Rate plus 2%; PROVIDED, HOWEVER, that, on and
after the expiration of any Interest Period applicable to any LIBOR Rate
Committed Loan outstanding on the date of occurrence of such Event of Default or
acceleration, the principal amount of such Loan shall, during the continuation
of such Event of Default or after acceleration, bear interest at a rate per
annum equal to the Base Rate plus 2% per annum for loans with respect to the
Liquidity Provider and 2% per annum with respect to Loans of the Enhancer.
(d) Anything herein to the contrary notwithstanding, the obligations of
the Borrower to any Lender hereunder shall be subject to the limitation that
payments of interest shall not be required for any period for which interest is
computed hereunder, to the extent (but only to the extent) that contracting for
or receiving such payment by such Lender would be contrary to the provisions of
any law applicable to such Lender limiting the highest rate of interest that may
be lawfully contracted for, charged or received by such Lender, and in such
event the Borrower shall pay such Lender interest at the highest rate permitted
by applicable law.
SECTION 4.10. FEES.
(a) FEE LETTER. The Borrower shall pay the fees to the Agent and
Enhancer, as required by the letter agreement between the Borrower and the Agent
dated November 24, 1998 (such letter agreement referred to as the "FEE LETTER").
(b) COMMITMENT FEES. The Borrower shall pay to the Agent for the account
of each Liquidity Provider a commitment fee on each Liquidity Provider's average
daily Conduit Portion multiplied by the average daily Unused Commitment of such
Liquidity Provider, computed on a quarterly basis in arrears on the last
Business Day of each calendar quarter, at the rate set forth in
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the definition of Applicable Margin for the Conduit Commitment Fee. The
Borrower shall pay to the Agent for the account of each Liquidity Provider a
commitment fee on each Liquidity Provider's average daily Loan Portion
multiplied by the average daily Unused Commitment of such Liquidity Provider,
computed on a quarterly basis in arrears on the last Business Day of each
calendar quarter, at the rate set forth in the definition of Applicable
Margin for the Loan Commitment Fee. The Borrower shall pay to the Agent for
the account of the Liquidity Providers a program fee on the sum of such
Liquidity Providers' Amsterdam Ratable Share and Windmill Ratable Share of
the average daily outstanding Advances, computed on a quarterly basis in
arrears on the last Business Day of each calendar quarter as calculated by
the Agent, at the rate set forth in the definition of Applicable Margin for
Program Fees. Such fees shall accrue from the Closing Date to the Liquidity
Termination Date and shall be due and payable quarterly in arrears on the
last Business Day of each calendar quarter through the Liquidity Termination
Date, commencing with the calendar quarter ending December 31, 1998 with the
final payment to be made on the Liquidity Termination Date. The fees
provided in this clause shall accrue at all times after the abovementioned
commencement date, including at any time during which one or more conditions
in Article VI are not met.
SECTION 4.11. COMPUTATION OF FEES AND INTEREST. (a) All computations
of interest for Base Rate Loans when the Base Rate is determined by ABN
AMRO's "prime lending rate" shall be made on the basis of a year of 365 or
366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day
year and actual days elapsed (which results in more interest being paid than
if computed on the basis of a 365- or 366-day year). Interest and fees shall
accrue during each period during which interest or such fees are computed
from the first day thereof to the last day thereof.
(b) Each determination of an interest rate by the Agent shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error.
(c) If any Reference Bank's Commitment terminates (other than on
termination of all the Commitments), or for any reason whatsoever the Reference
Bank ceases to be a Lender hereunder, that Reference Bank shall thereupon cease
to be a Reference Bank, and the LIBOR Rate shall be determined on the basis of
the rates as notified by the remaining Reference Banks.
(d) Each Reference Bank shall use its best efforts to finish quotations of
rates to the Agent as contemplated hereby. If any of the Reference Banks fails
to supply such rates to the Agent upon its request, the rate of interest shall
be determined on the basis of the quotations of the remaining Reference Bank(s).
SECTION 4.12. PAYMENTS BY THE BORROWER. (a) All payments to be made by
the Borrower shall be made without setoff, recoupment or counterclaim. Except
as otherwise expressly provided herein, all payments by the Borrower shall be
made to the Agent for the account of the Lenders at the Agent's Payment Office,
and shall be made in dollars and in immediately available funds, no later than
11:00 a.m. (New York City time) on the date specified herein. Any payment
received by the Agent later than 11:00 a.m. (New York City time) shall be deemed
to have been received on the following Business Day and any applicable interest
or fee shall continue to accrue.
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(b) Subject to the provisions set forth in the definition of "INTEREST
PERIOD" herein, whenever any payment is due on a day other than a Business Day,
such payment shall be made on the following Business Day, and such extension of
time shall in such case be included in the computation of interest or fees, as
the case may be.
(c) Unless the Agent receives notice from the Borrower prior to the date
on which any payment is due to the Lenders that the Borrower will not make such
payment in full as and when required, the Agent may assume that the Borrower has
made such payment in full to the Agent on such date in immediately available
funds and the Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent the Borrower has not made
such payment in full to the Agent, each Lender shall repay to the Agent on
demand such amount distributed to such Lender, together with interest thereon at
the Federal Funds Rate for each day from the date such amount is distributed to
such Lender until the date repaid.
SECTION 4.13. ASSUMED PAYMENTS. Unless the Agent shall have received
notice from the applicable Committed Lender before the date of any Put or of any
Committed Loan that such Lender will not make available to the Agent the amount
it is scheduled to remit as part of such Put or Committed Loan |
