<PAGE>
===============================================================================
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
For the quarterly period ended June 30, 1997
Commission File Number 1-7850
SOUTHWEST GAS CORPORATION
(Exact name of registrant as specified in its charter)
California 88-0085720
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5241 Spring Mountain Road
Post Office Box 98510
Las Vegas, Nevada 89193-8510
(Address of principal executive offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (702) 876-7237
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
----- -----
Indicate the number of shares outstanding of each of the issuer's classes of
common stock as of the latest practicable date.
Common Stock, $1 Par Value, 27,128,030 shares as of August 4, 1997
===============================================================================
1<PAGE>
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PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
<TABLE>
SOUTHWEST GAS CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Thousands of dollars, except par value)
<CAPTION>
JUNE 30, DECEMBER 31,
1997 1996
------------ ------------
ASSETS (Unaudited)
<S> <C> <C>
Utility plant
Gas plant $ 1,813,974 $ 1,732,405
Less: accumulated depreciation (531,640) (505,984)
Acquisition adjustments 4,458 5,866
Construction work in progress 32,985 46,170
------------ ------------
Net utility plant 1,319,777 1,278,457
------------ ------------
Other property and investments 71,039 71,245
------------ ------------
Current assets
Cash and cash equivalents 6,142 8,280
Accounts receivable, net of allowances 48,561 69,000
Accrued utility revenue 20,541 46,500
Income tax benefit 23,350 --
Deferred tax benefit -- 8,009
Deferred purchased gas costs 57,476 --
Prepaids and other current assets 27,592 28,029
------------ ------------
Total current assets 183,662 159,818
------------ ------------
Deferred charges and other assets 50,484 50,749
------------ ------------
Total assets $ 1,624,962 $ 1,560,269
============ ============
CAPITALIZATION AND LIABILITIES
Capitalization
Common stock, $1 par (authorized - 45,000,000 shares; issued
and outstanding - 27,089,363 and 26,732,688 shares) $ 28,719 $ 28,363
Additional paid-in capital 354,942 349,132
Retained earnings (accumulated deficit) (152) 2,121
------------ ------------
Total common equity 383,509 379,616
Redeemable preferred securities of Southwest Gas Capital I 60,000 60,000
Long-term debt, less current maturities 754,442 665,221
------------ ------------
Total capitalization 1,197,951 1,104,837
------------ ------------
Current liabilities
Current maturities of long-term debt 6,347 6,675
Short-term debt 88,420 121,000
Accounts payable 29,538 49,951
Customer deposits 21,693 21,133
Accrued taxes 18,932 9,977
Accrued interest 10,308 9,800
Deferred taxes 15,362 --
Deferred purchased gas costs -- 9,432
Other current liabilities 37,143 33,369
------------ ------------
Total current liabilities 227,743 261,337
------------ ------------
Deferred income taxes and other credits
Deferred income taxes and investment tax credits 156,013 152,063
Other deferred credits 43,255 42,032
------------ ------------
Total deferred income taxes and other credits 199,268 194,095
------------ ------------
Total capitalization and liabilities $ 1,624,962 $ 1,560,269
============ ============
The accompanying notes are an integral part of these statements.
</TABLE>
2<PAGE>
<PAGE>
<TABLE>
SOUTHWEST GAS CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(In thousands, except per share amounts)
(Unaudited)
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED TWELVE MONTHS ENDED
JUNE 30, JUNE 30, JUNE 30,
---------------------- ---------------------- ----------------------
1997 1996 1997 1996 1997 1996
---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Operating revenues:
Gas operating revenues $ 107,740 $ 102,713 $ 319,304 $ 291,065 $ 574,600 $ 528,857
Construction revenues 29,198 20,898 52,865 20,898 129,667 20,898
---------- ---------- ---------- ---------- ---------- ----------
Total operating revenues 136,938 123,611 372,169 311,963 704,267 549,755
---------- ---------- ----------- ---------- ---------- ----------
Operating expenses:
Net cost of gas sold 36,723 36,688 121,322 115,157 193,745 188,947
Operations and maintenance 49,407 48,260 97,855 95,471 200,748 189,718
Depreciation and amortization 20,296 18,052 40,927 34,591 80,035 66,205
Taxes other than income taxes 7,457 7,269 15,111 14,863 28,404 28,548
Construction expenses 27,037 18,089 49,421 18,089 116,021 18,089
---------- ---------- ---------- ---------- --------- ----------
Total operating expenses 140,920 128,358 324,636 278,171 618,953 491,507
---------- ---------- ---------- ---------- --------- ----------
Operating income (loss) (3,982) (4,747) 47,533 33,792 85,314 58,248
---------- ---------- ---------- ---------- --------- ----------
Other income and (expenses):
Net interest deductions (15,615) (13,476) (30,247) (26,429) (58,731) (53,423)
Preferred securities distributions (1,369) (1,369) (2,738) (2,738) (5,475) (3,651)
Other income (deductions), net 229 (282) (142) (203) (676) (864)
---------- ---------- ---------- ---------- --------- ----------
Total other income and (expenses) (16,755) (15,127) (33,127) (29,370) (64,882) (57,938)
---------- ---------- ---------- ---------- --------- ----------
Income (loss) from continuing operations before income taxes (20,737) (19,874) 14,406 4,422 20,432 310
Income tax expense (benefit) (7,989) (7,931) 5,586 1,506 7,954 (762)
---------- ---------- ---------- ---------- --------- ----------
Income (loss) from continuing operations (12,748) (11,943) 8,820 2,916 12,478 1,072
Net loss from discontinued operations -- -- -- -- -- (18,342)
---------- ---------- ---------- ---------- --------- ----------
Net income (loss) (12,748) (11,943) 8,820 2,916 12,478 (17,270)
---------- ---------- ---------- ---------- --------- ----------
Preferred stock dividend requirements -- -- -- -- -- 117
---------- ---------- ---------- ---------- --------- ----------
Net income (loss) applicable to common stock $ (12,748) $ (11,943) $ 8,820 $ 2,916 $ 12,478 $ (17,387)
========== ========== ========== ========== ========== ==========
Earnings (loss) per share from continuing operations $ (0.47) $ (0.46) $ 0.33 $ 0.12 $ 0.47 $ 0.04
Loss per share from discontinued operations -- -- -- -- -- (0.74)
---------- ---------- ---------- ---------- ---------- ----------
Earnings (loss) per share of common stock $ (0.47) $ (0.46) $ 0.33 $ 0.12 $ 0.47 $ (0.70)
========== ========== ========== ========== ========== ==========
Dividends paid per share of common stock $ 0 .205 $ 0.205 $ 0.41 $ 0.41 $ 0.82 $ 0.82
========== ========== ========== ========== ========== ==========
Average number of common shares outstanding 27,002 25,817 26,910 25,211 26,733 24,773
========== ========== ========== ========== ========== ==========
The accompanying notes are an integral part of these statements.
</TABLE>
3<PAGE>
<PAGE>
<TABLE>
SOUTHWEST GAS CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Thousands of dollars)
(Unaudited)
<CAPTION>
SIX MONTHS ENDED TWELVE MONTHS ENDED
JUNE 30, JUNE 30,
----------------------- -----------------------
1997 1996 1997 1996
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
CASH FLOW FROM OPERATING ACTIVITIES:
Net income (loss) $ 8,820 $ 2,916 $ 12,478 $ (17,270)
Adjustments to reconcile net income (loss) to net
cash provided by operating activities:
Depreciation and amortization 40,927 34,591 80,035 66,205
Deferred income taxes 27,321 (1,850) 46,624 (26,834)
Changes in current assets and liabilities:
Accounts receivable, net of allowances 20,439 10,847 (8,294) (778)
Accrued utility revenue 25,959 23,936 (577) (1,340)
Deferred purchased gas costs (66,908) 13,622 (103,874) 16,253
Accounts payable (20,413) (12,286) (3,163) 5,651
Accrued taxes (14,395) 3,045 (36,579) 14,142
Other current assets and liabilities 7,832 (2,238) 12,568 (5,138)
Other 1,069 2,543 8,502 1,163
Undistributed loss from discontinued operations -- -- -- 15,356
---------- ---------- ---------- ----------
Net cash provided by operating activities 30,651 75,126 7,720 67,410
---------- ---------- ---------- ----------
CASH FLOW FROM INVESTING ACTIVITIES:
Construction expenditures and property additions (81,033) (87,178) (212,690) (179,316)
Proceeds from bank sale -- -- 191,662 --
Other (3,503) (2,802) (22,813) 1,960
---------- ---------- ---------- ----------
Net cash used in investing activities (84,536) (89,980) (43,841) (177,356)
---------- ---------- ---------- ----------
CASH FLOW FROM FINANCING ACTIVITIES:
Issuance of common stock 6,166 11,412 12,864 20,576
Issuance of trust originated preferred securities, net -- -- -- 57,713
Reacquisition of preferred stock -- -- -- (4,000)
Dividends paid (11,020) (10,427) (21,904) (20,029)
Issuance of long-term debt, net 92,871 9,286 248,461 33,893
Retirement of long-term debt, net (3,690) (1,519) (250,702) (1,549)
Issuance (repayment) of short-term debt (32,580) 5,234 43,244 26,234
Other -- 1,270 (1,270) 684
---------- ---------- ---------- ----------
Net cash provided by financing activities 51,747 15,256 30,693 113,522
Change in cash and temporary cash investments (2,138) 402 (5,428) 3,576
Cash at beginning of period 8,280 11,168 11,570 7,994
---------- ---------- ---------- ----------
Cash at end of period $ 6,142 $ 11,570 $ 6,142 $ 11,570
========== ========== ========== ==========
Supplemental information:
Interest paid, net of amounts capitalized $ 29,104 $ 30,142 $ 58,970 $ 61,500
========== ========== ========== ==========
Income taxes, net of refunds $ (2,682) $ 4,428 $ 11,572 $ 7,422
========== ========== ========== ==========
The accompanying notes are an integral part of these statements.
</TABLE>
4<PAGE>
<PAGE>
Note 1 - Summary of Significant Accounting Policies
Nature of Operations. Southwest Gas Corporation (the Company) is
comprised of two segments: Natural gas operations (Southwest or the natural
gas operations segment) and construction services. Southwest purchases,
transports, and distributes natural gas to customers in portions of Arizona,
Nevada, and California. Natural gas sales are seasonal, peaking during the
winter months. Variability in weather from normal temperatures can materially
impact results of operations. Northern Pipeline Construction Co. (Northern or
the construction services segment), a wholly owned subsidiary, is a full-service
underground piping contractor which provides utility companies with
trenching and installation, replacement, and maintenance services for energy
distribution systems.
Discontinued Operations. In July 1996, the Company completed the
sale of the assets and liabilities of PriMerit Bank (the Bank) to Norwest
Corporation. The results of operations of the Bank are shown as discontinued
operations in the accompanying financial statements.
Basis of Presentation. The consolidated financial statements
included herein have been prepared by the Company, without audit, pursuant to
the rules and regulations of the Securities and Exchange Commission. Certain
information and footnote disclosures normally included in financial statements
prepared in accordance with generally accepted accounting principles have been
condensed or omitted pursuant to such rules and regulations. The preparation
of the consolidated financial statements requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenue and expenses during the
reporting period. Actual results could differ from those estimates. In the
opinion of management, all adjustments, consisting of normal recurring items
and estimates necessary for a fair presentation of the results for the interim
periods, have been made. It is suggested that these consolidated financial
statements be read in conjunction with the financial statements and the notes
thereto included in the Company's 1996 Annual Report to Shareholders, which is
incorporated by reference into the Form 10-K, and the 1997 First Quarter
Report on Form 10-Q.
Intercompany Transactions. During the six months ended June 30,
1997, the construction services segment recognized $18 million of revenues
generated from contracts with Southwest. At June 30, 1997, accounts
receivable for these services was $3.2 million. The accounts receivable
balance, revenues, and associated profits are included in the consolidated
financial statements of the Company and were not eliminated during
consolidation. Statement of Financial Accounting Standards (SFAS) No. 71,
"Accounting for the Effects of Certain Types of Regulation," provides that
intercompany profits on sales to regulated affiliates should not be eliminated
in consolidation if the sales price is reasonable and if future revenues
approximately equal to the sales price will result from the rate-making
process. Management believes these two criteria will be met.
5<PAGE>
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The Company is principally engaged in the business of purchasing,
transporting, and distributing natural gas. Southwest is the largest
distributor in Arizona, selling and transporting natural gas in most of
southern, central, and northwestern Arizona, including the Phoenix and Tucson
metropolitan areas. Southwest is also the largest distributor and transporter
of natural gas in Nevada, and serves the Las Vegas metropolitan area and
northern Nevada. In addition, Southwest distributes and transports natural
gas in portions of California, including the Lake Tahoe area in northern
California and high desert and mountain areas in San Bernardino County.
Southwest purchases, transports, and distributes natural gas to approximately
1,113,000 residential, commercial, industrial and other customers, of which
58 percent are located in Arizona, 32 percent are in Nevada, and 10 percent
are in California. During the twelve months ended June 30, 1997, Southwest
earned 54 percent of operating margin in Arizona, 37 percent in Nevada, and
9 percent in California. During this same period, Southwest earned 62 percent
of operating margin from residential customers, 23 percent from commercial
customers, and 15 percent from industrial and other customers. These patterns
are consistent with prior years and are expected to continue.
Northern is a full-service underground piping contractor which provides
utility companies with trenching and installation, replacement, and
maintenance services for energy distribution systems.
Capital Resources and Liquidity
The capital requirements and resources of the Company generally are determined
independently for the natural gas operations and construction services
segments. Each business activity is generally responsible for securing its
own financing sources. The capital requirements and resources of the
construction services segment are not material to the overall capital
requirements and resources of the Company.
Southwest continues to experience significant population growth throughout its
service territories. This growth has required large amounts of capital to
finance the investment in infrastructure, in the form of new transmission and
distribution plant, to satisfy consumer demand. Southwest estimates
construction expenditures during the three-year period ending
December 31, 1999 will be approximately $468 million. During the three-year
period, cash flow from operating activities (net of dividends) is estimated to
fund approximately one-half of the gas operations total construction
expenditures. A portion of the construction expenditure funding will be
provided by $30 million of funds held in trust, at December 31, 1996, from the
issuance of industrial development revenue bonds (IDRB). The remaining cash
requirements are expected to be provided by external financing sources. The
timing, types, and amounts of these additional external financings will be
dependent on a number of factors, including conditions in the capital markets,
timing and amounts of rate relief, and growth levels in Southwest service
areas. These external financings may include the issuance of both debt and
equity securities, bank and other short-term borrowings, and other forms of
financing. Due to the significant size of the current construction program,
differences between estimated and actual results are expected to occur.
Actual events, and the timing of those events, frequently do not occur as
expected, and can impact, favorably or unfavorably, anticipated cash flows.
For the twelve months ended June 30, 1997, natural gas construction
expenditures totaled $201 million. Approximately 80 percent of these
expenditures represents new construction and the balance represents costs
associated with routine replacement of existing transmission, distribution and
general plant. Financing for recent construction expenditures and for other
corporate purposes was provided primarily by the issuances of medium-term
notes in January, February and June 1997 totaling $75 million and a
$16 million issuance of commercial paper in February 1997.
Cash flows from operating activities during the six and twelve months ended
June 30, 1997 were negatively affected by increases in the cost of gas during
the fourth quarter of 1996 and first quarter of 1997. Higher gas costs
coupled with refunds to customers of previously overcollected amounts shifted
the deferred purchased gas cost balance from a $46.4 million payable, at
6<PAGE>
<PAGE>
June 30, 1996, to a $57.5 million receivable, at June 30, 1997, a $104 million
change. Southwest must first seek regulatory approval before changing the
rates it charges for recovery of gas costs.
The increase in the cost of gas resulted from several factors including
reduced natural gas storage supplies nationwide following colder-than-normal
temperatures in the East and Midwest during the winter heating season of
1995/1996. Domestic storage supplies were not fully replenished during the
summer months of 1996 because natural gas prices did not fall as much as
expected, and companies were shifting to "just-in-time" delivery practices in
lieu of storage. Reduced availability coupled with increased weather-related
demand for supplies during the winter heating season of 1996/1997 were the
primary reasons for the increased cost of natural gas. These increases not
only impacted Southwest, but local gas distribution companies throughout the
country.
Southwest intends to file for recovery of the accumulated balances in all
applicable rate jurisdictions. In January 1997, Southwest submitted a
purchased gas cost adjustment (PGA) filing with the Public Service Commission
of Nevada (PSCN). In April 1997 the filing was amended. If approved as
amended, the filing would result in annual increases of $12.4 million, or
11 percent, in the southern Nevada rate jurisdiction and $6 million, or
14 percent, in the northern Nevada rate jurisdiction. Hearings on this filing
were held in July 1997 and a final decision from the PSCN is expected during
the third quarter of 1997.
In June 1997, Southwest submitted an additional PGA filing with the PSCN to
increase annual rates by $24 million, or 19 percent, in southern Nevada and
$8.6 million, or 17 percent, in northern Nevada. This annual PGA filing
addresses the increased costs of natural gas since the beginning of 1997 as
well as an increase to recover costs previously deferred.
Results of Consolidated Operations
Quarterly Analysis
Contribution to Net Loss
Three Months Ended June 30,
---------------------------
(Thousands of dollars)
1997 1996
--------- ---------
Natural gas operations $ (12,747) $ (12,389)
Construction services (1) 446
--------- ---------
Net loss $ (12,748) $ (11,943)
========= =========
Loss per share for the quarter ended June 30, 1997 was $0.47, compared to a
$0.46 loss per share recorded during the corresponding quarter of the prior
year. Loss from natural gas operations improved $0.01 per share. See
separate discussion at RESULTS OF NATURAL GAS OPERATIONS for changes as they
relate to gas operations. Construction services results declined $0.02 per
share from the previous period primarily resulting from inclement weather in
some construction areas. In addition, the 1996 income does not include April
Northern results which are typically losses due to the seasonal nature of the
construction services business. Average shares outstanding increased
1.2 million shares between years primarily resulting from continuing issuances
under the Company Dividend Reinvestment and Stock Purchase Plan.
7<PAGE>
<PAGE>
Six-Month Analysis
Contribution to Net Income
Six Months Ended June 30,
---------------------------
(Thousands of dollars)
1997 1996
--------- ---------
Natural gas operations $ 9,789 $ 2,470
Construction services (969) 446
--------- ---------
Net income $ 8,820 $ 2,916
========= =========
Earnings per share for the six months ended June 30, 1997 were $0.33 a $0.21
increase from per share earnings of $0.12 recorded during the corresponding
six months of the previous year. Earnings contributed from natural gas
operations during the current six-month period were $0.36 per share, an
increase of $0.26 per share. See separate discussion at RESULTS OF NATURAL GAS
OPERATIONS for changes as they relate to gas operations. Construction
services activities incurred a loss per share of $0.03 during the current
period reflecting the seasonal nature of construction activity in colder
climate areas. In the prior period, construction services contributed $0.02
per share, however, those results excluded the months of January through April
1996 which are typically loss months. Average shares outstanding increased
1.7 million shares between years primarily resulting from a 1.4 million share
issuance in April 1996 to acquire Northern.
Twelve-Month Analysis
Contribution to Net Income (Loss)
Twelve Months Ended June 30,
----------------------------
(Thousands of dollars)
1997 1996
--------- ---------
Continuing operations
Natural gas operations $ 11,238 $ 626
Construction services 1,240 446
--------- ---------
12,478 1,072
Discontinued operations-financial services -- (18,342)
--------- ---------
Net income (loss) $ 12,478 $ (17,270)
========= =========
Earnings per share for the twelve months ended June 30, 1997 were $0.47, a
$0.43 increase from the $0.04 per share earnings from continuing operations
recorded during the prior twelve-month period. Earnings contributed from
natural gas operations increased $0.40 per share. See separate discussion
at RESULTS OF NATURAL GAS OPERATIONS for changes as they relate to gas
operations. Construction services activities contributed per share
earnings of $0.05 reflecting a full year of operations. Discontinued
operations posted a $0.74 per share loss during the prior year. Average
shares outstanding increased 2 million shares between periods due to a 1.4
million share issuance in April 1996 to acquire Northern and issuances
under the Company Dividend Reinvestment and Stock Purchase Plan.
The following table sets forth the ratios of earnings to fixed charges for
the Company:
For the Twelve Months Ended
------------------------------
June 30, December 31,
1997 1996
------------ ------------
Ratios of earnings to fixed charges 1.28 1.15
For the purposes of computing the ratios of earnings to fixed charges,
earnings are defined as the sum of pretax income from continuing operations
plus fixed charges. Fixed charges consist of all interest expense
including capitalized interest, one-third of rent expense (which
approximates the interest component of such expense), preferred securities
distributions and amortized debt costs.
8<PAGE>
<PAGE>
Results of Natural Gas Operations
Quarterly Analysis
Three Months Ended
June 30,
-------------------------
(Thousands of dollars)
1997 1996
---------- ---------
Gas operating revenues $ 107,740 $ 102,713
Net cost of gas sold 36,723 36,688
---------- ---------
Operating margin 71,017 66,025
Operations and maintenance expense 49,407 48,260
Depreciation and amortization 18,357 16,452
Taxes other than income taxes 7,457 7,269
---------- ---------
Operating income (loss) (4,204) (5,956)
Other income (expense), net (43) (354)
---------- ---------
Income (loss) before interest and income taxes (4,247) (6,310)
Net interest deductions 15,195 13,053
Preferred securities distributions 1,369 1,369
Income tax expense (benefit) (8,064) (8,343)
---------- ---------
Contribution to consolidated net income $ (12,747) $ (12,389)
========== =========
Contribution to consolidated net income declined $358,000 compared to the
second quarter of 1996. Higher operating and financing expenses incurred
as a result of the expansion and upgrading of the gas system to accommodate
continued customer growth were nearly offset by improvements in operating
margin.
Operating margin increased $5 million, or eight percent, in the second
quarter of 1997 when compared to the second quarter of 1996. The operating
margin improvement was primarily the result of general rate relief granted
in Nevada jurisdictions effective July 1996 and customer growth. Southwest
added approximately 62,000 customers during the past twelve months, a six
percent increase.
Operations and maintenance expenses increased $1.1 million, or two percent,
reflecting general increases in labor, purchased goods and services.
Depreciation expense and general taxes increased $2.1 million, or
nine percent, as a result of construction activities. Average gas plant in
service increased $169 million, or ten percent, as compared to the second
quarter of 1996. The increase reflects ongoing capital expenditures for
the upgrade of existing operating facilities and the expansion of the
system to accommodate continued customer growth.
Financing costs increased $2.1 million, or 15 percent, over the prior
period. This increase is primarily attributed to higher short-term
borrowings outstanding during the current quarter and an increase in
long-term debt reflecting $75 million of medium-term note issuances during
1997. The increase in short-term debt reflects the need for short-term
financing to cover higher gas costs experienced during the fourth quarter of
1996 and first quarter of 1997.
9<PAGE>
<PAGE>
Six-Month Analysis
Six Months Ended
June 30,
------------------------
(Thousands of dollars)
1997 1996
---------- ----------
Gas operating revenues $ 319,304 $ 291,065
Net cost of gas sold 121,322 115,157
---------- ----------
Operating margin 197,982 175,908
Operations and maintenance expense 97,855 95,471
Depreciation and amortization 36,315 32,991
Taxes other than income taxes 15,111 14,863
---------- ----------
Operating income 48,701 32,583
Other income (expense), net (648) (275)
---------- ----------
Income before interest and income taxes 48,053 32,308
Net interest deductions 29,456 26,006
Preferred securities distributions 2,738 2,738
Income tax expense 6,070 1,094
---------- ----------
Contribution to consolidated net income $ 9,789 $ 2,470
========== ==========
Contribution to consolidated net income increased $7.3 million compared to
the six months ended June 1996. The increase was the result of improvement
in operating margin, offset somewhat by higher operating and financing
expenses.
Operating margin increased $22.1 million, or 13 percent, during the six
months ended June 1997 compared to the same period in 1996 due primarily to
continued customer growth throughout the Southwest service areas, general
rate relief granted in Nevada jurisdictions effective July 1996, and more
favorable weather conditions during the first quarter of 1997 relative to
the first quarter of 1996.
Operations and maintenance expenses increased $2.4 million, or two percent,
reflecting increases in labor and maintenance costs along with incremental
operating expenses associated with providing service to the growing
Southwest customer base.
Depreciation expense and general taxes increased $3.6 million, or seven
percent, resulting from an increase in average gas plant in service of $162
million, or ten percent. This increase reflects capital expenditures for
the upgrade of existing operating facilities and the expansion of the
system to accommodate new customers being added to the system.
Financing costs increased $3.5 million, or 12 percent, during the six
months ended June 1997 over the comparative prior period. Average total
debt outstanding during the period increased due to the financing of
construction expenditures and working capital needs and included higher
short-term debt, the issuance of medium-term notes during 1997, and the
drawdown of IDRB funds held in trust.
10<PAGE>
<PAGE>
Twelve-Month Analysis
Twelve Months Ended
June 30,
------------------------
(Thousands of dollars)
1997 1996
---------- ----------
Gas operating revenues $ 574,600 $ 528,857
Net cost of gas sold 193,745 188,947
---------- ----------
Operating margin 380,855 339,910
Operations and maintenance expense 200,748 189,718
Depreciation and amortization 70,767 64,605
Taxes other than income taxes 28,404 28,548
---------- ----------
Operating income 80,936 57,039
Other income (expense), net (1,133) (936)
---------- ----------
Income before interest and income taxes 79,803 56,103
Net interest deductions 56,453 53,000
Preferred securities distributions 5,475 3,651
Income tax expense (benefit) 6,637 (1,174)
---------- ----------
Contribution to consolidated net income $ 11,238 $ 626
========== ==========
Contribution to consolidated net income increased $10.6 million compared to
the corresponding twelve-month period ended June 1996. The increase was
the result of an improvement in operating margin, offset somewhat by higher
operating and financing expenses.
Operating margin increased $40.9 million due to customer growth, rate
relief, and improved, but warmer-than-normal, weather conditions.
Southwest billed an average of 63,000 more customers per month than during
the previous twelve-month period which contributed approximately $11
million of additional margin. General rate relief granted in Nevada
jurisdictions effective July 1996 contributed $14 million. Weather-related
variances between periods resulted in a $16 million increase in operating
margin from weather-sensitive customers. On a weather-normalized basis,
operating margin would have been approximately $14 million greater than
actually reported for the twelve months ended June 30, 1997 and $30 million
higher in the previous period.
Operations and maintenance expenses increased $11 million, or six percent,
reflecting increases in labor and maintenance costs along with incremental
operating expenses associated with providing service to the steadily
growing Southwest customer base.
Depreciation expense and general taxes increased $6 million, or six
percent, as a result of construction activities. Average gas plant in
service for the current twelve-month period increased $151 million, or
ten percent, compared to the corresponding period a year ago. This was
attributed to the upgrade of existing operating facilities and the
expansion of the system to accommodate customer growth.
Financing costs increased $5.3 million, or nine percent, during the twelve
months ended June 30, 1997 over the comparative prior period. Average
total debt outstanding during the period increased due to the financing of
construction expenditures and working capital needs and included higher
short-term debt, the issuance of medium-term notes during 1997, and the
drawdown of IDRB funds held in trust. Additionally, the current year
reflects the full annual cost of the $60 million issuance of preferred
securities in October 1995.
11<PAGE>
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Rates and Regulatory Proceedings
Arizona
In November 1996, Southwest filed a general rate application with the
Arizona Corporation Commission (ACC) seeking approval to increase revenues
by $49.3 million annually for both of its Arizona rate jurisdictions.
Southwest is seeking rate relief for increased operating costs, changes in
financing costs, and improvements and additions to the distribution system.
The rate application also proposes a number of rate design improvements
including consolidation of the southern and central Arizona rate
jurisdictions and better matching of rates with the costs of serving
various customer classes. In June 1997 a settlement agreement was filed
with the ACC representing agreement among the principal parties to resolve
the rate case without a lengthy hearing process. If approved as filed, the
settlement agreement would authorize an annual revenue increase of $32
million effective September 1997. The ACC is expected to address the
settlement agreement filing at a hearing in late August 1997.
FERC
In July 1996, Paiute Pipeline Company, a wholly owned subsidiary of the
Company, filed a general rate case with the Federal Energy Regulatory
Commission (FERC) seeking approval to increase revenues by $6.9 million
annually. Paiute is seeking rate relief for increased costs associated with
transmission system additions and improvements, higher depreciation rates,
operating cost increases including labor, and an increase in the allowed
rate of return. Interim rates reflecting the increased revenues became
effective in January 1997, subject to refund until a final order is issued.
In June 1997 a settlement agreement was filed with the FERC which calls for
a $3.2 million general rate increase. A final order could be received by
the end of 1997. The Company has been accruing a liability to customers
for the difference between the rates collected since January 1, 1997 and
the estimated amount of relief to ultimately be granted.
California
Northern California Expansion Project. In 1995, Southwest initiated a
multi-year, three-phase construction project to expand its northern
California service territory and extend service into Truckee, California.
(See Note 8 of the Notes to Consolidated Financial Statements of the 1996
Annual Report to Shareholders, incorporated by reference into the Form 10-K,
for additional background information.) In July 1997, Southwest filed
an application requesting authorization from the California Public
Utilities Commission (CPUC) to modify the terms and conditions of the
certificate of public convenience and necessity granted by the CPUC in
1995.
In the new application, Southwest is requesting that the cost cap of $29.1
million, originally approved by the CPUC, be increased to $46.8 million;
that the scope of Phase III construction be revised to include 2,900 of the
initially proposed 4,200 customers; and that Southwest be permitted to
collect contributions or advances from customer applicants desiring service
in the expansion area who were not identified to receive service during the
expansion phases as modified within the new application. Southwest has
proposed to recover the incremental costs above the original cost cap on a
dollar-for-dollar basis through a surcharge mechanism.
The modified filing, if approved as proposed, places Southwest in an
improved position to recover the costs of the expansion and earn a return
on its investment. Management expects the CPUC to hold hearings on this
filing and issue a final decision by the end of 1997.
For the remainder of 1997, construction work on this project will be
limited to the installation of services and meters off existing mains for
approximately 900 additional customers at a cost of approximately $1
million. Phase III, if approved as modified in the July 1997 application,
would be completed during the 1998 and 1999 construction seasons with
construction expenditures estimated at $11 million.
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Recently Issued Accounting Pronouncements
In June 1997, the Financial Accounting Standards Board issued two new
accounting pronouncements. Statement of Financial Accounting Standards
(SFAS) No. 130, "Reporting Comprehensive Income," establishes standards for
reporting and displaying comprehensive income and its components in a full
set of general-purpose financial statements. The components are required
to be reported in a financial statement that is displayed with the same
prominence as other financial statements. This statement becomes effective
January 1, 1998. The Company is in the process of reviewing the
requirements of SFAS No. 130 and determining the placement and format of
the required disclosures.
The second pronouncement issued was SFAS No. 131, "Disclosures about
Segments of an Enterprise and Related Information." SFAS No. 131
establishes standards for the way that public business enterprises report
information about operating segments in annual financial statements and
requires that those enterprises report selected information about operating
segments in interim financial reports issued to shareholders. The
statement becomes effective for 1998 annual financial statements. The
Company is in the process of reviewing the requirements of SFAS No. 131,
and determining the content and format of the additional disclosures.
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PART II - OTHER INFORMATION
ITEMS 1-3 None
ITEM 4 SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Company's Annual Meeting of Shareholders was held on May 8,
1997. Matters voted upon and the results of the voting were as
follows:
(1) The eleven directors nominated were reelected.
(2) The proposal to ratify the selection of Arthur Andersen LLP as
independent public accountants for the Company was approved.
Shareholders voted 21,818,417 shares in favor, 206,078
opposed, and 192,493 abstentions.
ITEM 5 OTHER INFORMATION
In July 1997, the Southwest Gas Corporation Board of Directors
approved the addition of James J. Kropid and Terrance L. Wright
to its board. Mr. Kropid is president of James J. Kropid
Investments. He is a graduate of DePaul University in Chicago and
the executive development program at the University of Illinois.
He joined Centel Corporation in 1961 and became president of its
Nevada/Texas division in 1987. In 1993 and subsequent to his
retirement, Kropid was appointed general manager of the Nevada
State Industrial Insurance System, a position in which he served
for two years.
Mr. Wright is president and chief executive officer
of Nevada Title Insurance Company. He is a graduate of DePaul
University where he received his undergraduate degree in business
administration and a juris doctorate. He joined Chicago Title
Insurance Company while in law school, and after graduation,
remained with the company and moved to its Las Vegas office.
In 1978, he acquired the assets of Western Title to form the
company he now heads.
ITEM 6 EXHIBITS AND REPORTS ON FORM 8-K
(a) The following documents are filed as part of this report on
Form 10-Q:
Exhibit 3 (ii) Amended Bylaws of Southwest Gas Corporation.
Exhibit 10 $350 million Revolving Credit Agreement
among the Company, Union Bank of
Switzerland, et al., dated as of
June 12, 1997.
Exhibit 12 Computation of Ratios of Earnings to Fixed
Charges and Ratios of Earnings to Combined
Fixed Charges and Preferred Stock Dividends.
Exhibit 27 Financial Data Schedule (filed
electronically only)
Exhibit 99 Financial Analyst Report-
Second Quarter 1997
(b) Reports on Form 8-K
None
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Southwest Gas Corporation
------------------------------------------------------
(Registrant)
Date: August 13, 1997
/s/ Edward A. Janov
------------------------------------------------------
Edward A. Janov
Vice President/Controller and Chief Accounting Officer
15<PAGE>
<PAGE>
Exhibit 3(ii)
BYLAWS
OF
SOUTHWEST GAS CORPORATION
ARTICLE I
SECTION 1. PRINCIPAL OFFICE
The principal office for the transaction of the business of the corporation is
hereby fixed and located at 5241 Spring Mountain Road, in the City of Las
Vegas, County of Clark, State of Nevada.
SECTION 2. OTHER OFFICES
Branch or subordinate offices may at any time be established by the Board of
Directors at any place or places where the corporation is qualified to do
business.
SECTION 3. TERMINOLOGY
All personal pronouns used herein are employed in a generic sense and are
intended and deemed to be neutral in gender.
ARTICLE II
MEETING OF SHAREHOLDERS
SECTION 1. REGULAR MEETING
Commencing in May, 1988, the regular annual meeting of the shareholders shall
be held at the principal office of the corporation, or at such other place
within or without the State of California as the officers of the corporation
may deem convenient and appropriate, at 10 a.m. on the second Thursday of May
of each year, if not a legal holiday, and if a legal holiday, then at 10 a.m.
on the next succeeding business day, for the purpose of electing a Board of
Directors and transacting such other business as properly may come before the
meeting; provided, however, that the Board of Directors may, by resolution,
establish a different date not more than 120 days thereafter if, in its sole
discretion, it deems such postponement appropriate.
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SECTION 2. SPECIAL MEETINGS
Except in those instances where a particular manner of calling a meeting of
the shareholders is prescribed by law or elsewhere in these Bylaws, a special
meeting of the shareholders may be called at any time by the Chief Executive
Officer or other officers acting for him or by the Board of Directors, or by
the holders of not less than one-third of the voting shares then issued and
outstanding. Each call for a special meeting of the shareholders shall state
the time, place, and the purpose of such meeting; if made by the Board of
Directors, it shall be by resolution duly adopted by a majority vote and
entered in the minutes; if made by an authorized officer or by the
shareholders, it shall be in writing and signed by the person or persons
making the same, and unless the office of Secretary be vacant, delivered to
the Secretary. No business shall be transacted at a special meeting other than
as is stated in the call and the notice based thereon.
SECTION 3. NOTICE OF REGULAR AND SPECIAL MEETINGS
OF THE SHAREHOLDERS
Notice of each regular and special meeting of the shareholders of the
corporation shall be given by mailing to each shareholder a notice of the
time, place and purpose of such meeting addressed to him at his address as it
appears upon the books of the corporation. Each such notice shall be deposited
in the United States Mail with the postage thereon prepaid at least ten days
prior to the time fixed for such meeting. If the address of any such
shareholder does not appear on the books of the corporation and his post
office address is unknown to the person mailing such notices, the notice shall
be addressed to him at the principal office of the corporation.
SECTION 4. QUORUM
At any meeting of the shareholders, the presence in person or by proxy of the
holders of a majority of the shares entitled to vote at any meeting shall
constitute a quorum for the transaction of business, except when it is
otherwise provided by law. Any regular or special meeting of the shareholders
may adjourn from day to day or from time to time if, for any reason, there are
not present in person or by proxy the holders of a majority of the shares
entitled to vote at said meeting. Such adjournment and the reasons therefor
shall be recorded in the minutes of the proceedings.
SECTION 5. WAIVER OF NOTICE
When all the shareholders of the corporation are present at any meeting, or
when the shareholders not represented thereat give their written consent to
the holding thereof at the time and place the meeting is held, and such
written consent is made a part of the records of such meeting, the proceedings
had at such meeting are valid, irrespective of the manner in which the meeting
is called or the place where it is held.
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ARTICLE III
BOARD OF DIRECTORS
SECTION 1. NUMBER--QUORUM
The business of the corporation shall be managed by a Board of Directors,
whose number shall be not fewer than eleven (11) nor greater than fourteen
(14), as the Board of Directors or the shareholders by amendment of these
Bylaws may establish, provided, however, that a reduction in the authorized
number of directors shall not remove any director prior to the expiration of
his term of office, and provided further that the shareholders may, pursuant
to law, establish a different and definite number of directors or different
maximum and minimum numbers of directors by amendment of the Articles of
Incorporation or by a duly adopted amendment to these Bylaws. A majority of
the prescribed number of directors shall be necessary to constitute a quorum
for the trans- action of business. At a meeting at which a quorum is present,
every decision or act of a majority of the directors present made or done when
duly assembled shall be valid as the act of the Board of Directors, provided
that a minority of the directors, in the absence of a quorum, may adjourn from
day to day but may transact no business.
SECTION 2. EXACT NUMBER OF DIRECTORS
The number of directors of the corporation is hereby established, pursuant to
the provisions of Section 1 of this Article III, as thirteen (13).
SECTION 3. ELECTION AND TERM OF OFFICE
The directors shall be elected at each annual meeting of shareholders, but if
any such annual meeting is not held, or the directors are not elected thereat,
the directors may be elected at any special meeting of shareholders held for
that purpose. All directors shall hold office until their respective
successors are elected and qualified.
SECTION 4. VACANCIES
Vacancies in the Board of Directors may be filled by a majority of the
remaining directors, though they be less than a quorum, and each director so
elected shall hold office until his successor is qualified following the
election at the next annual meeting of the shareholders or at any special
meeting of shareholders duly called for that purpose prior to such annual
meeting. A vacancy shall be deemed to exist in case the shareholders (or the
Board of Directors, within the provisions of Section 1 of this Article III)
shall increase the authorized number of directors, but shall fail, for a
period of thirty days from the effective date of such increase, to elect the
additional directors so provided for, or in case the shareholders fail at any
time to elect the full number of authorized directors. When one or more of the
3<PAGE>
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directors shall give notice to the Board of Directors of his or their
resignation from said Board, effective at a future date, the Board of
Directors shall have the power to fill such vacancy or vacancies to take
effect when such resignation or resignations become effective. Each director
so appointed shall hold office during the remainder of the term of office of
the resigning director or directors or until their successors are appointed
and qualify.
SECTION 5. FIRST MEETING OF DIRECTORS
Immediately following each annual meeting of shareholders, the Board of
Directors shall hold a regular meeting for the purpose of organization,
election of officers, and the transaction of other business. Notice of such
meeting is hereby dispensed with.
SECTION 6. REGULAR MEETINGS
Commencing in 1991, the time for other regular meetings of the Board of
Directors, when held, shall be 8 a.m. on the third Tuesday of January, July,
September and November, the first Tuesday of March and the second Wednesday of
May, unless a different schedule is established by a resolution of the Board.
If any regular meeting date shall fall on a legal holiday, then the regular
meeting date shall be the business day next following.
SECTION 7. SPECIAL MEETINGS
A special meeting of the Board of Directors shall be held whenever called by
the Chief Executive Officer or other officer acting for him, or by three
directors. Any and all business may be transacted at a special meeting. Each
call for a special meeting shall be in writing, signed by the person or
persons making the same, addressed and delivered to the Secretary, and shall
state the time and place of such meeting.
SECTION 8. NOTICE OF REGULAR AND SPECIAL MEETINGS OF THE DIRECTORS
No notice shall be required to be given of any regular meeting of the Board of
Directors, but each director shall take notice thereof. Notice of each special
meeting of the Board of Directors shall be given to each of the directors by
mailing to each of them a copy of such notice at least five days prior to the
time affixed for such meeting to the address of such director as shown on the
books of the corporation. If his address does not appear on the books of the
corporation, then such notice shall be addressed to him at the principal
office of the corporation.
SECTION 9. WAIVER OF NOTICE
When all the directors of the corporation are present at any meeting of the
Board of Directors, however called or noticed, and sign a written consent
thereto on the record of such meeting, or if the majority of the directors are
present, and if those not present sign in writing a waiver of notice of such
4<PAGE>
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meeting, whether prior to or after the holding of such meeting, which waiver
shall be filed with the Secretary of the corporation, the transactions of such
meeting are as valid as if had at a meeting regularly called and noticed.
SECTION 10. ACTION BY UNANIMOUS CONSENT OF DIRECTORS
Any action required or permitted to be taken by the Board of Directors may be
taken without a meeting if all members of the Board shall individually or
collectively consent in writing to such action. Such written consent or
consents shall be filed with the minutes of the proceedings of the Board, and
such action by written consent shall have the same force and effect as if
approved or taken at a regular meeting duly held. Any certificate or other
document which relates to action so taken shall state that the action was
taken by unanimous written consent of the Board of Directors without a
meeting, and that these Bylaws authorize the directors to so act.
SECTION 11. TELEPHONIC PARTICIPATION IN MEETINGS
Members of the Board may participate in a meeting through use of conference
telephone or similar communications equipment, so long as all members
participating in such meeting can hear one another. Participation in a meeting
pursuant to this section shall constitute presence in person at such meeting.
ARTICLE IV
POWERS OF DIRECTORS
SECTION 1. The directors shall have power:
1. To call special meetings of the shareholders when they deem it necessary,
and they shall call a meeting at any time upon the written request of
shareholders holding one-third of all the voting shares:
2. To appoint and remove at pleasure all officers and agents of the
corporation, prescribe their duties, fix their compensation, and require from
them as necessary security for faithful service;
3. To create and appoint committees, offices, officers and agents of the
corporation, and to prescribe and from time to time change their duties and
compensation, but no committee shall be created and no member appointed
thereto except upon approval of a majority of the whole Board of Directors;
and
4. To conduct, manage, and control the affairs and business of the
corporation and to make rules and regulations not inconsistent with the laws
of the State of California, or the Bylaws of the corporation, for the guidance
of the officers and management of the affairs of the corporation.
5<PAGE>
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ARTICLE V
DUTIES OF DIRECTORS
SECTION 1. It shall be the duty of the directors:
1. To cause to be kept a complete record of all their minutes and acts, and
of the proceedings of the shareholders, and present a full statement at the
regular annual meeting of the shareholders, showing in detail the assets and
liabilities of the corporation, and generally the condition of its affairs. A
similar statement shall be presented at any other meeting of the shareholders
when theretofore required by persons holding at least one-half of the voting
shares of the corporation;
2. To declare dividends out of the profits arising from the conduct of the
business, whenever such profits shall, in the opinion of the directors,
warrant the same;
3. To oversee the actions of all officers and agents of the corporation, see
that their duties are properly performed; and
4. To cause to be issued to the shareholders, in proportion to their several
interests, certificates of stock.
ARTICLE VI
OFFICERS
SECTION 1. The officers shall include a Chairman of the Board of Directors, a
Chief Executive Officer, who may be designated Chairman, a President, a
Secretary, a Treasurer, a Controller, and may include one or more Executive
Vice Presidents, Senior Vice Presidents, Vice Presidents, Assistant Vice
Presidents, Assistant Secretaries, and Assistant Treasurers. All such officers
shall be elected by and hold office at the pleasure of the Board of Directors,
provided that the Chief Executive Officer shall have authority to dismiss any
other officer. Any director shall be eligible to be the Chairman of the Board
of Directors and any two or more of such offices may be held by the same
person, except that the Chief Executive Officer or President may not also hold
the office of Secretary. Any officer may exercise any of the powers of any
other officer in the manner specified in these Bylaws, as specified from time
to time by the Board of Directors, and/or as specified from time to time by
the Chief Executive Officer or senior officer acting in his or her absence or
incapacity, and any such acting officer shall perform such duties as may be
assigned to him or her.
6<PAGE>
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ARTICLE VII
FEES AND COMPENSATION
SECTION 1. Directors shall be reimbursed for their expenses, and shall be
compensated for their services as directors in such amounts as the Board may
fix by resolution. Nothing herein con- tained shall be construed to preclude
any director from serving the corporation in any other capacity as an officer,
agent, employee, or otherwise, and receiving compensation therefor.
ARTICLE VIII
INDEMNIFICATION
SECTION 1. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Each person who was or is a party or is threatened to be made a party to or is
involved in any threatened, pending or completed action, suit or proceeding,
formal or informal, whether brought in the name of the corporation or
otherwise and whether of a civil, criminal, administrative or investigative
nature (hereinafter a "proceeding"), by reason of the fact that he or she, or
a person of whom he or she is the legal representative, is or was a director
or officer of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether the basis of such
proceeding is an alleged action or inaction in an official capacity or in any
other capacity while serving as a director or officer, shall, subject to the
terms of any agreement between the corporation and such person, be indemnified
and held harmless by the corporation to the fullest extent permissible under
California law and the corporation's Articles of Incorporation, against all
costs, charges, expenses, liabilities and losses (including attorneys' fees,
judgments, fines, ERISA excise tax or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith, and such indemnification shall continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of his or
her heirs, executors and administrators; provided, however, that (a) the
corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only
if such proceeding (or part thereof) was authorized by the Board of the
corporation, (b) the corporation shall indemnify such person seeking
indemnification in connection with a proceeding (or part thereof) other than a
proceeding by or in the name of the corporation to procure a judgment in its
favor only if any settlement of such a proceeding is approved in writing by
the corporation, and (c) that no such person shall be indemnified (i) except
to the extent that the aggregate of losses to be indemnified exceeds the
amount of such losses for which the director or officer is paid pursuant to
any directors' and officers' liability insurance policy maintained by the
corporation; (ii) on account of any suit in which judgment is rendered against
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such person for an accounting of profits made from the purchase or sale by
such person of securities of the corporation pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or
similar provisions of any federal, state or local statutory law; (iii) if a
court of competent jurisdiction finally determines that any indemnification
hereunder is unlawful; (iv) for acts or omissions involving intentional
misconduct or knowing and culpable violation of law; (v) for acts or omissions
that the director or officer believes to be contrary to the best interests of
the corporation or its shareholders or that involve the absence of good faith
on the part of the director or officer; (vi) for any transaction for which the
director or officer derived an improper personal benefit; (vii) for acts or
omissions that show a reckless disregard for the director's or officer's duty
to the corporation or its shareholders in circumstances in which the director
or officer was aware, or should have been aware, in the ordinary course of
performing his or her duties, of a risk of serious injury to the corporation
or its shareholders; (viii) for acts or omissions that constitute an unexcused
pattern of inattention that amounts to an abdication of the director's or
officer's duties to the corporation or its shareholders; (ix) for costs,
charges, expenses, liabilities and losses arising under Section 310 or 316 of
the General Corporation Law of California (the "Law"); and (x) as to
circumstances in which indemnity is expressly prohibited by Section 317 of the
Law. The right to indemnification conferred in this Article shall be a
contract right and shall include the right to be paid by the corporation
expenses incurred in defending any proceeding in advance of its final
disposition; provided, however, that if the Law requires the payment of such
expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, such advances shall be made only upon delivery to
the corporation of an undertaking, by or on behalf of such director or
officer, to repay all amounts to the corporation if it shall be ultimately
determined that such person is not entitled to be indemnified.
SECTION 2. INDEMNIFICATION OF EMPLOYEES AND AGENTS
A person who was or is a party or is threatened to be made a party to or is
involved in any proceedings by reason of the fact that he or she is or was an
employee or agent of the corporation or is or was serving at the request of
the corporation as an employee or agent of another enterprise, including
service with respect to employee benefit plans, whether the basis of such
action is an alleged action or inaction in an official capacity or in any
other capacity while serving as an employee or agent, may, subject to the
terms of any agreement between the corporation and such person, be indemnified
and held harmless by the corporation to the fullest extent permitted by
California law and the corporation's Articles of Incorporation, against all
costs, charges, expenses, liabilities and losses (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be
paid in settlement), reasonably incurred or suffered by such person in
connection therewith. The immediately preceding sentence is not intended to
be and shall not be considered to confer a contract right on any employee or
agent (other than directors and officers) of the corporation.
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SECTION 3. RIGHT OF DIRECTORS AND OFFICERS TO BRING SUIT
If a claim under Section 1 of this Article is not paid in full by the
corporation within 30 days after a written claim has been received by the
corporation, the claimant may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall also be entitled to be paid the expense
of prosecuting such claim. Neither the failure of the corporation (including
its Board, independent legal counsel, or its shareholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is permissible in the circumstances because he or she has met the
applicable standard of conduct, if any, nor an actual determination by the
corporation (including its Board, independent legal counsel, or its
shareholders) that the claimant has not met the applicable standard of
conduct, shall be a defense to the action or create a presumption for the
purpose of an action that the claimant has not met the applicable standard of
conduct.
SECTION 4. SUCCESSFUL DEFENSE
Notwithstanding any other provision of this Article, to the extent that a
director or officer has been successful on the merits or otherwise (including
the dismissal of an action without prejudice or the settlement of a proceeding
or action without admission of liability) in defense of any proceeding
referred to in Section 1 or in defense of any claim, issue or matter therein,
he or she shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred in connection therewith.
SECTION 5. NON-EXCLUSIVITY OF RIGHTS
The right to indemnification provided by this Article shall not be exclusive
of any other right which any person may have or hereafter acquire under any
statute, bylaw, agreement, vote of shareholders or disinterested directors or
otherwise.
SECTION 6. INSURANCE
The corporation may maintain insurance, at its expense, to protect itself and
any director, officer, employee or agent of the corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the corporation would have the
power to indemnify such person against such expense, liability or loss under
the law.
SECTION 7. EXPENSES AS A WITNESS
To the extent that any director, officer, employee or agent of the corporation
is by reason of such position, or a position with another entity at the
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request of the corporation, a witness in any action, suit or proceeding, he or
she shall be indemnified against all costs and expenses actually and
reasonably incurred by him or her on his or her behalf in connection
therewith.
SECTION 8. INDEMNITY AGREEMENTS
The corporation may enter into agreements with any director, officer, employee
or agent of the corporation providing for indemnification to the fullest
extent permissible under the law and the corporation's Articles of
Incorporation.
SECTION 9. SEPARABILITY
Each and every paragraph, sentence, term and provision of this Article is
separate and distinct so that if any paragraph, sentence, term or provision
hereof shall be held to be invalid or unenforceable for any reason, such
invalidity or unenforceability shall not affect the validity or
unenforceability of any other paragraph, sentence, term or provision hereof.
To the extent required, any paragraph, sentence, term or provision of this
Article may be modified by a court of competent jurisdiction to preserve its
validity and to provide the claimant with, subject to the limitations set
forth in this Article and any agreement between the corporation and claimant,
the broadest possible indemnification permitted under applicable law.
SECTION 10. EFFECT OF REPEAL OR MODIFICATION
Any repeal or modification of this Article shall not adversely affect any
right of indemnification of a director or officer existing at the time of such
repeal or modification with respect to any action or omission occurring prior
to such repeal or modification."
ARTICLE IX
CHAIRMAN OF THE BOARD
SECTION 1. If there shall be a Chairman of the Board of Directors, he shall,
when present, preside at all meetings of the stockholders and the Board of
Directors, and perform such other duties as the Bylaws or the Board of
Directors shall require of him.
ARTICLE X
CHIEF EXECUTIVE OFFICER; OTHER EXECUTIVE OFFICERS
SECTION 1. The Board of Directors shall, at their first regular meeting,
elect such officers as are required by Article VI hereof and such additional
officers authorized by Article VI hereof as the Board, in its discretion, may
choose to elect. If at any time the Chief Executive Officer shall be unable to
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act, the President (if there shall be one who is not also the Chief Executive
Officer) shall act in his place and perform his duties; if the President or
next most senior officer is unable to perform such duties, then the vice
presidents, in such sequence as the Board of Directors may specify, shall act.
If all the foregoing shall be unable to act, the senior officer among them
shall appoint some other person in whom shall be vested, for the time being,
all the duties and functions of Chief Executive Officer, to act until the
Board of Directors can be convened and elect appropriate officers. The Chief
Executive Officer (or person acting as such) shall:
1. Preside (if there shall be no Chairman of the Board of Directors or in his
absence) over all meetings of the shareholders and directors;
2. Sign in behalf of the corporation contracts and other instruments in
writing within the scope of his authority or if, when, and as directed so to
do by the Board of Directors, but nothing herein shall limit the power of the
Board of Directors to authorize such contracts and other instruments in
writing to be signed by any other officer or person or limit the power of the
Chief Executive Officer to delegate his authority in any such matter to
another officer or other officers of the corporation. The Chief Executive
Officer or any other officer specified by the Board of Directors may sign
certificates of stock as provided in Article XIII hereof;
3. Delegate duties and responsibilities to any other officers and/or
employees of the corporation in any manner not prohibited by these Bylaws or
by the Board of Directors, and change such duties and responsibilities so
delegated from time to time at will;
4. Call the directors together when he deems it necessary, and have, subject
to the advice of the directors, direction of the affairs of the corporation;
and
5. Generally discharge such other duties as may be required of him by the
Bylaws of the corporation.
ARTICLE XI
SECRETARY
SECTION 1. The Board of Directors shall elect a Secretary:
1. It shall be the duty of the Secretary to keep a record of proceedings of
the Board of Directors and of the shareholders, and to keep the corporate seal
of the corporation. He shall be responsible for maintaining proper records
showing the number of shares of stock of all classes and series issued and
transferred by any shareholder, and the dates of such issuance and transfer;
11<PAGE>
<PAGE>
2. Whenever it is provided in these Bylaws that notice shall be given either
of regular or special meetings of the shareholders, regular or special
meetings of the directors, or otherwise, such notice shall be given by the
Secretary or by the Chief Executive Officer or by any person designated by
either of them, or by any authorized person who shall have signed the call for
such meeting. Any notice which the Secretary may give or serve, or act
required to be done by him, may with like effect be given or served or done by
or under the direction of an Assistant Secretary;
3. The Secretary shall discharge such other duties as pertain to his office
or which may be prescribed by the Board of Directors.
ARTICLE XII
TREASURER
SECTION 1. The Treasurer shall receive and keep all the funds of the
corporation and pay them out only on checks or otherwise, as directed by the
Board of Directors; provided, however, that the Board of Directors may provide
for a depository of the funds of the corporation, and may by resolution
prescribe the manner in which said funds shall be drawn from said depository.
ARTICLE XIII
CERTIFICATES OF STOCK
SECTION 1. Certificates of stock shall be of such form and device as the
Board of Directors may direct, and shall be signed by the genuine or facsimile
signatures of the Chairman and Chief Executive Officer or the President or any
authorized Vice President and the Secretary or an Assistant Secretary. Each
certificate shall express on its face its number, date of issuance, the number
of shares for which and the person to whom it is issued, the kind of shares
represented by said certificate, and such other matters as may be required by
law. Certificates of stock may be issued prior to full payment, in harmony
with all permits issued by regulatory authorities having jurisdiction in the
premises, or as is otherwise allowed by law, but any certificate issued prior
to full payment must show on its face what amount has been paid thereon.
ARTICLE XIV
TRANSFER OF STOCK
SECTION 1. Shares of stock of the corporation may be transferred at any time
by the holders, or by power of attorney, or by their legal representative, by
endorsement on the certificate of stock, but no transfer is valid until the
surrender of the endorsed certificate. A surrendered certificate shall be
12<PAGE>
<PAGE>
delivered up for cancellation before a new one is issued in lieu thereof, and
the Secretary shall preserve the certificate so canceled or a suitable record
thereof. If, however, a certificate is lost or destroyed, the Board of
Directors may order a new certificate issued as is by law required or
permitted.
ARTICLE XV
VOTING
SECTION 1. At all corporate meetings, each shareholder, either in person or
by proxy, shall be entitled to as many votes as he owns shares of stock;
however, every shareholder entitled to vote at any election for directors
shall have the right to cumulate his votes.
SECTION 2. PROXIES
Every person entitled to vote or execute consents shall have the right to do
so either in person or by one or more agents authorized by a written proxy
executed by such person or his duly authorized agent and filed with the
Secretary of the corporation; provided that no such proxy shall be valid after
the expiration of eleven (11) months from the date of its execution, unless
the person executing it specifies therein the length of time for which such
proxy is to continue in force, which in no case shall exceed seven (7) years
from the date of its execution.
ARTICLE XVI
INDEBTEDNESS
SECTION 1. The Board of Directors shall have power to incur indebtedness, and
the terms and amount thereof shall be entered in the minutes. The Board of
Directors shall have the power to secure said indebtedness, or any obligation
or obligations of the corporation, by pledge, mortgage, deed of trust, or
other security given upon any property owned by it or in which it has any
interest.
ARTICLE XVII
REGISTRAR AND/OR TRANSFER AGENT
SECTION 1. The Board of Directors may designate and appoint one or more
registrars and/or transfer agents for the registration of the stock of the
corporation, and make such rules and regulations for the registrations of
stock at the office of such registrars and/or transfer agents as may to the
Board of Directors seem desirable. The corporation may act as its own
transfer agent, at the direction of the Board of Directors. The Board of
Directors may, in its discretion, fix a transfer fee for transfer of stock
certificates.
13<PAGE>
<PAGE>
ARTICLE XVIII
MISCELLANEOUS
SECTION 1. MEETINGS. NOTICE. WHEN CONCLUSIVE.
An entry made in the minutes of the directors or shareholders, pursuant to
resolution or recital, to the effect that the notice of such meeting required
by these Bylaws to be given has been given, shall be conclusive upon the
corporation, its directors, shareholders, and all other persons that such
notice has been duly given in proper form and substance to the proper persons
and for the requisite length of time.
ARTICLE XIX
SEAL
SECTION 1. The Board of Directors shall provide a suitable seal containing
the name of the corporation, the years of its creation, and other appropriate
words, and may alter the same at pleasure.
ARTICLE XX
AMENDMENTS TO BYLAWS
SECTION 1. POWER OF SHAREHOLDERS
New Bylaws may be adopted or these Bylaws may be amended or repealed by the
vote of shareholders entitled to exercise a majority of the voting power of
the corporation or by the written assent of such shareholders, except as
otherwise provided by law or by the Articles of Incorporation.
SECTION 2. POWER OF DIRECTORS
Subject to the right of the shareholders as provided in Section 1 of this
Article XX to adopt, amend or repeal Bylaws, the Board of Directors may adopt,
amend or repeal any of the Bylaws of this corporation, except that the powers
of the Board of Directors to change, and/or establish the authorized number of
directors of this corporation shall be as set forth in Article III of these
Bylaws.
- - - - - - - - - - - - - - - - -
14<PAGE>
<PAGE>
I hereby certify that the foregoing is a full, true, and correct copy of the
Bylaws of Southwest Gas Corporation, a California corporation, as in effect on
the date hereof.
WITNESS my hand this 15th day of July, 1997.
__________________________________
George C. Biehl
Senior Vice President/Chief Financial
Officer and Corporate Secretary
15<PAGE>
<PAGE>
EXHIBIT 10
[Conformed Copy]
----------------
==============================================================================
REVOLVING CREDIT AGREEMENT
dated as of
June 12, 1997
among
SOUTHWEST GAS CORPORATION
THE LENDERS FROM TIME TO TIME PARTIES HERETO
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
and
BANK OF MONTREAL
as Syndication Agents
THE INDUSTRIAL BANK OF JAPAN, LTD.,
LOS ANGELES AGENCY
as Co-Agent
and
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH,
as Administrative Agent
==============================================================================<PAGE>
<PAGE>
TABLE OF CONTENTS Page
----------------- ----
ARTICLE I
Definitions
Section 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
(a) Terms Generally . . . . . . . . . . . . . . . . . . . 1
(b) Accounting Terms. . . . . . . . . . . . . . . . . . . 1
(c) Other Terms . . . . . . . . . . . . . . . . . . . . . 2
(d) Ratings Determinations . . . . . . . . . . . . . . . 18
ARTICLE II
The Credit Facility
Section 2.01 Revolving Credit Loans . . . . . . . . . . . . . . . . . . 18
Section 2.02 Borrowing Procedure . . . . . . . . . . . . . . . . . . . 18
Section 2.03 Termination and Reduction of Commitments . . . . . . . . . 19
Section 2.04 Repayment . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.05 Optional Prepayment . . . . . . . . . . . . . . . . . . . 19
Section 2.06 Competitive Loans . . . . . . . . . . . . . . . . . . . . 19
ARTICLE III
Interest and Fees
Section 3.01 Interest Rate Determination; Conversion . . . . . . . . . 23
Section 3.02 Interest on ABR Revolving Loans . . . . . . . . . . . . . 23
Section 3.03 Interest on Eurodollar Loans . . . . . . . . . . . . . . . 23
Section 3.04 Interest on Absolute Rate Competitive Loans . . . . . . . 24
Section 3.05 Interest on Overdue Amounts . . . . . . . . . . . . . . . 25
Section 3.06 Day Counts . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.07 Maximum Interest Rate . . . . . . . . . . . . . . . . . . 25
Section 3.08 Commitment Fees . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE IV
Disbursement and Payment
Section 4.01 Disbursement . . . . . . . . . . . . . . . . . . . . . . . 26
Section 4.02 Method and Time of Payments; Sharing among Lenders . . . . 27
Section 4.03 Compensation for Losses . . . . . . . . . . . . . . . . . 28
Section 4.04 Withholding and Additional Costs . . . . . . . . . . . . . 28
(a) Withholding . . . . . . . . . . . . . . . . . . . . . 28
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<PAGE>
(b) Additional Costs . . . . . . . . . . . . . . . . . . 30
(c) Lending Office Designations . . . . . . . . . . . . . 30
(d) Certificate, Etc. . . . . . . . . . . . . . . . . . . 30
(e) Limitations. . . . . . . . . . . . . . . . . . . . . 31
Section 4.05 Funding Impracticable . . . . . . . . . . . . . . . . . . 31
Section 4.06 Expenses; Indemnity . . . . . . . . . . . . . . . . . . . 31
Section 4.07 Survival . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 4.08 Substitution of a Lender . . . . . . . . . . . . . . . . . 32
ARTICLE V
Representations and Warranties
Section 5.01 Representations and Warranties . . . . . . . . . . . . . . 32
(a) Good Standing and Power . . . . . . . . . . . . . . . 32
(b) Corporate Authorization; No Contravention . . . . . . 33
(c) Governmental Authorization. . . . . . . . . . . . . . 33
(d) Binding Effect. . . . . . . . . . . . . . . . . . . . 33
(e) Litigation. . . . . . . . . . . . . . . . . . . . . . 33
(f) No Default. . . . . . . . . . . . . . . . . . . . . . 34
(g) ERISA Compliance. . . . . . . . . . . . . . . . . . . 34
(h) Use of Proceeds; Margin Regulations . . . . . . . . . 35
(i) Title to Properties . . . . . . . . . . . . . . . . . 35
(j) Taxes . . . . . . . . . . . . . . . . . . . . . . . . 35
(k) Financial Condition . . . . . . . . . . . . . . . . . 36
(l) Environmental Matters . . . . . . . . . . . . . . . . 36
(m) Regulated Entities. . . . . . . . . . . . . . . . . . 37
(n) Labor Relations . . . . . . . . . . . . . . . . . . . 37
(o) Insurance . . . . . . . . . . . . . . . . . . . . . . 37
(p) Full Disclosure . . . . . . . . . . . . . . . . . . . 37
(q) Compliance with Applicable Laws . . . . . . . . . . . 37
(r) Ranking . . . . . . . . . . . . . . . . . . . . . . . 38
Section 5.02 Survival . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE VI
Conditions Precedent
Section 6.01 Conditions to the Availability of the Commitments . . . . 38
(a) This Agreement. . . . . . . . . . . . . . . . . . . . 38
(b) The Revolving Credit Notes. . . . . . . . . . . . . . 38
(c) Evidence of Corporate Action. . . . . . . . . . . . . 38
(d) Opinions of Counsel . . . . . . . . . . . . . . . . . 39
(e) Representations and Warranties; Etc.. . . . . . . . . 39
(f) Other Documents . . . . . . . . . . . . . . . . . . . 39
Section 6.02 Conditions to All Loans . . . . . . . . . . . . . . . . . 39
(a) Borrowing Request . . . . . . . . . . . . . . . . . . 39
-ii-<PAGE>
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(b) No Default. . . . . . . . . . . . . . . . . . . . . . 40
(c) Representations and Warranties; Covenants . . . . . . 40
Section 6.03 Satisfaction of Conditions Precedent . . . . . . . . . . . 40
ARTICLE VII
Covenants
Section 7.01 Affirmative Covenants . . . . . . . . . . . . . . . . . . 40
(a) Financial Statements; Compliance Certificates . . . . 40
(b) Notices . . . . . . . . . . . . . . . . . . . . . . . 41
(c) Preservation of Corporate Existence, Etc. . . . . . . 42
(d) Maintenance of Property . . . . . . . . . . . . . . . 43
(e) Insurance . . . . . . . . . . . . . . . . . . . . . . 43
(f) Payment of Obligations. . . . . . . . . . . . . . . . 43
(g) Compliance with Laws. . . . . . . . . . . . . . . . . 43
(h) Inspection of Property and Books and Records. . . . . 43
Section 7.02 Negative Covenants . . . . . . . . . . . . . . . . . . . . 44
(a) Liens . . . . . . . . . . . . . . . . . . . . . . . . 44
(b) Consolidations and Mergers. . . . . . . . . . . . . . 44
(c) Investments . . . . . . . . . . . . . . . . . . . . . 44
(d) Transactions with Affiliates. . . . . . . . . . . . . 45
(e) Compliance with ERISA . . . . . . . . . . . . . . . . 45
(f) Lease Obligations . . . . . . . . . . . . . . . . . . 45
(g) Restricted Payments . . . . . . . . . . . . . . . . . 45
(h) Change in Business. . . . . . . . . . . . . . . . . . 46
Section 7.03 Financial Covenants . . . . . . . . . . . . . . . . . . . 46
(a) Net Worth . . . . . . . . . . . . . . . . . . . . . . 46
(b) Leverage Ratio. . . . . . . . . . . . . . . . . . . . 46
ARTICLE VIII
Events of Default
Section 8.01 Events of Default . . . . . . . . . . . . . . . . . . . . 46
ARTICLE IX
The Administrative Agent
Section 9.01 The Agency . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 9.02 The Administrative Agent's Duties . . . . . . . . . . . . 49
Section 9.03 Limitation of Liabilities . . . . . . . . . . . . . . . . 49
Section 9.04 The Administrative Agent as a Lender . . . . . . . . . . . 49
Section 9.05 Lender Credit Decision . . . . . . . . . . . . . . . . . . 49
Section 9.06 Indemnification . . . . . . . . . . . . . . . . . . . . . 50
Section 9.07 Successor Administrative Agent . . . . . . . . . . . . . . 50
-iii-<PAGE>
<PAGE>
ARTICLE X
Evidence of Loans; Transfers
Section 10.01 Evidence of Loans . . . . . . . . . . . . . . . . . . . . 51
(a) Revolving Credit Notes. . . . . . . . . . . . . . . . 51
(b) Competitive Bid Notes . . . . . . . . . . . . . . . . 51
Section 10.02 Participations . . . . . . . . . . . . . . . . . . . . . . 51
Section 10.03 Assignments . . . . . . . . . . . . . . . . . . . . . . . 52
Section 10.04 Certain Pledges . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE XI
Miscellaneous
Section 11.01 APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . 52
Section 11.02 WAIVER OF JURY . . . . . . . . . . . . . . . . . . . . . . 52
Section 11.03 Jurisdiction and Venue . . . . . . . . . . . . . . . . . . 53
Section 11.04 Set-off . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 11.05 Confidentiality . . . . . . . . . . . . . . . . . . . . . 53
Section 11.06 Amendments and Waivers . . . . . . . . . . . . . . . . . . 54
Section 11.07 Cumulative Rights; No Waiver . . . . . . . . . . . . . . . 54
Section 11.08 Notices . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 11.09 Separability . . . . . . . . . . . . . . . . . . . . . . . 55
Section 11.10 Parties in Interest . . . . . . . . . . . . . . . . . . . 55
Section 11.11 Execution in Counterparts . . . . . . . . . . . . . . . . 55
-vi-<PAGE>
<PAGE>
SCHEDULES
Schedule I -- Lenders and Commitments
EXHIBITS
Exhibit A -- Form of Borrowing Request for Revolving Credit Loans
Exhibit B-1 -- Form of Borrowing Request for Competitive Loans
Exhibit B-2 -- Form of Competitive Bid
Exhibit B-3 -- Form of Competitive Bid Accept/Reject Letter
Exhibit C -- Form of Conversion Request
Exhibit D-1 -- Form of Revolving Credit Note
Exhibit D-2 -- Form of Competitive Note
Exhibit E -- Form of Opinion of Borrower's Counsel
Exhibit F -- Form of Assignment and Acceptance
Exhibit G -- Form of Confidentiality Agreement
-v-<PAGE>
<PAGE>
REVOLVING CREDIT AGREEMENT, dated as of June 12, 1997, among SOUTHWEST
GAS CORPORATION, a California corporation (the "Borrower"), each of the
lenders from time to time parties to this Agreement (collectively, the
"Lenders"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION and BANK OF
MONTREAL, as Syndication Agents, THE INDUSTRIAL BANK OF JAPAN, LTD., LOS
ANGELES AGENCY as Co-Agent,and UNION BANK OF SWITZERLAND, NEW YORK BRANCH, as
Administrative Agent (the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested the Lenders severally to commit to
lend to the Borrower up to $350,000,000 on a revolving basis for general
corporate purposes;
WHEREAS, the Lenders are willing to make such loans, on the terms and
conditions provided herein;
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
Definitions
Section 1.01 DEFINITIONS.
(a) TERMS GENERALLY. The definitions ascribed to terms in this
Agreement apply equally to both the singular and plural forms of such terms.
Whenever the context may require, any pronoun shall be deemed to include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be interpreted as if followed by the phrase
"without limitation". The phrase "individually or in the aggregate" shall be
deemed general in scope and not to refer to any specific Section or clause of
this Agreement. All references herein to Articles, Sections, Exhibits and
Schedules shall be deemed references to Articles and Sections of, and Exhibits
and Schedules to, this Agreement unless the context shall otherwise require.
The table of contents, headings and captions herein shall not be given effect
in interpreting or construing the provisions of this Agreement. Except as
otherwise expressly provided herein, all references to "dollars" or "$" shall
be deemed references to the lawful money of the United States of America.
(b) ACCOUNTING TERMS. Except as otherwise expressly provided
herein, the term "consolidated" and all other terms of an accounting nature
shall be interpreted and construed in accordance with GAAP, as in effect from
time to time; PROVIDED, HOWEVER, that, for purposes of determining compliance
with any covenant set forth in Article VII, such terms shall be construed in
accordance with GAAP as in effect on the date of this Agreement, applied on a
basis consistent with the construction thereof applied in preparing the
Borrower's audited financial statements referred to in Section 5.01(k). If
there shall occur a change in GAAP which but for the foregoing proviso would
affect the computation used to determine compliance with any covenant set
<PAGE>
<PAGE>
forth in Article VII, the Borrower and the Lenders agree to negotiate in good
faith in an effort to agree upon an amendment to this Agreement that will
permit compliance with such covenant to be determined by reference to GAAP as
so changed while affording the Lenders the protection intended to be afforded
by such covenant prior to such change (it being understood, however, that such
covenant shall remain in full force and effect in accordance with its existing
terms unless and until such amendment shall become effective).
(c) OTHER TERMS. The following terms have the meanings ascribed to
them below or in the Sections of this Agreement indicated below:
"Abr Revolving Loans" means Revolving Credit Loans that bear interest
at a rate or rates determined by reference to the Alternate Base Rate.
"Absolute Rate Competitive Loans" means Competitive Loans that bear
interest at a fixed percentage rate per annum (expressed in the form of a
decimal to no more than four decimal places) specified by the Lender of
such Loan in its Competitive Bid.
"Administrative Agent" means Union Bank of Switzerland, New York
Branch, acting in the capacity of administrative agent for the Lenders, or
any successor administrative agent appointed pursuant to the terms of this
Agreement.
"Administrative Questionnaire" means an administrative details reply
form delivered by a Lender to the Administrative Agent, in substantially
the form provided by the Administrative Agent or the form attached to an
Assignment and Acceptance.
"Affiliate" means, when used with reference to any Person, a Person
(other than a Subsidiary) which directly or indirectly controls, is
controlled by, or is under common control with, such other Person. For
purposes of this definition, "control" (including with correlative
meanings, the terms "controlling," "controlled by" and "under common control
with", as applied to any Person, means the possession, directly or
indirectly of the power to direct or cause the direction of the management
and policies of that Person, whether through the ownership of voting
securities or by contract or otherwise.
"Agreement" means this Revolving Credit Agreement, as it may be
amended, modified or supplemented from time to time.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of:
(i) the rate of interest from time to time publicly announced by
the Administrative Agent in The City of New York as its prime
commercial loan rate in effect on such day; and
(ii) the sum of (a) 1/2 of 1% per annum and (b) the Federal Funds
Rate in effect on such day.
-2-<PAGE>
<PAGE>
The Alternate Base Rate shall change as and when the greater of the
foregoing rates shall change. Any change in the Alternate Base Rate shall
become effective as of the opening of business on the day of such change.
"Applicable Lending Office" means, with respect to a Loan, the
applicable office of the Lender for making such Loan, as specified in
Schedule I or in an Administrative Questionnaire delivered to the
Administrative Agent as the office from which such Lender makes Loans of
the relevant type.
"Applicable Margin" means, at any date and with respect to each
Revolving Credit Loan, the applicable margin set forth below based upon
the ratings applicable, on such date, to the Borrower's senior unsecured
long-term debt:
Applicable Margin
--------------------------
Eurodollar
Loans ABR Loans
---------- ---------
Level I
- -------
Moody's: A3 }
S&P: A- } .275% 0%
Level II
- --------
Moody's: Baa1 }
S&P: BBB+ } .300% 0%
Level III
- ---------
Moody's: Baa2 }
S&P: BBB } .350% 0%
Level IV
- --------
Moody's: Baa3 }
S&P: BBB- } .400% 0%
Level V
- -------
Moody's: Ba1 or lower }
S&P: BB+ or lower } .750% 0%
"Assignee" has the meaning assigned to such term in Section 10.03.
"Assignment and Acceptance" has the meaning assigned to such term in
Section 10.03.
-3-<PAGE>
<PAGE>
"Available Commitment" means, on any day, an amount equal to (i) the
Total Commitment on such day minus (ii) the aggregate outstanding
principal amount of Loans on such day.
"Borrower" has the meaning assigned to such term in the preamble.
"Borrowing Date" means, with respect to any Loan, the Business Day set
forth in the relevant Borrowing Request as the date upon which the
Borrower desires to borrow such Loan.
"Borrowing Request" means a request, substantially in the form of
Exhibit A or Exhibit B-1, as the case may be, by the Borrower for Loans,
which shall specify (i) the requested Borrowing Date, (ii) the aggregate
amount of such Loans, (iii) whether such Loans are to be Revolving Credit
Loans or Competitive Loans, and
(iv) if such Loans are to be Revolving Credit Loans, (a) whether
such Loans are to bear interest initially as ABR Revolving Loans or
Eurodollar Revolving Loans and (b) if applicable, the initial Interest
Period therefor, or
(v) if such Loans are to be Competitive Loans, (a) the
Maturity Date, (b) whether such Competitive Loans are to bear
interest as Eurodollar Competitive Loans or Absolute Rate
Competitive Loans, (c) if such Competitive Loans are Eurodollar
Competitive Loans, the Interest Period therefor which shall not be
limited to the periods the Borrower is permitted to select
pursuant to the definition of "Interest Period" and (d) any other
terms to be applicable to such proposed Competitive Loans.
"Business Day" means any day that is (i) not a Saturday, Sunday or
other day on which commercial banks in the City of New York and California
are authorized by law to close and (ii) with respect to any Eurodollar
Loan, a day on which commercial banks are open for domestic and international
business (including dealings in U.S. dollar deposits) in London.
"Capital Expenditures" means, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including
that portion of Capital Leases that is capitalized on the consolidated
balance sheet of the Borrower and its Subsidiaries) by the Borrower and
its Subsidiaries during such period that are included in the property,
plant or equipment reflected in the consolidated balance sheet of the
Borrower and its Subsidiaries.
"Capital Lease" means, as to the Borrower and its Subsidiaries, a
lease of (or other agreement conveying the right to use) real and/or
personal Property, the obligations with respect to which are required to
be classified and accounted for as a capital lease on a balance sheet of
the Borrower or any of its Subsidiaries under GAAP (including Statement of
Financial Accounting Standards No. 13 of the Financial Accounting Standards
Board).
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"Capital Lease Obligations" means, as to the Borrower and its
Subsidiaries, the obligations of the Borrower or any of its Subsidiaries
to pay rent or other amounts under a Capital Lease and, for purposes of
this Agreement, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP (including such
Statement No. 13).
"CERCLA" has the meaning specified in the definition of "Environmental
Laws."
"Change in Control" means the occurrence of either of the following
conditions: (a) any Person or group of associated Persons acting in
concert shall have acquired an aggregate of more than 51% of the
outstanding shares of voting stock of the Borrower, or (b) individuals who
constitute the board of directors of the Borrower on the date hereof (the
"Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to the
date hereof whose election, or nomination for election by the Borrower's
shareholders, was approved by a vote of a majority of the directors
comprising the Incumbent Board (either by a specific vote or by approval
of the proxy statement of the Borrower in which such person is named as a
nominee for director, without objection to such nomination) shall be, for
purposes of this clause (b), considered as though such person were a
member of the Incumbent Board.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" means, with respect to a Lender, the amount set forth
opposite such Lender's name under the heading "Commitment" on Schedule I,
as such amount may be reduced from time to time pursuant to Section 2.03.
"Commitment Fee" has the meaning assigned to such term in Section
3.08.
"Competitive Accept/Reject Notice" has the meaning assigned to such
term in Section 2.06.
"Competitive Bid" means an offer by a Lender to make a Competitive
Loan pursuant to Section 2.06.
"Competitive Bid Rate" means, with respect to any Competitive Bid,
(i) in the case of a Eurodollar Competitive Loan, the Competitive Margin,
and (ii) in the case of a Absolute Rate Competitive Loan, the fixed rate
of interest, at which the Lender making the Competitive Bid offers thereby
to make a Competitive Loan.
"Competitive Loans" has the meaning assigned to such term in
Section 2.06(a).
"Competitive Margin" means, with respect to any Eurodollar Competitive
Loan for any Interest Period, the margin (expressed as a percentage rate
per annum in the form of a decimal to no more than four decimal places) to
be added to or subtracted from LIBOR, in order to determine the interest
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rate applicable to such Loan during such Interest Period, as specified in
the related Competitive Bid and the Competitive Accept/Reject Notice.
"Competitive Notes" means the promissory notes of the Borrower,
substantially in the form of Exhibit D-2.
"Competitive Rate" means, with respect to any Absolute Rate
Competitive Loan, the fixed rate of interest (expressed as a percentage
rate per annum in the form of a decimal to no more than four decimal
places) for such Loan, as specified in the related Competitive Bid and
Competitive Accept/Reject Notice.
"Confidential Information" means information delivered to the
Administrative Agent for the Lenders or to a Lender by or on behalf of the
Borrower in connection with the transactions contemplated by or otherwise
pursuant to this Agreement that is confidential or proprietary in nature
at the time it is so delivered or information obtained by the
Administrative Agent or such Lender in the course of its review of the
books or records of the Borrower contemplated herein; PROVIDED that such
term shall not include information (i) that was publicly known or
otherwise known to the Administrative Agent or such Lender prior to the
time of such disclosure, (ii) that subsequently becomes publicly known
through no act or omission by the Administrative Agent or such Lender or
any Person acting on the Administrative Agent or such Lender's behalf,
(iii) that otherwise becomes known from a third party who the
Administrative Agent or such Lender did not know or have reason to believe
received such information in a restricted or unlawful manner or (iv) that
constitutes financial information delivered to the Administrative Agent or
such Lender that is otherwise publicly available.
"Contingent Obligation" means, for the Borrower and its Subsidiaries,
any direct or indirect Contractual Obligation with respect to any Debt,
lease, dividend, letter of credit or other obligation (the "primary
obligations") of another Person (the "primary obligor"), including, without
limitation, any obligation of the Borrower or any Subsidiary, whether or
not contingent, (a) to purchase, repurchase or otherwise acquire such
primary obligations or any Property constituting direct or indirect
security therefor, or (b) to advance or provide funds (i) for the payment
or discharge of any such primary obligation, or (ii) 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 prior to such obligation being
a stated or determinable amount, or (c) 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 (d) otherwise to assure or hold harmless
the holder of any such primary obligation against loss in respect thereof.
The amount of any Contingent Obligation shall be deemed to be an amount
equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made or, if not stated or
if indeterminable, the maximum reasonably anticipated liability in
respect thereof, except as specified in clause (b)(ii) above.
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"Contractual Obligations" 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.
"Controlled Group" means the Borrower and all Persons (whether or not
incorporated) under common control or treated as a single employer with
the Borrower or any of its Subsidiaries pursuant to Section 414(b), (c),
(m) or (o) of the Code.
"Conversion Date" means, with respect to a Loan, the date on which a
conversion of interest rates on such Loan shall take effect.
"Conversion Request" means a request, substantially in the form of
Exhibit C, by the Borrower to convert the interest rate basis for all or
portions of outstanding Revolving Credit Loans, which shall specify (i)
the requested Conversion Date, which shall be not fewer than three
Business Days after the date of such Conversion Request, (ii) the
aggregate amount of such Revolving Credit Loans, on and after the
Conversion Date, which are to bear interest as ABR Loans or Eurodollar
Loans and (iii) the term of the Interest Periods therefor, if any.
"CPUC" means the California Public Utilities Commission (or any
successor Governmental Authority).
"Credit Documents" means this Agreement and the Notes.
"Debt" means, with respect to the Borrower and its Subsidiaries,
(a) all obligations for borrowed money, including interest or fees of any
nature related to the borrowing of money accrued but unpaid, (b) all
obligations under letters of credit, bills of exchange or bankers
acceptances, (c) all obligations representing the deferred purchase price
of Property or services which in accordance with GAAP would be shown on
the balance sheet as a liability, (d) all obligations, whether or not
assumed by or with recourse to such Person, secured by Liens upon, or
payable out of the proceeds or production from, assets owned by such
Person, (e) all Capital Lease Obligations, and (f) all Contingent
Obligations.
"Default" means any event or circumstance which, with the giving of
notice or the passage of time, or both, would be an Event of Default.
"Effective Date" has the meaning assigned to such term in
Section 6.01.
"Environmental Claim" 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,
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restitution, civil or criminal penalties, injunctive relief, or other type
of relief, resulting from or based upon (a) the presence, placement,
discharge, emission or release (including intentional and unintentional,
negligent and non-negligent, sudden or non-sudden, accidental or
non-accidental placement, spills, leaks, discharges, emissions or releases) of
any hazardous material at, in or from Property, whether or not owned by
the Borrower, or (b) any other circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law.
"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 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 and the Toxic Substances Control
Act.
"ERISA" means the Employee Retirement Income Security Act of 1974 and
any regulation promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower or any Subsidiary of
the Borrower within the meaning of Section 414(b), 414(c) or 414(m) of the
Code.
"ERISA Event" means (a) a Reportable Event with respect to a Qualified
Plan or a Multiemployer Plan; (b) a withdrawal by any member of the
Controlled Group from a Qualified 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); (c) a complete or partial withdrawal by any
member of the Controlled Group from a Multiemployer Plan; (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 Qualified Plan or Multiemployer
Plan subject to Title IV of ERISA; (e) a failure to make required
contributions to a Qualified Plan or Multiemployer Plan; (f) 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 Qualified Plan or Multiemployer Plan; (g) the
imposition of any liability under Title IV of ERISA, other than PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon any
member of the Controlled Group; (h) an application for a funding waiver or
an extension of any amortization period pursuant to Section 412 of the
Code with respect to any Qualified Plan; (i) any member of the Controlled
Group engaging in or otherwise becoming liable for a non-exempt prohibited
transaction; or (j) a violation of the applicable requirements of Section
404 or 405 of ERISA or the exclusive benefit rule under Section 401(a) of
the Code by any fiduciary with respect to any Qualified Plan for which the
Borrower or any of its Subsidiaries may be directly or indirectly liable.
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"Eurodollar Competitive Loans" means Competitive Loans that bear
interest by reference to LIBOR and a Competitive Margin.
"Eurodollar Loans" means, collectively, Eurodollar Revolving Loans and
Eurodollar Competitive Loans.
"Eurodollar Revolving Loans" means Revolving Credit Loans that bear
interest at a rate or rates determined by reference to LIBOR.
"Eurodollar Reserve Percentage" means, for any day, the percentage
prescribed by the Federal Reserve Board for determining the maximum
reserve requirement (including any marginal, supplemental or emergency
reserve requirements) on such day for a member bank of the Federal Reserve
System in respect of "Eurocurrency Liabilities" (as defined in Regulation
D of the Federal Reserve Board (or any successor regulation), as amended
from time to time).
"Event of Default" has the meaning assigned to such term in Section
8.01.
"Excluded Taxes" means all present and future taxes, levies, imposts,
duties, deductions, withholdings, fees, liabilities and similar charges
imposed on or measured by the overall net income of any Lender (or any
office, branch or subsidiary of such Lender) or any franchise taxes, taxes
on doing business or taxes measured by capital or net worth imposed on any
Lender (or any office, branch or subsidiary of such Lender), in each case
imposed by the United States of America or any political subdivision or
taxing authority thereof or therein, or taxes on or measured by the
overall net income of any office, branch or subsidiary of a Lender or any
franchise taxes, taxes imposed on doing business or taxes measured by
capital or net worth imposed on any office, branch or subsidiary of such
Lender, in each case imposed by any foreign country or subdivision thereof
in which such Lender's principal office or Eurodollar Lending Office is
located.
"Federal Funds Rate" means, for any day, the rate per annum (rounded,
if necessary, to the next greater 1/16 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day; PROVIDED that (i) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day, and (ii) if no such
rate is so published on such next succeeding Business Day, then the
Federal Funds Rate for such day shall be the average rate quoted to the
Administrative Agent on such day on such transactions, as determined by
the Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System (or any successor Governmental Authority).
"Funded Debt" means, for the Borrower and its Subsidiaries, (a) all
obligations for borrowed money, (b) all obligations representing the
deferred purchase price of Property or services which in accordance with
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GAAP would be shown on a balance sheet of such Person as a liability due
more than 12 months from the date of the occurrence or evidenced by a note
or similar instrument, (c) all Capital Lease Obligations, (d) all
Contingent Obligations and (e) Preferred Securities with an aggregate
stated liquidation amount in excess of 7.5% of Total Capitalization.
"GAAP" means generally accepted accounting principles, as set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entities as may be approved by a
significant segment of the accounting profession of the United States of
America.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Hazardous Materials" means all those substances which are regulated
by, or which may form the basis of liability under, any Environmental Law,
including all substances identified under any Environmental Law as a
pollutant, contaminant, waste, solid waste, hazardous waste, hazardous
constituent, special waste, hazardous substance, hazardous material, or
toxic substance, or petroleum or petroleum derived substance or waste.
"Indemnitee" has the meaning assigned to such term in Section 4.06.
"Interest Period" means, with respect to any Eurodollar Loan, each
one, two, three or six-month period, or if made available by all Lenders,
periods of seven to thirty-one days, such period being the one selected by
the Borrower pursuant to Section 2.02 or 3.01 and commencing on the date
such Loan is made or at the end of the preceding Interest Period, as the
case may be; PROVIDED, HOWEVER, that:
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next Business Day, unless
such Business Day falls in another calendar month, in which case such
Interest Period shall end on the next 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, subject to clause (iii) below, end on the last Business
Day of a calendar month; and
(iii) any Interest Period that would otherwise end after the
Termination Date then in effect shall end on the Termination Date.
"Investments" means any direct or indirect purchase or acquisition, or
any commitment therefor, of any capital stock, equity interest, assets,
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obligations or other securities of or any interest in, any Person, or any
advance (other then advances to employees for expenses incurred in the
ordinary course of business), loan, extension of credit or capital
contribution to, or any other investment in, any Person including, without
limitation, any Affiliates of such Person.
"IRS" means the Internal Revenue Service.
"Lease Obligations" means, as of the date of any determination
thereof, for the Borrower and its Subsidiaries the aggregate rental
commitments under leases for real and/or personal Property (net of income
received or receivable (if no default), from subleases thereof, but
including taxes, insurance, maintenance and similar expenses which the
lessee is obligated to pay under the terms of said leases), whether or not
such obligations are reflected as liabilities or commitments on a balance
sheet of the Borrower or any Subsidiary or in the notes thereto,
excluding, however, Capital Lease Obligations.
"Lenders" has the meaning assigned to such term in the preamble.
"LIBOR" means, with respect to any Interest Period, the rate per annum
determined by the Administrative Agent to be the offered rate for dollar
deposits with a term comparable to such Interest Period that appears on
the display designated as Page 3750 on the Dow Jones Telerate Service (or
such other page as may replace such page on such service, or on another
service designated by the British Bankers' Association, for the purpose of
displaying the rates at which dollar deposits are offered by leading banks
in the London interbank deposit market) at approximately 11:00 A.M.,
London time, on the second Business Day preceding the first day of such
Interest Period. If such rate does not appear on such page, "LIBOR" shall
mean the arithmetic mean (rounded, if necessary, to the next higher 1/16
of 1%) of the respective rates of interest communicated by the LIBOR
Reference Banks to the Administrative Agent as the rate at which U.S.
dollar deposits are offered to the LIBOR Reference Banks by leading banks
in the London interbank deposit market at approximately 11:00 A.M., London
time, on the second Business Day preceding the first day of such Interest
Period in an amount substantially equal to the respective LIBOR Reference
Amounts for a term equal to such Interest Period.
"LIBOR Reference Amount" means, with respect to any LIBOR Reference
Bank and Interest Period, the amount of the Eurodollar Loan of the Lender
which is, or is affiliated with, such LIBOR Reference Bank, scheduled to
be outstanding during that Interest Period (without taking into account
any assignment or participation and rounded up to the nearest integral
multiple of $1,000,000) or, in the case of Eurodollar Competitive Loans
which are not being made by such LIBOR Reference Bank, $5,000,000.
"LIBOR Reference Bank" means each of Union Bank of Switzerland, Bank
of America National Trust and Savings Association and Bank of Montreal;
provided that if any such LIBOR Reference Bank assigns its Commitment or
all its Loans to an unaffiliated institution, such Person shall be
replaced as a LIBOR Reference Bank by the Administrative Agent's
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appointment, in consultation with the Borrower and with the consent of the
Required Lenders, of another bank which is a Lender (or an Affiliate of a
Lender).
"Lien" means any voluntary or involuntary mortgage, assignment,
pledge, security interest, encumbrance, lien, claim or charge of any kind
on or with respect to, or any preferential arrangement with respect to the
payment of any obligations with the proceeds or from the production of,
any asset of any kind, including, without limitation, any agreement to
give any of the foregoing, any conditional sale or other title retention
agreement or any lease in the nature thereof.
"Loans" means, collectively, Revolving Credit Loans and Competitive
Loans.
"Margin Stock" means "margin stock" as such term is defined in
Regulations G, T, U or X of the Federal Reserve Board.
"Material Adverse Effect" means a change, or announcement of a change,
which would reasonably be expected, immediately or with the passage of
time, to result in a material adverse change in, or a material adverse
effect upon, any of (i) the operations, business, Properties, condition
(financial or otherwise) or prospects of the Borrower or the Borrower and
its Subsidiaries taken as a whole, (ii) the ability of the Borrower timely
to perform any of its material obligations, or of the Lenders to exercise
any remedy, under any Credit Document or (iii) the legality, validity,
binding nature or enforceability of any Credit Document.
"Maturity Date" means, with respect to a Competitive Loan, the date
for repayment of such Competitive Loan, which date shall be not less than
seven days after the Borrowing Date and not more than (i) 180 days after
the Borrowing Date, in the case of an Absolute Rate Competitive Loan, or
(ii) six months after the Borrowing Date, in the case of a Eurodollar
Competitive Loan, and in any event shall not be later than the Termination
Date in effect on the Borrowing Date.
"Moody's" means Moody's Investors Service, Inc. and any successor
thereto that is a nationally recognized rating agency.
"Multiemployer Plan" means a "multiemployer plan" (within the meaning
of Section 4001(a)(3) of ERISA) and to which any member of the Controlled
Group makes, is making, or is obligated to make contributions or has made,
or been obligated to make, contributions.
"Net Worth" means the amount of (a) Borrower's common shareholders'
equity determined in accordance with GAAP, plus (b) preferred and
preference stock, plus (c) Preferred Securities with an aggregate stated
liquidation amount of 7.5% or less of Total Capitalization.
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"Notice of Lien" means any "notice of lien" or similar document filed
or recorded with any court, registry, recorder's office, central filing
office or Governmental Authority for the purpose of evidencing, creating,
perfecting or preserving the priority of a Lien securing obligations owing
to a Governmental Authority.
"Obligations" means the Loans and any other liability or duty owing by
the Borrower to the Administrative Agent or any Lender or Indemnitee
hereunder.
"Participant" has the meaning assigned to such term in Section 10.02.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor Governmental Authority).
"Pension Plan" means a Plan that (i) is an employee pension benefit
plan, as defined in Section 3(3) of ERISA (other than a Multiemployer
Plan) and (ii) is subject to the provisions of Title IV of ERISA or is
subject to the minimum funding standards under Section 412 of the Code.
"Permitted Investments" means Investments made by the Borrower and its
Subsidiaries in the ordinary course of business as presently conducted or
transactions permitted by Section 7.02(b); PROVIDED that the Borrower may
only make cash Investments in (a) U.S. Government and agency securities;
(b) money market funds (rated AA or A-1 or better by S&P and Aaa or P-1 or
better by Moody's; (c) municipal securities (rated within the top two
ratings by S&P and Moody's; (d) repurchase agreements with reputable
financial institutions fully secured by collateral consisting of
securities described in clauses (a) and (b) above having a market value at
least equal to 102% of the amount so invested; (e) bankers' acceptances
issued by a bank rated Aa or better by Moody's or rated AA or better by
S&P and eligible for purchase by a Federal Reserve Bank; (f) interest-bearing
demand or time deposits (including certificates of deposit) in
banks and savings and loan associations, provided such deposits are (i)
secured at all times, in the manner and to the extent provided by law, by
collateral consisting of securities described in clauses (a) and (b) above
having a market value of no less than 102% of the amount of moneys so
invested or (ii) fully insured by federal deposit insurance; (g) shares of
any "regulated investment company" within the meaning of Section 851(a) of
the Code, the assets of which consist only of securities or investments
described in clauses (a) through (f) above; (h) commercial paper
(including both non-interest-bearing discount obligations and interest-bearing
obligations payable on demand or on a specified date not more than
one year after the date of issuance thereof) which have been rated at
least A-1 by S&P and at least P-1 by Moody's at the time of such
investment; (i) other obligations of corporations which have been rated at
least AA by S&P and at least Aa by Moody's at the time of such investment;
(j) open ended mutual funds, as regulated by Rule 2a-7 under the
Investment Company Act of 1940 and whose net asset value remains a
constant $1 a share; (k) investments directed by the Borrower in
conjunction with industrial development revenue bonds, and
(l) Subsidiaries, Affiliates and transactions permitted by Section 7.02(b).
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"Permitted Liens" means any of the following:
(a) Liens on any Property acquired, construed, or improved by the
Borrower or its Subsidiaries after the Effective Date that are created or
assumed contemporaneously with, or within 120 days after, such acquisition
or completion of the construction or improvement, or within six months
thereafter pursuant to a firm commitment for financing arranged with a
lender or investor within such 120-day period, to secure or provide for
the payment of all or any part of the purchase price of such Property or
the cost of such construction or improvement incurred after the Effective
Date or, in addition to Liens contemplated by clauses (b) and (c) below,
Liens on any Property existing at the time of acquisition thereof,
provided that the Liens shall not apply to any Property theretofore owned
by the Borrower or its Subsidiaries other than, in the case of any such
construction or improvement, any theretofore unimproved Property on which
the Property so constructed or the improvement is located;
(b) Existing Liens on any Property or indebtedness of a corporation
that is merged with or into or consolidated with the Borrower or its
Subsidiaries or becomes a Subsidiary; provided that the Liens shall not
apply to any Property theretofore owned by the Borrower or its
Subsidiaries;
(c) Liens in favor of the United States of America, any state or
any foreign country or any department, agency or instrumentality or
political subdivision of any such jurisdiction to secure partial,
progress, advance or other payment pursuant to any contract or statute or
to secure any indebtedness incurred for the purpose of financing all or
any part of the purchase price or cost of constructing or improving the
Property subject to such Liens, including, without limitation, Liens to
secure debt of the pollution control or industrial revenue bond type;
(d) Liens on current assets of the Borrower or its Subsidiaries to
secure loans to the Borrower or its Subsidiaries which mature within 12
months from the creation thereof and which are made in the ordinary course
of business;
(e) Liens on any Property (including any natural gas, oil or other
mineral property of the Borrower or its Subsidiaries to secure all or part
of the cost of exploration or drilling for or development of oil or gas
reserves or laying a pipeline or to secure debt incurred to provide funds
for any such purpose;
(f) Any Lien existing on Property of the Borrower or its
Subsidiaries on the Effective Date;
(g) Liens on moneys or U.S. Government Obligations deposited
pursuant to Article Thirteen of the Borrower's July 15, 1996 Indenture;
(h) Liens for the sole purpose of extending, renewing or replacing,
in whole or in part, Liens securing debt of the type referred to in the
foregoing clauses (a) through (g), inclusive, or this clause (h);
PROVIDED, however, that the principal amount of debt so secured at the
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time of such extension, renewal or replacement shall not be increased, and
that such extension or replacement shall be limited to all or part of the
Property or indebtedness which secured the Lien so extended, renewed or
replaced (plus improvements on such Property);
(i) Carriers, warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the ordinary
course of business which are not delinquent or remain payable without
penalty and which are being contested in good faith and by appropriate
proceedings;
(j) Liens (other than any Lien imposed by ERISA) on Property of the
Borrower or any of its Subsidiaries incurred, or pledges or deposits
required, in connection with workers compensation, unemployment insurance
and other social security legislation;
(k) Liens on Property of the Borrower or any of its Subsidiaries
securing (i) the performance of bids, trade contracts (other than for
borrowed money), leases, statutory obligations, and (ii) obligations on
surety and appeal bonds, and (iii) other obligations of a like nature
incurred in the ordinary course of business;
(l) Licenses, easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business which, in
the aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the Property subject thereto or
interfere with the ordinary conduct of the businesses of the Borrower and
its Subsidiaries;
(m) Liens on the Property of a Subsidiary other than a Significant
Subsidiary which could not reasonably be expected to have a Material
Adverse Effect;
(n) Intellectual property licenses;
(o) Any attachment or judgment Lien not constituting an Event of
Default under Section 8.1(e); and
(p) Leases or subleases granted to others not interfering in any
material respect with the ordinary conduct of the business of the Borrower
and UCC financing statements relating solely thereto.
"Person" means any individual, sole proprietorship, partnership,
limited liability company, joint venture, trust, unincorporated
organization, association, corporation, institution, public benefit
corporation, entity or government (whether federal, state, county, city,
municipal or otherwise, including any instrumentality, division, agency,
body or department thereof).
"Plan" means an employee benefit plan (as defined in Section 3(a) of
ERISA) which the Borrower or any member of the Controlled Group sponsors
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or maintains or to which the Borrower or member of the Controlled group
makes or is obligated to make contributions, and includes any
Multiemployer Plan or Qualified Plan.
"Preferred Securities" means any preferred securities issued by a
financing entity (i.e., partnership, trust, limited liability company,
etc.) used exclusively to raise capital for the Borrower having the
following structural characteristics: (a) the financing entity is
capitalized by a nominal equity investment from the Borrower and the
remainder through preferred securities issued by the financing entity,
(b) the financing entity lends the proceeds from the issuance of preferred
securities to the Borrower in exchange for subordinated debt securities
(which debt securities are subordinated in all respects to the Funded Debt
of the Borrower, except for Funded Debt which by its terms is expressly
subordinated to or pari passu with such debt securities), (c) the Borrower
makes periodic interest payments (associated with the subordinated debt
securities) to the financing entity which, in turn, are used to make
corresponding payments to holders of the preferred securities of the
financing entity, (d) the subordinated debt securities issued by the
Borrower and corresponding preferred securities issued by the financing
entity have a maturity of at least thirty years, (e) interest payments on
the subordinated debt securities may be deferred at the Borrower's
discretion for one or more consecutive periods of up to five years, which
would result in a corresponding deferral of payments to holders of the
preferred securities, plus accrual of interest thereon, and (f) the
subordinated debt securities and corresponding preferred securities may
not be redeemed for a period of five years from the date of issuance other
than as a result of a tax or other special event.
"Prescribed Forms" has the meaning assigned to such term in Section
4.04(a).
"Property" means all types of real, personal, tangible, intangible or
mixed property.
"Pro Rata Share" means, with respect to any Lender at any time of
determination, in relation to Revolving Credit Loans, the proportion of
such Lender's Commitment to the Total Commitment then in effect or, after
the Termination Date, the proportion of such Lender's Revolving Credit
Loans to the aggregate amount of Revolving Credit Loans then outstanding.
"Qualified Plan" means a pension plan (as defined in Section 3(2) of
ERISA) intended to be tax-qualified under Section 401(a) of the Code and
which any member of the Controlled Group sponsors, maintains, or to which
it makes 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 period covering
at least five (5) plan years, but excluding any Multiemployer Plan.
"Required Lenders" means, at any date of determination, Lenders having
at least 66 2/3% of the Total Commitment then in effect or, if the Total
Commitment has been cancelled or terminated, holding at least 66 2/3% of
the aggregate unpaid principal amount of the Loans then outstanding.
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"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.
"Responsible Officer" means the chief executive officer, president,
chief financial officer, chief accounting officer, treasurer or any vice
president, senior vice president or executive vice president of the
Borrower.
"Revolving Credit Loans" has the meaning assigned to such term in
Section 2.01.
"Revolving Credit Notes" means the promissory notes of the Borrower
substantially in the form of Exhibit D-1.
"SEC" means the Securities and Exchange Commission (or any successor
Governmental Authority).
"S&P" means Standard & Poor's Ratings Group and any successor thereto
that is a nationally recognized rating agency.
"Significant Subsidiary" means any Subsidiary of the Borrower having
10% or more of the total assets of the Borrower and its Subsidiaries on a
consolidated basis as of the end of any fiscal quarter or generating 10%
or more of the income of the Borrower and its Subsidiaries on a
consolidated basis during the most recently completed four fiscal
quarters.
"Subsidiary" means any corporation, association, partnership, joint
venture or other business entity of which the Borrower and/or any
subsidiary of the Borrower either (a) in respect of a corporation, owns
more than 50% of the outstanding stock having ordinary voting power to
elect a majority of the board of directors or similar managing body,
irrespective of whether or not at the time the stock of any class or
classes shall or might have voting power by reason of the happening of any
contingency, or (b) in respect of an association, partnership, joint
venture or other business entity, is the sole general partner or is
entitled to share in more than 50% of the profits, however determined.
"Taxes" has the meaning assigned to such term in Section 4.04(a).
"Termination Date" means June 12, 2002.
"Total Capitalization" means Funded Debt PLUS Net Worth.
"Total Commitment" means, on any day, the aggregate Commitment on such
day of all the Lenders.
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"Unfunded Pension Liabilities" means the excess of a Plan's accrued
benefits, as defined in Section 3(23) of ERISA, over the current value of
that Plan's assets, as defined in Section 3(26) of ERISA.
"Unsecured Debt" means all Debt which has not been secured by a pledge
of any real or personal property.
"Unused Commitment" means, with respect to a Lender on any day, such
Lender's Commitment in effect on such day, LESS the principal amount of
such Lender's Revolving Credit Loans outstanding on such day.
"Wholly Owned Subsidiary" means, at any time and with respect to any
Person, a Subsidiary, all the shares of stock of all classes of which
(other than directors' qualifying shares) or other ownership interests at
the time are owned directly or indirectly by such Person and/or one or
more other Wholly Owned Subsidiaries of such Person.
(d) Ratings Determinations. Whenever this Agreement requires the
determination of the ratings for the Borrower's senior unsecured long-term
debt, (i) if both Moody's and S&P have not rated the Company's senior
Unsecured Debt, the rating(s) on the Company's unsecured senior subordinated
Debt given by Moody's and S&P plus one rating level will apply, (ii) if there
is a split rating as between Moody's and S&P, the higher rating will apply
except where the difference between the ratings is greater than one rating
level, in which case the average of the two ratings will apply and (iii) if
any rating established by Moody's or S&P shall be changed (other than as a
result of a change in the rating system of either Moody's or S&P), such change
shall be given effect as of the date on which such change is first announced
by the rating agency making such change.
ARTICLE II
The Credit Facility
Section 2.01 REVOLVING CREDIT LOANS. Until the Termination Date,
subject to the terms and conditions of this Agreement, each of the Lenders,
severally and not jointly with the other Lenders, agrees to make revolving
credit loans (collectively, "Revolving Credit Loans") in dollars to the
Borrower in an aggregate principal amount at any one time outstanding not to
exceed such Lender's Commitment. Revolving Credit Loans shall be made on any
Borrowing Date only (i) in the minimum aggregate principal amount of
$5,000,000 or in integral multiples of $1,000,000 in excess thereof, in the
case of Eurodollar Revolving Loans, and in the minimum aggregate amount of
$1,000,000 or in integral multiples of $100,000, in the case of ABR Revolving
Loans and (ii) in a maximum aggregate principal amount not exceeding the
Available Commitment (after giving effect to any repayments or prepayments and
any other borrowings of Loans on such Borrowing Date).
Section 2.02 BORROWING PROCEDURE. In order to borrow Revolving
Credit Loans, the Borrower shall give a Borrowing Request to the
Administrative Agent not later than 12:00 noon, New York time, (i) on the
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Borrowing Date for ABR Revolving Loans and (ii) on the third Business Day
before the Borrowing Date for Eurodollar Revolving Loans. Upon receipt, the
Administrative Agent forthwith shall give notice to each Lender of the
substance of the Borrowing Request. Not later than 2:00 P.M., New York time,
on the Borrowing Date, each Lender shall make available to the Administrative
Agent such Lender's Pro Rata Share of the requested Loans in funds immediately
available at the Administrative Agent's office specified pursuant to
Section 11.08(a). Subject to satisfaction, or waiver by all of the Lenders,
of each of the applicable conditions precedent contained in Article VI, on the
Borrowing Date the Administrative Agent shall make available, in like funds,
to the Borrower the amounts received by the Administrative Agent from the
Lenders.
Section 2.03 TERMINATION AND REDUCTION OF COMMITMENTS. The Borrower
may terminate the Total Commitment, or reduce the amount thereof, by
(i) giving written notice to the Administrative Agent, not later than
5:00 P.M., New York time, on the fifth Business Day prior to the date of
termination or reduction and (ii) paying the amount of the Commitment Fees
accrued through such date of termination or reduction. Reductions of the
Total Commitment shall be in the amount of $5,000,000 or in integral multiples
of $1,000,000 in excess thereof (or, if the amount of the Available Commitment
is less than $5,000,000, then all of such lesser amount), but shall not exceed
the Available Commitment in effect immediately before giving effect to such
reduction. Any termination, and all reductions, of the Total Commitment shall
be permanent.
Section 2.04 REPAYMENT. Revolving Credit Loans shall be repaid,
together with all accrued and unpaid interest thereon, on the Termination
Date.
Section 2.05 OPTIONAL PREPAYMENT. The Borrower may prepay Revolving
Credit Loans bearing interest on the same basis and having the same Interest
Periods, if any, by giving notice to the Administrative Agent not later than
1:00 P.M., New York time, on the third Business Day, in the case of Eurodollar
Revolving Loans, or on the Business Day in the case of ABR Revolving Loans,
preceding the proposed date of prepayment. Each such prepayment of Eurodollar
Revolving Loans shall be in an aggregate principal amount of $5,000,000 or in
integral multiples of $1,000,000 in excess thereof (or, if the aggregate
amount of outstanding Eurodollar Revolving Credit Loans is less than
$5,000,000, then all of such lesser amount), and each prepayment of ABR
Revolving Loans shall be in an aggregate amount of $1,000,000 or in integral
multiples of $100,000 in excess thereof (or, if the aggregate amount of
outstanding ABR Revolving Loans is less than $1,000,000, then all of such
lesser amount), and, in the case of Eurodollar Revolving Loans, together with
the amounts required by Section 4.03, accrued interest on the principal being
prepaid to the date of prepayment. Subject to the terms and conditions of
this Agreement, prepaid Revolving Credit Loans may be reborrowed.
Section 2.06 COMPETITIVE LOANS. (a) Prior to the Termination Date,
the Borrower may request that the Lenders make offers to make competitive
loans in dollars (collectively, "Competitive Loans") on the terms and
conditions hereinafter set forth; PROVIDED, HOWEVER, that (i) the aggregate
principal amount of Competitive Loans that may be borrowed on any Borrowing
Date may not exceed the Available Commitment (after giving effect to any
repayments or prepayments and any other borrowings of Loans on such Borrowing
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Date) and (ii) the aggregate amount of Loans outstanding on any day may not
exceed the Total Commitment (after giving effect, with respect to any day, to
any repayments or prepayments and any other borrowings of Loans on such day).
Each Lender may, but shall have no obligation to, make such offers and the
Borrower may, but shall have no obligation to, accept any such offers, in the
manner set forth in this Section 2.06.
(b) The Borrower may request Competitive Loans under this
Section 2.06 by giving a Borrowing Request to the Administrative Agent, not
later than 12:00 noon, New York time, on (i) the fifth Business Day prior to
the proposed Borrowing Date, in the case of Eurodollar Competitive Loans, and
(ii) on the second Business Day immediately prior to the proposed Borrowing
Date, in the case of Absolute Rate Competitive Loans. The Administrative
Agent shall promptly notify each Lender of each such Borrowing Request
received by it from the Borrower and of the terms contained therein.
(c) Each Lender may, if it so elects, irrevocably offer to make a
Competitive Loan of the requested type to the Borrower at a Competitive Bid
Rate or Rates, as specified by such Lender in accordance with the related
Competitive Loan Request, by submitting a Competitive Bid, in substantially
the form of EXHIBIT B -2, not later than 9:30 A.M., New York time, on (i) the
third Business Day prior to the proposed Borrowing Date, in the case of
Eurodollar Competitive Loans or (ii) the proposed Borrowing Date, in the case
of Absolute Rate Competitive Loans, to the Administrative Agent (which shall
give notice thereof to the Borrower not later than 11:00 A.M., New York time)
specifying the maximum and minimum principal amounts of the Competitive Loan
which such Lender would be willing to make (which amount may, subject to the
proviso to the first sentence of Section 2.06(a), exceed such Lender's
Commitment, but shall be in a principal amount equal to $5,000,000 or in
integral multiples of $1,000,000 in excess thereof, in the case of Eurodollar
Competitive Loans, and in a principal amount equal to $1,000,000 or in
integral multiples of $100,000 in excess thereof, in the case of Absolute Rate
Competitive Loans) the rate or rates of interest therefor or the applicable
margin over LIBOR for the relevant Interest Period, as the case may be, and
any other terms and conditions required by such Lender; PROVIDED that, if the
Administrative Agent, at such time (if any) as it is a Lender, shall elect to
submit a Competitive Bid, the Administrative Agent shall communicate the
substance of its Competitive Bid to the Borrower not later than 15 minutes
prior to the applicable deadline specified above. Lenders may submit multiple
Competitive Bids. If any Lender shall fail to submit a Competitive Bid to the
Administrative Agent before such time, then such Lender shall be deemed to
have elected not to make an offer to make a Competitive Loan. The
Administrative Agent shall (i) disclose the Competitive Bids received to the
Borrower as promptly as reasonably practicable after the deadline stated above
for the submission of Competitive Bids, (ii) maintain all Competitive Bids
until each of them has been disclosed to the Borrower and (iii) provide copies
of all Competitive Bids to the Borrower as soon as practicable after
completion of the bidding process described in this Section 2.06.
(d) Not later than (i) 12:00 noon, New York time, on the third
Business Day prior to the proposed Borrowing Date, in the case of Eurodollar
Competitive Loans or (ii) 1:00 P.M., New York time, on the proposed Borrowing
Date, in the case of Absolute Rate Competitive Loans, the Borrower shall either
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(i) cancel the Borrowing Request by giving the Administrative Agent
notice to that effect or
(ii) accept one or more Competitive Bids, in its sole discretion, by
giving notice to the Administrative Agent of the principal amount of each
Competitive Loan (which principal amount shall be equal to or greater than
the minimum amount offered by the relevant Lender and equal to or less
than the maximum amount offered by such Lender for such Competitive Loan
pursuant to Section 2.06(c)), to be made by each Lender, and reject any
remaining Competitive Bids, by giving the Administrative Agent notice to
that effect; PROVIDED that the aggregate principal amount of such offers
accepted by the Borrower shall be in a principal amount equal to
$5,000,000 or in integral multiples of $1,000,000 in excess thereof, in
the case of Eurodollar Competitive Loans, and in a principal amount equal
to $1,000,000 or in integral multiples of $100,000 in excess thereof, in
the case of Absolute Rate Competitive Loans, each such notice to be in
substantially the form of EXHIBIT B-3 (a "Competitive Accept/Reject
Notice"); PROVIDED that:
(A) the failure by the Borrower to give such notice in a timely
fashion shall be deemed to be a rejection of all the Competitive Bids,
(B) the Borrower shall not accept a Competitive Bid made at a
Competitive Bid Rate if such Borrower has rejected a Competitive Bid (on
the same other terms and conditions) made at a lower Competitive Bid
Rate,
(C) the aggregate principal amount of the Competitive Bids accepted
by the Borrower shall not exceed the principal amount specified in the
Borrowing Request,
(D) if the Borrower shall accept a Competitive Bid or Bids made at
a particular Competitive Bid Rate but the amount of such Competitive Bid
shall cause the total amount of Competitive Bids accepted by the
Borrower to exceed the amount specified in the Borrowing Request, then
the Borrower shall (notwithstanding the minimum bid acceptance amount
required by clause (F) below) accept a portion of such Competitive Bid
or Bids in an amount equal to the amount specified in the Borrowing
Request less the amount of all other Competitive Bids at a lower
Competitive Bid Rate accepted with respect to such Borrowing Request,
which acceptance, in the case of multiple Competitive Bids at such
Competitive Bid Rate, shall be made PRO RATA in accordance with the
amount of each such Competitive Bid at such Competitive Bid Rate,
(E) if the Borrower shall accept Competitive Bids made at a
particular Competitive Bid Rate but shall be restricted by other
conditions hereof from borrowing the principal amount of Competitive
Loans specified in such Borrowing Request in respect of which
Competitive Bids at such Competitive Bid Rate have been made or if the
Borrower shall accept Competitive Bids made at a particular Competitive
Bid Rate but the aggregate amount of Competitive Bids made at such
Competitive Bid Rate shall exceed the amount specified in the Borrowing
Request, then the Borrower shall accept a PRO RATA portion of each
Competitive Bid made at such Competitive Bid Rate aggregating the
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portion of Competitive Loans with respect to which Competitive Bids at
such Competitive Bid Rate have been received; PROVIDED, HOWEVER, that if
the principal amount of Competitive Loans to be so allocated is not
sufficient to enable Competitive Loans to be so allocated to each such
Lender in a principal amount equal to $5,000,000 or in integral
multiples of $1,000,000 in excess thereof, in the case of Eurodollar
Competitive Loans, or in a principal amount equal to $1,000,000 or in
integral multiples of $100,000 in excess thereof, in the case of
Absolute Rate Competitive Loans, the Borrower shall select the Lenders
to be allocated such Competitive Loans in a principal amount equal to
not less than $1,000,000 but may round up allocations to the next higher
integral multiple of $100,000 if necessary, and
(F) except as provided in clauses (D) and (E) above, no Competitive
Bid shall be accepted for a Competitive Loan unless such Competitive
Loan is in a principal amount equal to $5,000,000 or an integral
multiple of $1,000,000 in excess thereof in the case of Eurodollar
Competitive Loans, or in a principal amount equal to $1,000,000 or in
integral multiples of $100,000 in excess thereof, in the case of
Absolute Rate Competitive Loans.
(e) If the Borrower notifies the Administrative Agent that a Borrowing
Notice for Competitive Loans is cancelled, the Administrative Agent shall give
prompt notice thereof to the Lenders.
(f) If the Borrower accepts one or more Competitive Bids, the
Administrative Agent shall promptly give notice (i) to each Lender that
submitted a Competitive Bid of the date and aggregate amount of such
Competitive Loan(s), the Competitive Bid Rate therefor and whether or not any
Competitive Bid made by such Lender has been accepted by the Borrower, (ii) to
each Lender whose Competitive Bid, or any portion thereof, has been accepted
by the Borrower, of the principal amount of the Competitive Loan to be made by
such Lender and the date for repayment thereof, together with the Competitive
Rate or Competitive Margin, as applicable, and any other terms applicable to
such Competitive Loan and (iii) to each Lender of the principal amounts and
Competitive Bid Rates specified in each of the Competitive Bids submitted in
response to the related Borrowing Request.
(g) Following any acceptance by the Borrower and notification by the
Administrative Agent pursuant to Section 2.06(f), and upon satisfaction, or
waiver by the Lenders, of each of the applicable conditions precedent
contained in Article VI, (i) such Lenders shall disburse to the Borrower, on
the specified Borrowing Date, Competitive Loans in the aggregate principal
amount accepted by the Borrower, in immediately available funds, and (ii) the
Borrower shall deliver to each such Lender a duly executed Competitive Note
evidencing its Competitive Loan.
(h) Nothing in this Section 2.06 shall be construed as a right of first
offer in favor of the Lenders or to otherwise limit the ability of the
Borrower to request and accept credit facilities from any Person (including
any Lender).
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(i) Each Competitive Loan shall be repaid, together with all accrued
and unpaid interest thereon, on the applicable Maturity Date.
ARTICLE III
Interest and Fees
Section 3.01 INTEREST RATE DETERMINATION; CONVERSION. (a) Except to
the extent that the Borrower shall request, in a Revolving Credit Request, in
a Conversion Request or in a written election pursuant to Section 3.03(b),
that Revolving Credit Loans (or portions thereof) bear interest as Eurodollar
Loans, Revolving Credit Loans shall bear interest as ABR Revolving Loans.
(b) The Borrower may request, by giving a Conversion Request to the
Administrative Agent, not later than 1:00 P.M., New York time on the third
Business Day prior to the requested Conversion Date, that all or portions of
the outstanding Revolving Credit Loans, in the aggregate principal amount of
$5,000,000 or in integral multiples of $1,000,000 in excess thereof, in the
case of Loans being converted to or continued as Eurodollar Revolving Loans,
and in the aggregate principal amount of $1,000,000 or in integral multiples
of $100,000 in excess thereof (or, if the aggregate principal amount of
outstanding Revolving Loans is less than $1,000,000, then all such lesser
amount), in the case of ABR Revolving Loans, bear interest from and after the
Conversion Date as either ABR Revolving Loans or Eurodollar Revolving Loans;
PROVIDED, HOWEVER, that during the continuance of any Default or Event of
Default that shall have occurred, no Loan (or portion thereof) may be
converted into Eurodollar Revolving Loans. Upon receipt, the Administrative
Agent forthwith shall give notice to each Lender of the substance of each
Conversion Request. Upon payment by the Borrower of the amounts, if any,
required by Section 4.03, on the Conversion Date the Loans or portions thereof
as to which the Conversion Request was made shall commence to accrue interest
in the manner selected by the Borrower therein.
(c) Competitive Loans shall bear interest as Absolute Rate Competitive
Loans or Eurodollar Competitive Loans as determined in accordance with Section
2.06.
Section 3.02 INTEREST ON ABR REVOLVING LOANS. Each ABR Revolving Loan
shall bear interest from the date made until the date repaid, or (if converted
into a Eurodollar Revolving Loan) to (but excluding) the first day of any
relevant Interest Period, as the case may be, payable in arrears on the last
day of each calendar quarter of each year, commencing with the first such date
after the Effective Date, and on the date such Loan is repaid, at a rate per
annum equal to the Alternate Base Rate in effect from time to time, which rate
shall change as and when said Alternate Base Rate shall change.
Section 3.03 INTEREST ON EURODOLLAR LOANS. (a) Each Eurodollar Loan
shall bear interest from the date made until the date repaid or converted to
an ABR Revolving Loan, payable in arrears, with respect to Interest Periods of
three months or less, on the last day of such Interest Period, and with
respect to Interest Periods longer than three months, on the day which is
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three months after the commencement of such Interest Period and on the last
day of such Interest Period, at a rate per annum equal to the sum of (i) the
Applicable Margin, in the case of Eurodollar Revolving Loans, or the
Competitive Margin, in the case of Eurodollar Competitive Loans, and (ii)
LIBOR.
(b) Each Eurodollar Revolving Loan shall become an ABR Revolving Loan
at the end of the Interest Period therefor, unless (i) there shall not have
occurred and be continuing a Default or Event of Default and (ii) not later
than the third Business Day prior to the last day of such Interest Period,
(x) the Borrower shall have delivered to the Administrative Agent an
irrevocable written election of the subsequent Interest Period, in which case
such Eurodollar Revolving Loan shall remain outstanding as a Eurodollar
Revolving Loan, or (y) the Borrower shall have delivered to the Administrative
Agent a Conversion Request with respect thereto, in which case such Eurodollar
Revolving Loan shall be converted in accordance with Section 3.01(b).
(c) If, during any period, a Lender shall be required to maintain
reserves against "Eurocurrency Liabilities" in accordance with Federal Reserve
Board Regulation D (or any successor regulation), the Borrower shall pay
additional interest during such period on each outstanding Eurodollar Loan of
such Lender (contemporaneously with each interest payment due thereon
commencing with the first such payment due at least five Business Days after
receipt of the notice referred to in the next sentence) at a rate per annum up
to but not exceeding the marginal rate determined by the following formula:
LIBOR - LIBOR.
---------------------------------
1 - Eurodollar Reserve Percentage
Each Lender shall promptly notify the Borrower, with a copy to the
Administrative Agent, upon becoming aware that the Borrower may be required to
make a payment of additional interest to such Lender. When requesting payment
pursuant to this Section 3.03(c), a Lender shall provide to the Borrower, with
a copy to the Administrative Agent, a certificate, signed by an officer of
such Lender setting forth, in reasonable detail, the basis of such claim, the
amount required to be paid by the Borrower to such Lender and the computations
made by such Lender to determine such amount. Absent manifest error, such
certificate shall be binding as to the amounts of additional interest owing in
respect of such Lender's Eurodollar Loans. Any Lender that gives notice under
this Section 3.03(c) shall promptly withdraw such notice (by written notice of
withdrawal given to the Administrative Agent and the Borrower) whenever such
Lender is no longer required to maintain such reserves or the circumstances
giving rise to such notice shall otherwise cease. Notwithstanding the
foregoing, no Lender shall be entitled to request compensation under this
Section 3.03(c) with respect to any Eurodollar Competitive Loan if it shall
have had actual knowledge of the change giving rise to such request at the
time of submission of the relevant Competitive Bid, unless notice of such
Lender's entitlement to such compensation shall have been furnished to the
Borrower at or prior to such time.
Section 3.04 INTEREST ON ABSOLUTE RATE COMPETITIVE LOANS. Each
Absolute Rate Competitive Loan shall bear interest from the date of such Loan
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to (but excluding) its Maturity Date, payable in arrears on the date such Loan
is repaid, at a rate per annum equal to the Competitive Rate.
Section 3.05 INTEREST ON OVERDUE AMOUNTS. All overdue amounts
(including principal, interest and fees) hereunder, and, during the
continuance of any Event of Default that shall have occurred, each Loan, shall
bear interest, payable on demand, at a rate per annum equal to the sum of (i)
2% and (ii) in the case of Eurodollar Loans, the rate then applicable until
the end of the current Interest Period therefor, and thereafter the rate of
interest applicable to ABR Revolving Loans, changing as and when such rate
shall change, and in the case of ABR Revolving Loans, the rate of interest
applicable thereto, changing as and when such rate shall change.
Section 3.06 DAY COUNTS. Interest on ABR Revolving Loans shall be
calculated on the basis of (a) a 365- or, if applicable, a 366-day year for
the actual number of days elapsed for so long as interest is determined
pursuant to clause (i) of the definition of "Alternate Base Rate" and (b) a
360-day year for the actual number of days elapsed for so long as interest is
determined based on clause (ii) of the definition of "Alternate Base Rate".
Interest on all other Loans, and all fees shall be calculated on the basis of
a 360-day year for the actual number of days elapsed.
Section 3.07 MAXIMUM INTEREST RATE. (a) Nothing in this Agreement
shall require the Borrower to pay interest at a rate exceeding the maximum
rate permitted by applicable law. Neither this Section nor Section 11.01 is
intended to limit the rate of interest payable for the account of any Lender
to the maximum rate permitted by the laws of the State of New York (or any
other applicable law) if a higher rate is permitted with respect to such
Lender by supervening provisions of U.S. Federal law.
(b) If the amount of interest payable for the account of any Lender on
any interest payment date in respect of the immediately preceding interest
computation period, computed pursuant to this Article III, would exceed the
maximum amount permitted by applicable law to be charged by such Lender, the
amount of interest payable for its account on such interest payment date shall
automatically be reduced to such maximum permissible amount.
(c) If the amount of interest payable for the account of any Lender in
respect of any interest computation period is reduced pursuant to Sec-
tion 3.07(b) and the amount of interest payable for its account in respect of
any subsequent interest computation period would be less than the maximum
amount permitted by law to be charged by such Lender, then the amount of
interest payable for its account in respect of such subsequent interest
computation period shall be automatically increased to such maximum
permissible amount; PROVIDED that at no time shall the aggregate amount by
which interest paid for the account of any Lender has been increased pursuant
to this Section 3.07(c) exceed the aggregate amount by which interest paid for
its account has theretofore been reduced pursuant to Section 3.07(b).
Section 3.08 COMMITMENT FEES. The Borrower agrees to pay to the
Administrative Agent, for the account of each Lender, on the last day of each
calendar quarter of each year, commencing with the first such day after the
Effective Date (or such later date on which such Lender becomes a Lender), and
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on the Termination Date (or other date on which the Commitment shall
terminate) with respect to such Lender, a fee (the "Commitment Fee") computed
by applying (i) the applicable percentage per annum set forth below based on
the ratings of the Borrower's senior unsecured long-term debt on each day
during the then-ending quarter (or shorter period ending with the Termination
Date or any other date on which the Commitment of such Lender shall terminate)
to (ii) the amount of such Lender's Unused Commitment on such day:
Commitment Fee
Percentage Per Annum
--------------------
Level I
- -------
Moody's: Baa1 or higher }
S&P: BBB+ or higher } .10%
Level II
- --------
Moody's: Baa2 }
S&P: BBB } .125%
Level III
- ---------
Moody's: Baa3 }
S&P: BBB- } .15%
Level IV
- --------
Moody's: Ba1 or lower }
S&P: BB+ or lower } .25%
ARTICLE IV
Disbursement and Payment
Section 4.01 DISBURSEMENT. (a) Each Loan shall be made by the
relevant Lender from such Lender's branch or affiliate identified as its
Applicable Lending Office.
(b) The failure of any Lender to make any Loan to be made by it on
the Borrowing Date therefor shall not relieve any other Lender of its
obligation to make its Loan or Loans on such date, but neither any Lender nor
the Administrative Agent shall be responsible for the failure of any other
Lender to make a Loan to be made by such other Lender.
(c) The Administrative Agent may, but shall not be required to,
advance on behalf of any Lender the amount of such Lender's Loan to be made on
a Borrowing Date, unless such Lender shall have notified the Administrative
Agent prior to such Borrowing Date that it does not intend to make such Loan
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on such date. If the Administrative Agent makes any such advance, the
Administrative Agent shall be entitled to recover the amount so advanced on
demand from the Lender on whose behalf such advance was made and, if such
Lender does not pay the Administrative Agent the amount of such advance on
demand, the Borrower agrees promptly to repay such amount to the
Administrative Agent. Until such amount is repaid to the Administrative Agent
by such Lender or the Borrower, such advance shall be deemed for all purposes
to be a Loan made on such Borrowing Date by the Administrative Agent. The
Administrative Agent shall be entitled to recover from the Lender or the
Borrower, as the case may be, interest on the amount advanced by it for each
day from the Borrowing Date therefor until repaid to the Administrative Agent,
at a rate per annum equal to the Federal Funds Rate until the third Business
Day after the date of the advance and, thereafter, at the rate per annum equal
to the relevant rate on Loans made on the relevant Borrowing Date.
Section 4.02 METHOD AND TIME OF PAYMENTS; SHARING AMONG LENDERS.
(a) All funds received by the Administrative Agent for the account of the
Lenders in respect of payments made by the Borrower under, or from any other
Person on account of, any Credit Document shall be distributed forthwith by
the Administrative Agent among the Lenders, in like funds as received, ratably
in proportion to their respective interests therein. Each payment of
Commitment Fees and each reduction of the Total Commitment shall be apportioned
among the Lenders in proportion to each Lender's Pro Rata Share.
(b) All payments by the Borrower hereunder shall be made without
setoff or counterclaim to the Administrative Agent, for its account or for the
account of the Lender or Lenders entitled thereto, as the case may be, in
dollars and in immediately available funds at the office of the Administrative
Agent prior to 3:00 P.M., New York time, on the date when due.
(c) Whenever any payment from the Borrower shall be due on a day that
is not a Business Day, the date of payment thereof shall be extended to the
next succeeding Business Day. If the date for any payment of principal is
extended by operation of law or otherwise, interest thereon shall be payable
for such extended time.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment from the Borrower is due
that the Borrower will not make such payment in full, the Administrative Agent
may assume that the Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, but shall not be obligated to, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent that the Borrower shall not have so
made such payment, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to
such Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
(e) If any Lender shall receive from the Borrower or any other Person
any amount owing under any Credit Document (whether received pursuant to the
exercise of any right of set-off, banker's lien, realization upon any security
held for or appropriated to such obligation or otherwise) other than in
proportion to such Lender's ratable share thereof, then such Lender shall
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purchase from each other Lender a participating interest in so much of the
other Lenders' Loans as shall be necessary in order that each Lender shall
share such payment with each of the other Lenders in proportion to each
Lender's ratable share; provided that nothing herein contained shall obligate
any Lender to apply any set-off, banker's lien or collateral security first to
the obligations of the Borrower hereunder if the Borrower is obligated to such
Lender pursuant to other loans or notes. If any purchasing Lender shall be
required to return any excess payment received by it, such participation shall
be rescinded and the purchase price restored to the extent of such return, but
without interest.
Section 4.03 COMPENSATION FOR LOSSES. (a) If (i) the Borrower makes
a prepayment, or a Conversion Date occurs, other than on the last day of the
relevant Interest Period, (ii) the Borrower revokes any Borrowing Request for
Eurodollar Revolving Loans, (iii) Eurodollar Revolving Loans (or portions
thereof) are converted into ABR Loans pursuant to Section 4.05 or (iv) Loans
(or portions thereof) shall become or be declared to be due prior to the
scheduled maturity thereof, then the Borrower shall pay to each Lender an
amount that will compensate such Lender for any loss (other than lost profit)
or premium or penalty incurred by such Lender as a result of such prepayment,
conversion, declaration or revocation in respect of funds obtained for the
purpose of making or maintaining such Lenders's Loans, or any portion thereof.
Such compensation shall include an amount equal to the excess, if any, of (i)
the amount of interest which would have accrued on the amount so paid or
prepaid, or not borrowed or converted, for the period from the date of such
payment or prepayment or conversion or failure to borrow to the last day of
such Interest Period (or, in the case of a failure to borrow, the Interest
Period that would have commenced on the date of such failure to borrow) in
each case at the applicable rate of interest for such Loan provided for herein
(excluding, however, any Applicable Margin included therein) over (ii) the
amount of interest (as reasonably determined by such Lender) which would have
accrued to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the London interbank deposit market.
(b) In connection with a demand for payment pursuant to this Section
4.03, a Lender shall provide to the Borrower, with a copy to the
Administrative Agent, a certificate, signed by an officer of such Lender,
setting forth in reasonable detail the amount required to be paid by the
Borrower to such Lender and the computations made by such Lender to determine
such amount. In the absence of manifest error, such certificate shall be
conclusive as to the amount so required to be paid.
Section 4.04 WITHHOLDING AND ADDITIONAL COSTS.
(a) WITHHOLDING. (i) To the extent permitted by law, all payments
under this Agreement and under the Notes (including payments of principal and
interest) shall be payable to each Lender free and clear of any and all
present and future taxes, levies, imposts, duties, deductions, withholdings,
fees, liabilities and similar charges other than Excluded Taxes (collectively,
"Taxes"). If any Taxes are required to be withheld or deducted from any
amount payable under this Agreement, then the amount payable under this
Agreement shall be increased to the amount which, after deduction from such
increased amount of all Taxes required to be withheld or deducted therefrom,
will yield to such Lender the amount stated to be payable under this
Agreement. The Borrower shall also hold each Lender harmless and indemnify it
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for any stamp or other taxes with respect to the preparation, execution,
delivery, recording, performance or enforcement of the Credit Documents (all
of which shall be included within "Taxes"). If any of the Taxes specified in
this Section 4.04(a) are paid by any Lender, the Borrower shall, upon demand
of such Lender, promptly reimburse such Lender for such payments, together
with any interest, penalties and expenses incurred in connection therewith.
The Borrower shall deliver to the Administrative Agent certificates or other
valid vouchers for all Taxes or other charges deducted from or paid with
respect to payments made by the Borrower hereunder. Notwithstanding the
foregoing, the Borrower shall be entitled, to the extent required to do so by
law, to deduct or withhold (and shall not be required to make payments as
otherwise required by this Section 4.04 on account of such deductions or
withholdings) income or other similar taxes imposed by the United States of
America from interest, fees or other amounts payable hereunder for the account
of any Lender other than a Lender (A) that is a U.S. Person for U.S. federal
income tax purposes or (B) that has the Prescribed Forms on file with the
Borrower for the applicable year to the extent deduction or withholding of
such taxes is not required as a result of such filing of such Prescribed
Forms; provided that, if the Borrower shall so deduct or withhold any such
taxes, the Borrower shall provide a statement to the Administrative Agent and
such Lender, setting forth the amount of such taxes so deducted or withheld,
the applicable rate and any other information or documentation which such
Lender may reasonably request for assisting such Lender to obtain any
allowable credits or deductions for the taxes so deducted or withheld in the
jurisdiction or jurisdictions in which such Lender is subject to tax.
(ii) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall deliver to the Borrower and
the Administrative Agent two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224 (or any successor form or forms), certifying
in either case that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes ("Prescribed Forms"). Each Lender that so delivers such Prescribed
Forms further undertakes to deliver to the Borrower and the Administrative
Agent two additional copies of such Prescribed Forms on or before the date
that such Prescribed Forms expire or become obsolete or after the occurrence
of any event requiring a change in the most recent Prescribed Forms so
delivered by it, and such amendments thereto or extensions or renewals thereof
as may be reasonably requested by the Borrower or the Administrative Agent, in
each case certifying that such Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes, unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such Prescribed Forms
inapplicable or which would prevent such Lender from duly completing and
delivering Prescribed Forms with respect to it and such Lender advises the
Borrower and the Administrative Agent that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax. If any Lender that is not incorporated under the laws of the United
States of America or a state thereof fails to comply with the provisions of
this Section, the Borrower and/or the Administrative Agent, may, as required
by law, deduct and withhold federal income tax payments from payments to such
Lender under this Agreement.
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(b) ADDITIONAL COSTS. Subject to Sections 4.04(c), (d) and (e):
(i) Without duplication of any amounts payable described in Section
3.03(c) or 4.03(a), if after the date hereof, any change in any law or
regulation or in the interpretation thereof by any court or administrative
or Governmental Authority charged with the administration thereof or the
enactment of any law or regulation shall either (1) impose, modify or deem
applicable any reserve, special deposit or similar requirement against any
Lender's Commitment or Loans or (2) impose on any Lender (or such Lender's
Applicable Lending Office) any other condition regarding this Agreement,
its Commitment or the Loans and the result of any event referred to in
clause (1) or (2) shall be to increase the cost to such Lender (or such
Lender's Applicable Lending Office) of maintaining its Commitment or any
Eurodollar Loans or Absolute Rate Competitive Loans made by such Lender
(which increase in cost shall be calculated in accordance with such
Lender's reasonable averaging and attribution methods) by an amount which
such Lender deems to be material, then, upon demand by such Lender, then
the Borrower shall pay to such Lender, on demand, an amount equal to such
increase in cost; and
(ii) Without duplication of any amounts payable described in Section
3.03(c) or 4.03(a), if any Lender shall have determined that the adoption
of any applicable law, rule, regulation or guideline regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration
thereof, (including any such adoption or change made prior to the date
hereof but not effective until after the date hereof) or compliance by
such Lender (or such Lender's Applicable Lending Office) with any request
or directive regarding capital adequacy (whether or not having the force
of law) of any such authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on capital for such
Lender (or such Lender's Applicable Lending Office) or any corporation
controlling such Lender as a consequence of its obligations under this
Agreement to a level below that which such Lender (or such Lender's
Applicable Lending Office) or such corporation could have achieved but for
such adoption, change or compliance (taking into consideration such
Lender's (or such Lender's Applicable Lending Office) or such
corporation's policies with respect to capital adequacy), then from time
to time, upon demand by such Lender, then the Borrower shall pay to such
Lender, on demand, such additional amount or amounts as will compensate
such Lender (or such Lender's Applicable Lending Office) or such
corporation for such reduction.
(c) LENDING OFFICE DESIGNATIONS. Before making any demand for
payment pursuant to this Section 4.04, each Lender shall, if possible,
designate a different Applicable Lending Office if such designation will avoid
the need for giving such notice and will not, in the judgment of such Lender,
be otherwise disadvantageous to such Lender.
(d) CERTIFICATE, ETC. In connection with any demand for payment
pursuant to this Section 4.04, a Lender shall provide to the Borrower, with a
copy to the Administrative Agent, a certificate, signed by an officer of such
Lender, setting forth in reasonable detail the basis for such demand, the
amount required to be paid by the Borrower to such Lender, the computations
made by such Lender to determine such amount and satisfaction of the
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conditions set forth in the next sentence. In the absence of manifest error,
the certificate referred to above shall be conclusive as to the amount so
required to be paid.
(e) LIMITATIONS. The Borrower shall not be obligated to compensate a
Lender for any amount under Section 4.04(b) (i) and (ii) arising or occurring
more than 90 days prior to the date on which an office of such Lender
primarily responsible for the administration of this Agreement obtains actual
knowledge that such Lender is entitled to such compensation or (ii) with
respect to any Competitive Loan if it shall have had actual knowledge of the
change giving rise to such request at the time of submission of the relevant
Competitive Bid, unless notice of such Lender's entitlement to such
compensation shall have been specified in such Lender's Competitive Bid.
Section 4.05 FUNDING IMPRACTICABLE. If at any time any Lender shall
have determined in good faith (which determination shall be conclusive) that
the making or maintenance of all or any part of such Lender's Eurodollar
Revolving Loans has been made impracticable or unlawful because of compliance
by such Lender in good faith with any law or guideline or interpretation or
administration thereof by any Governmental Authority charged with the inter-
pretation or administration thereof or with any request or directive of such
body (whether or not having the effect of law) or because U.S. dollar deposits
in the amount and requested maturity of such Eurodollar Revolving Loans are
not available to such Lender in the London Eurodollar interbank market, then
the Administrative Agent, upon notification to it of such determination by
such Lender, shall forthwith advise the other Lenders and the Borrower
thereof. Upon such date as shall be specified in such notice and until such
time as the Administrative Agent, upon notification to it by such Lender,
shall notify the Borrower and the other Lenders that the circumstances
specified by it in such notice no longer apply, (i) notwithstanding any other
provision of this Agreement, such Eurodollar Revolving Loans shall, automati-
cally and without requirement of further notice, or any payment pursuant to
Section 4.03 or 4.04, by the Borrower, be converted to ABR Revolving Loans,
(ii) the obligation of such Lender to make or continue Eurodollar Revolving
Loans shall be suspended, and, if the Borrower shall request in a Borrowing
Request or Conversion Request that the Lenders make a Eurodollar Revolving
Loan, the Loan requested to be made by such Lender shall instead be made as an
ABR Revolving Loan and (iii) such Lender shall not submit Competitive Bids in
respect of requests for Eurodollar Competitive Loans.
Section 4.06 EXPENSES; INDEMNITY. (a) The Borrower agrees to pay all
out-of-pocket expenses incurred by the Administrative Agent or any Lender
(including reasonable fees and disbursements of counsel) in connection with
the enforcement of any provision of any Credit Document or any amendment or
supplement to this Agreement.
(b) The Borrower agrees to indemnify the Administrative Agent and
each of the Lenders and their respective directors, officers, employees and
agents (each, an "Indemnitee") against, and to hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including counsel fees and expenses, incurred by or asserted against any
Indemnitee arising out of, in any way connected with, or as a result of
(i) the execution or delivery of any Credit Document or any agreement or
instrument contemplated by any Credit Document, the performance by the parties
thereto of their respective obligations under any Credit Document or the
consummation of the transactions contemplated by any Credit Document, (ii) the
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use of the proceeds of the Loans or (iii) any claim, litigation, investigation
or proceeding relating to any of the foregoing, whether or not any Indemnitee
is a party thereto; PROVIDED that such indemnity shall not, as to any Indemni-
tee, be available to the extent that such losses, claims, damages, liabilities
or related expenses are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee.
(c) All amounts due under this Section 4.06 shall be payable in
immediately available funds upon written demand therefor.
Section 4.07. SURVIVAL. The provisions of Sections 4.03, 4.04, 4.06
and 9.06, shall remain operative and in full force and effect regardless of
the expiration of the term of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Loans, the
reduction or termination of any Commitments, the invalidity or
unenforceability of any term or provision of any Credit Document, or any
investigation made by or on behalf of the Lenders.
Section 4.08. SUBSTITUTION OF A LENDER. Notwithstanding anything to
the contrary contained herein, if any Lender shall request compensation
pursuant to Section 4.04(b)(i) and (ii) in an aggregate amount in excess of
$25,000, then, in each case, the Borrower may require that such Lender
transfer all of its right, title and interest under this Agreement and such
Lender's Notes to one or more of the other Lenders or any other lender
identified by the Borrower and reasonably acceptable to the Administrative
Agent (a "Proposed Lender") which is willing to assume all of the obligations
of such Lender, for consideration equal to the outstanding principal amount of
such Lender's Loans, together with interest thereon to the date of such
transfer and all other amounts payable under the Credit Documents to such
Lender on or prior to the date of such transfer (including, without
limitation, any fees accrued hereunder and any amounts which would be payable
under Section 4.03 as if all of such Lender's Loans were being prepaid in full
on such date). Subject to the execution and delivery of new notes, an
Assignment and Acceptance, and such other documents as such Lender may
reasonably require, such Proposed Lender shall be a "Lender" for all purposes
hereunder. Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements of the Borrower contained in Sections 4.04
and 4.06 (without duplication of any payments made to such Lender by the
Borrower or the Proposed Lender) shall survive for the benefit of any Lender
replaced under this Section 4.08 with respect to the time prior to such
replacement.
ARTICLE V
Representations and Warranties
Section 5.01 REPRESENTATIONS AND WARRANTIES. The Borrower represents
and warrants to the Administrative Agent and each Lender as follows:
(a) CORPORATE EXISTENCE.
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(i) the Borrower and each of its Significant Subsidiaries has
been duly incorporated and is validly existing and in good standing
under the laws of its jurisdiction of incorporation;
(ii) the Borrower and each of its Significant Subsidiaries has
the corporate power and authority and all necessary governmental
licenses, authorizations, consents and approvals material to the
ownership of its assets and the carrying on of its business;
(iii) the Borrower has the power and authority and all
governmental licenses, authorizations, consents and approvals to
execute, deliver and perform its obligations under this Agreement and
the Notes; and
(iv) the Borrower is duly qualified as a foreign corporation,
licensed and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of Property or the conduct of
its business requires such qualification.
(b) CORPORATE AUTHORIZATION; NO CONTRAVENTION. The execution,
delivery, and performance by the Borrower of the Credit Documents have
been duly authorized by all necessary corporate action and do not and will
not:
(i) contravene the terms of the Borrower's articles of
incorporation, bylaws or other organizational document;
(ii) conflict with or result in any breach or contravention of,
or the creation of any Lien under, any indenture, agreement, lease,
instrument, Contractual Obligation, injunction, order, decree or
undertaking to which the Borrower is a party or by which it is bound;
or
(iii) violate any Requirement of Law.
(c) GOVERNMENTAL AUTHORIZATION. The CPUC has duly issued an order
which sets forth any and all CPUC approvals and authorizations required
for the Borrower to enter into the Credit Documents and to take all
actions contemplated hereby or in connection herewith, and such order
remains in full force and effect in the form issued, and no other consent,
approval, authorization or order of any Governmental Authority is required
for due execution, delivery and performance by the Borrower of the Credit
Documents.
(d) BINDING EFFECT. This Agreement is, and the Notes when delivered
hereunder will be legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their respective terms
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(e) LITIGATION. There are no actions, suits, proceedings, claims or
disputes pending, or to the best knowledge of the Borrower, threatened at
law, in equity, in arbitration or before any Governmental Authority, against
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the Borrower, or its Subsidiaries or any of their respective Properties which
(i) purport to affect or pertain to this Agreement, or any of the transactions
contemplated hereby; or (ii) if determined adversely to the Borrower, or its
Subsidiaries, might have a Material Adverse Effect. No injunction, writ,
temporary restraining order or any order of any nature has been issued by any
court or other Governmental Authority purporting to enjoin or restrain the
execution, delivery and performance of any Credit Document, or directing that
the transactions provided for herein not be consummated as herein provided.
(f) NO DEFAULT. No Default or Event of Default exists or would
result from the incurring of the Obligations by the Borrower under this
Agreement. Neither the Borrower, nor any of its Significant Subsidiaries,
is in default under or with respect to any Contractual Obligation which,
individually or together with all such defaults, would have a Material
Adverse Effect.
(g) ERISA COMPLIANCE.
(i) Each Qualified Plan is in compliance in all material respects
with the applicable provisions of ERISA, the Code and other federal or
state law, including all requirements under the Code or ERISA for
filing reports (which are true and correct in all material respects as
of the date filed), and to the best knowledge of the Borrower,
benefits have been paid in accordance with the provisions of such
Plan.
(ii) Each Qualified Plan has been determined by the IRS to qualify
under Section 401 of the Code, the IRS has not determined that any
amendment to any Qualified Plan does not qualify under Section 401 of
the Code, and the trusts created thereunder have been determined to be
exempt from tax under the provisions of Section 501 of the Code, and
to the best knowledge of the Borrower nothing has occurred which would
cause the loss of such qualification or tax-exempt status.
(iii) There is no outstanding liability under Title IV of ERISA
with respect to any Plan maintained or sponsored by the Borrower or
any ERISA Affiliate (as to which the Borrower is or may be liable),
nor with respect to any Plan to which the Borrower or any ERISA
Affiliate (wherein the Borrower is or may be liable) contributes or is
obligated to contribute.
(iv) None of the Qualified Plans subject to Title IV of ERISA has
any Unfunded Pension Liability as to which the Borrower is or may be
liable.
(v) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan maintained or sponsored by the Borrower or to
which the Borrower is obligated to contribute.
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(vi) There are no pending or, to the best knowledge of the
Borrower, threatened claims, actions or lawsuits, other than routine
claims for benefits in the usual and ordinary course, asserted or
instituted against (i) any Plan maintained or sponsored by the
Borrower or its assets, (ii) any member of the Controlled Group with
respect to any Qualified Plan of the Company, or (iii) any fiduciary
with respect to any Plan for which the Borrower may be directly or
indirectly liable, through indemnification obligations or otherwise
which would be reasonably likely to have a Material Adverse Effect.
(vii) The Borrower has not incurred nor reasonably expects to
incur (i) any liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such
liability) under Section 4201 or 4243 of ERISA with respect to a
Multiemployer Plan or (ii) any liability under Title IV of ERISA
(other than premiums due and not delinquent under Section 4007 of
ERISA) with respect to a Plan.
(viii) The Borrower has not transferred any Unfunded Pension
Liability outside of the Controlled Group or otherwise engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.
(ix) The Borrower has not engaged, directly or indirectly, in a
non-exempt prohibited transaction (as defined in Section 4975 of the
Code or Section 406 of ERISA) in connection with any Plan which would
have a Material Adverse Effect.
(h) USE OF PROCEEDS; MARGIN REGULATIONS. No Loans will be used,
directly or indirectly, (i) to purchase or carry Margin Stock or (ii) to
repay or otherwise refinance indebtedness of the Borrower or others
incurred to purchase or carry Margin Stock or (iii) to extend credit for
the purpose of purchasing or carrying any Margin Stock. No Loan will be
used to acquire any security in any transaction which is subject to
Sections 13 or 14 of the Securities Exchange Act of 1934.
(i) TITLE TO PROPERTIES. The Borrower and each of its Significant
Subsidiaries has sufficient and legal title in fee simple to or valid
leasehold interest in all its Property, except for such defects in title
as could not, individually or in the aggregate, have a Material Adverse
Effect. Such Property is free and clear of all Liens or rights of others,
except Permitted Liens.
(j) TAXES. The Borrower and its Subsidiaries have filed all federal
and other material tax returns and reports required to be filed and have
paid all federal and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their Properties,
income or assets otherwise due and payable except (a) those which are
being contested in good faith by appropriate proceedings and for which
adequate reserves have been provided in accordance with GAAP and no Notice
of Lien has been filed or recorded, and (b) those levied or imposed on
Subsidiaries other than Significant Subsidiaries the nonpayment of which
would not, in the aggregate, have a Material Adverse Effect. To the best
knowledge of the Borrower, there is no proposed tax assessment against the
Borrower or any of its Subsidiaries which would, if the assessment were
made, have a Material Adverse Effect.
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(k) FINANCIAL CONDITION.
(i) The audited consolidated balance sheet of the Borrower as of
December 31, 1996, and the unaudited consolidated balance sheets of
the Borrower as of March 31, 1997, and the related consolidated
statements of income, changes in shareholders' equity and cash flows
for, each of the respective periods then ended, copies of which have
been furnished to the Administrative Agent and the Lenders, fairly
present the consolidated financial condition of the Borrower and its
consolidated Subsidiaries as of, and the results of its operations and
cash flows for, each of the respective periods then ended, applied on
a consistent basis. Such financial statements were prepared in
accordance with GAAP consistently applied throughout the period
covered thereby, are complete and accurate, and show all material
indebtedness and other liabilities of the Borrower and its
consolidated Subsidiaries as of the date thereof (including
liabilities for taxes and material commitments).
(ii) The unaudited unconsolidated balance sheets of the Borrower
as of December 31, 1996, and as of March 31, 1997 and the related
unconsolidated statements of income, changes in shareholders' equity
and cash flows for the period then ended, copies of which have been
furnished to the Administrative Agent and the Lenders, fairly present
the financial position of the Borrower as of, and the results of its
operations and cash flows for, each of the respective periods then
ended, applied on a consistent basis.
(l) ENVIRONMENTAL MATTERS.
(i) The operations of the Borrower and each of its Subsidiaries
comply with all Environmental Laws except where such noncompliance
would not have a Material Adverse Effect.
(ii) The Borrower and each of its Subsidiaries have obtained all
licenses, permits, authorizations and registrations required under any
Environmental Law ("Environmental Permits") necessary for its
operations, and all such Environmental Permits are in good standing,
and the Borrower and each of its Subsidiaries are in compliance with
all terms and conditions of such Environmental Permits, except where
the failure so to obtain, be in good standing or be in compliance
would not have a Material Adverse Effect.
(iii) None of the Borrower, any of its Subsidiaries or any of
their present Property or operations is subject to any outstanding
written order from or agreement with any Governmental Authority or
other Person, nor subject to any judicial or docketed administrative
proceeding, respecting any Environmental Law, Environmental Claim or
Hazardous Material which would have a Material Adverse Effect.
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(iv) There are no conditions or circumstances which may give rise
to any Environmental Claim arising from the operations of the Borrower
or its Subsidiaries which would have a Material Adverse Effect.
Without limiting the generality of the foregoing (i) neither the
Borrower nor any of its Subsidiaries has any underground storage tanks
(x) that are not properly registered or permitted under applicable
Environmental Laws or (y) that are leaking or disposing of Hazardous
Materials off-site and (ii) the Borrower and its Subsidiaries have
notified all of their employees of the existence, if any, of any
health hazard arising from the conditions of their employment and have
met all notification requirements under Title III of CERCLA or any
other Environmental Law, except where the failure to so notify would
not, in the aggregate, have a Material Adverse Effect.
(m) REGULATED ENTITIES. Neither the Borrower nor any Person
controlling the Borrower is (a) an "Investment Company" within the meaning
of the Investment Company Act of 1940; or (b) subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act or any regulation thereunder limiting its ability
to incur Debt.
(n) LABOR RELATIONS. There are no strikes, lockouts or other labor
disputes against the Borrower or any of its Subsidiaries or, to the best
of the Borrower's knowledge, threatened against or affecting the Borrower
or any of its Subsidiaries which would have a Material Adverse Effect, and
no significant unfair labor practice complaint is pending against the
Borrower or any of its Subsidiaries or, to the best knowledge of the
Borrower, threatened against any of them before any Governmental Authority
which would have a Material Adverse Effect.
(o) INSURANCE. The Properties of the Borrower and its Significant
Subsidiaries are insured with financially sound and reputable insurance
companies, in such amounts, with such deductibles and covering such risks
as is customarily carried by companies engaged in similar businesses and
owning similar Properties in localities where the Borrower or such
Significant Subsidiary operates.
(p) FULL DISCLOSURE. None of the representations or warranties made
by the Borrower in this Agreement as of the date of such representations
and warranties, and none of the statements contained in any certificate
furnished by or on behalf of the Borrower in connection with this
Agreement contains any untrue statement of a material fact or omits any
material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they
are made, not misleading.
(q) COMPLIANCE WITH APPLICABLE LAWS. Neither the Borrower nor any
Subsidiary is in default with respect to any judgment, order, writ,
injunction, decree or decision of any Governmental Authority which default
would have a Material Adverse Effect. The Borrower and each Subsidiary is
complying in all material respects with all applicable statutes and
regulations, including ERISA and applicable occupational, safety and
health and other labor laws, of all Governmental Authorities, a violation
of which would have a Material Adverse Effect.
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(r) RANKING. Obligations of the Borrower hereunder and under the
Notes will rank senior to or PARI PASSU with all other Unsecured Debt of
the Borrower.
Section 5.02 SURVIVAL. All representations and warranties made by
the Borrower in this Agreement, and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement, shall
(i) be considered to have been relied upon by the Lenders, (ii) survive the
making of Loans regardless of any investigation made by, or on behalf of, the
Lenders, and (iii) continue in full force and effect as long as the
Commitments have not been terminated and, thereafter, so long as any Loan, fee
or other amount payable hereunder remains unpaid.
ARTICLE VI
Conditions Precedent
Section 6.01 CONDITIONS TO THE AVAILABILITY OF THE COMMITMENTS. The
obligations of each Lender hereunder are subject to, and the Lenders'
Commitments shall not become available until the earliest date (the "Effective
Date") (which shall be no later than the close of business in New York City on
June 30, 1997) on which each of the following conditions precedent shall have
been satisfied or waived in writing by the Lenders:
(a) THIS AGREEMENT. The Administrative Agent shall have received
this Agreement duly executed and delivered by each of the Lenders and the
Borrower.
(b) THE REVOLVING CREDIT NOTES. The Borrower shall have delivered to
the Administrative Agent, for each of the Lenders, a duly executed
Revolving Credit Note.
(c) EVIDENCE OF CORPORATE ACTION. The Lenders shall have received
the following:
(i) Originals (or copies certified to be true copies by an
appropriate officer of the Borrower) of all governmental and
regulatory approvals (including, without limitation, approvals or
orders of the CPUC) necessary for the Borrower to execute, deliver
and perform this Agreement and the Notes and the transactions
contemplated hereby.
(ii) The articles of incorporation of the Borrower as in effect
on the Effective Date, certified by the Secretary of State of
California as of a recent date and by the Secretary or Assistant
Secretary of the Borrower as of the Effective Date and the bylaws of
the Borrower as in effect on the Effective Date, certified by the
Secretary or Assistant Secretary of the Borrower as of the Effective
Date.
(iii) Certificates of good standing for the Borrower from each of
the Secretary of State of California and the Secretaries of State of
the states where the Borrower conducts its principal operations,
certifying that the Borrower is in good standing in such states, such
certificates to be dated reasonably near the Effective Date.
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(iv) Copies of the resolutions of the board of directors of the
Borrower approving and authorizing the execution, delivery and
performance by the Borrower of this Agreement and the Notes and
authorizing the borrowings hereunder, certified as of the Effective
Date by the Secretary or an Assistant Secretary of the Borrower.
(v) A certificate of the Secretary or an Assistant Secretary of
the Borrower certifying the names and true signatures of the officers
of the Borrower authorized to sign this Agreement, the Notes and any
certificates or other documents, to be delivered in connection
herewith.
(d) OPINIONS OF COUNSEL. The Lenders shall have received a favorable
written opinion, dated the Effective Date, of Robert M. Johnson, Assistant
General Counsel of the Borrower, and O'Melveny & Myers LLP, in
substantially the form of EXHIBIT E.
(e) REPRESENTATIONS AND WARRANTIES; ETC. The following statements
shall be true and the Administrative Agent shall have received a
certificate signed by a Responsible Officer of the Borrower, dated the
Effective Date, stating that:
(i) The representations and warranties contained in Section 5.01
of this Agreement are correct on and as of the Effective Date as
though made on and as of such date;
(ii) Since December 31, 1996, neither the Borrower nor any of its
Subsidiaries have entered into or consummated any transaction or
transactions, and there has occurred no change, affecting the
business, credit, operations, financial condition or prospects of the
Borrower and its Subsidiaries, taken as a whole, which would have a
Material Adverse Effect;
(iii) No litigation, proceeding or inquiry before or by any
arbitrator or Governmental Authority is continuing or, to the best of
the Borrower's knowledge, threatened which would have a Material
Adverse Effect; and
(iv) No event has occurred and is continuing which constitutes a
Default or Event of Default.
(f) OTHER DOCUMENTS. The Lenders shall have received such other
certificates, opinions and other documents as the Required Lenders
reasonably may require.
Section 6.02 CONDITIONS TO ALL LOANS. The obligations of the Lenders
to make each Loan are subject to the conditions precedent that, on the date of
each Loan and after giving effect thereto, each of the following conditions
precedent shall have been satisfied, or waived in writing by the Lenders:
(a) BORROWING REQUEST. The Administrative Agent shall have received
a Borrowing Request complying with the terms of this Agreement.
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(b) NO DEFAULT. No Default or Event of Default shall have occurred
and be continuing, nor shall any Default or Event of Default occur as a
result of the making of such Loan.
(c) REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained in Section 5.01 shall have been true and correct when
made and (except to the extent that any representation or warranty speaks
as of a date certain) shall be true and correct on the Borrowing Date with
the same effect as though such representations and warranties had been
made on such Borrowing Date.
Section 6.03 SATISFACTION OF CONDITIONS PRECEDENT. Each of (i) the
delivery by the Borrower of a Borrowing Request (unless the Borrower notifies
the Lenders in writing to the contrary prior to the Borrowing Date) and
(ii) the acceptance of the proceeds of a Loan shall be deemed to constitute a
certification by the Borrower that, as of the Borrowing Date, each of the
conditions precedent contained in Section 6.02 has been satisfied with respect
to any Loans then being made.
ARTICLE VII
Covenants
Section 7.01 AFFIRMATIVE COVENANTS. Until satisfaction in full of
all the obligations of the Borrower under the Credit Documents and termination
of the Commitments of the Lenders hereunder:
(a) FINANCIAL STATEMENTS; COMPLIANCE CERTIFICATES. The Borrower
shall furnish to the Lenders:
(i) as soon as available, but not later than 120 days after the
end of each fiscal year of the Borrower, (i) the audited, consolidated
balance sheet of the Borrower as of the end of such fiscal year and
the related consolidated statements of income, changes in
shareholders' equity and cash flows for such fiscal year, certified by
Arthur Andersen LLP or other independent certified public accountants
of recognized national standing, and (ii) the unaudited unconsolidated
balance sheet of the Borrower as of the end of such fiscal year and
the related unaudited unconsolidated statements of income, changes in
shareholders' equity and cash flows for such fiscal year, in each case
setting forth comparative figures for the preceding fiscal year, all
in reasonable detail, certified by a Responsible Officer of the
Borrower who was involved in the preparation of the financial
statements referred to herein; and
(ii) as soon as available, but not later than 60 days after the
end of each of the first three quarterly accounting periods in each
fiscal year of the Borrower, (i) the unaudited unconsolidated balance
sheet of the Borrower as of the end of such quarterly period and the
related unaudited unconsolidated statements of income, changes in
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shareholders' equity and cash flows, and (ii) the unaudited
consolidated balance sheet of the Borrower as of the end of such
quarterly period and the related unaudited consolidated statements of
income, changes in shareholders' equity and cash flows for the elapsed
portion of the fiscal year ended with the last day of such quarterly
period. Such statements shall be in reasonable detail and certified
by a Responsible Officer of the Borrower who was involved in the
preparation of the financial statements referred to herein;
(iii) Concurrently with the delivery of the financial statements
referred to in Clauses (i) and (ii) above, a certificate of a
Responsible Officer (A) stating that, to the best of such officer's
knowledge after reasonable investigation, the Borrower, during such
period, has observed or performed all of its covenants and other
agreements in all material respects, and satisfied every condition
contained in this Agreement to be observed, performed or satisfied by
it, and that such officer has obtained no knowledge of any Default or
Event of Default except as specified in such certificate, and
(B) showing in detail the calculation supporting such statement in
respect of Sections 7.03(a) and 7.03(b);
(iv) Concurrently with the delivery of the financial statements
referred to in Clause (i) above, a comprehensive budget that has been
reviewed by the Board of Directors of the Borrower for such fiscal
year (including pro forma unconsolidated projected balance sheets,
income statements, cash flow statements, in each case for the current
budget year) and financial forecast for the next two fiscal years,
together with an explanation of key assumptions, all in the form such
budget has previously been delivered to the Administrative Agent;
(v) Within 5 days after the same are sent, copies of all
financial statements and reports which the Borrower sends to its
shareholders, and promptly after the same are filed, copies of all
financial statements and regular, periodical or special reports which
the Borrower may make to, or file with, the SEC; and
(vi) Promptly, such additional financial and other information as
the Administrative Agent, at the request of any Lender may from time
to time reasonably request.
(b) NOTICES. The Borrower shall promptly notify the Administrative
Agent (who shall notify each Lender):
(i) of the occurrence of any Default or Event of Default and of
the occurrence or existence of any event or circumstance that
foreseeably will become a Default or Event of Default;
(ii) of any (A) breach or non-performance of, or any default
under any Contractual Obligation of the Borrower or any of its
Subsidiaries which would be reasonably expected to result in a
Material Adverse Effect; or (B) dispute, litigation, investigation,
proceeding or suspension which may exist at any time between the
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Borrower or any of its Subsidiaries and any Governmental Authority
which would reasonably be expected to result in a Material Adverse
Effect;
(iii) of the commencement of, or any material development in, any
litigation or proceeding affecting the Borrower or any Subsidiary
which, if adversely determined, would have a Material Adverse Effect;
(iv) of any other litigation or proceeding affecting the Borrower
or any of its Subsidiaries which the Borrower would be required to
report to the SEC pursuant to the Securities Exchange Act of 1934,
within four days after reporting the same to the SEC;
(v) any ERISA Event affecting the Borrower or any member of its
Controlled Group (but in no event more than ten days after such ERISA
Event) together with (i) a copy of any notice with respect to such
ERISA Event that may be required to be filed with the PBGC and
(ii) any notice delivered by the PBGC to the Borrower or any member of
its Controlled Group with respect to such ERISA Event;
(vi) upon becoming aware thereof, of any Material Adverse Effect;
(vii) upon becoming aware thereof, of any change in the rating of
the Borrower's Debt by Moody's or S&P;
(viii) following any change in accounting policies or financial
reporting practices; and
(ix) upon becoming aware thereof, of any labor controversy
resulting in our threatening to result in any strike, work stoppage,
boycott, shutdown or other labor disruption against to involving the
Borrower or any Subsidiary and which would reasonably be expected to
have a Material Adverse Effect.
Each notice pursuant to this Section 7.01(b) shall be accompanied by a
written statement by a Responsible Officer of the Borrower setting forth
details of the occurrence referred to therein.
(c) PRESERVATION OF CORPORATE EXISTENCE, ETC. The Borrower shall and
shall cause each of its Significant Subsidiaries to:
(i) preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its state or
jurisdiction of incorporation;
(ii) preserve and maintain in full force and effect all rights,
privileges, qualifications, permits, licenses and franchises material
in the normal conduct of its business;
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(iii) use its reasonable efforts, in the ordinary course and
consistent with past practice, to preserve its business organization
and preserve the goodwill and business of the customers, suppliers
and others having business relations with it; and
(iv) preserve or renew all of its registered trademarks, trade
names and service marks, the non-preservation of which would have a
Material Adverse Effect.
(d) MAINTENANCE OF PROPERTY. The Borrower shall maintain, and
shall cause each of its Significant Subsidiaries to maintain, and preserve
all its Property which is used or useful in its business in good working
order and condition, ordinary wear and tear excepted.
(e) INSURANCE. The Borrower shall maintain, and shall cause each
Significant Subsidiary to maintain, with financially sound and reputable
insurers, insurance with respect to its Properties and business against
loss or damage of the kinds customarily insured against by Persons engaged
in the same or similar business, of such types and in such amounts as are
customarily carried under similar circumstances by such other Persons,
including workers' compensation insurance, public liability and property
and casualty insurance.
(f) PAYMENTS OF OBLIGATIONS. The Borrower shall, and shall cause
its Subsidiaries to, pay and discharge as the same shall become due and
payable, all obligations and liabilities material to the Borrower and its
Subsidiaries taken as a whole, including:
(i) all tax liabilities, assessments and governmental charges
or levies upon it or its Properties or assets, unless (x) the same
are being contested in good faith by appropriate proceedings and
adequate reserves in accordance with GAAP are being maintained by
the Borrower or such Subsidiary or (y) the same are levied or
imposed on Subsidiaries other than Significant Subsidiaries and the
nonpayment of which would not, in the aggregate, have a Material
Adverse Effect; and
(ii) all lawful claims which, if unpaid, might by law become a
Lien other than a Permitted Lien upon its Property.
(g) COMPLIANCE WITH LAWS. The Borrower shall comply, and shall
cause each of its Subsidiaries to comply, in all material respects with all
Requirements of Law of any Governmental Authority having jurisdiction over
it or its business, except such as may be contested in good faith or as to
which a bona fide dispute may exist or where such noncompliance would not
have a Material Adverse Effect.
(h) INSPECTION OF PROPERTY AND BOOKS AND RECORDS. The Borrower
shall maintain and shall cause each of its Subsidiaries to maintain, proper
books of record and account, in which full, true and correct entries in
conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the Borrower
and such Subsidiaries. To the extent permitted by applicable law and
subject to Section 11.05, the Borrower will permit, and will cause each of
its Subsidiaries to permit, representatives of the Administrative Agent or
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any Lender to visit and inspect any of their respective Properties, to
examine their respective corporate, financial and operating records and
make copies thereof or abstracts therefrom, and to discuss their respective
affairs, finances and accounts with their respective directors, officers,
employees and independent public accountants, all at the expense of the
Borrower and at such reasonable times during normal business hours and as
often as may be reasonably desired, upon reasonable advance notice to the
Borrower.
Section 7.02 NEGATIVE COVENANTS. Until satisfaction in full of all
the obligations of the Borrower under the Credit Documents and termination
of the Commitments of the Lenders hereunder, the Borrower will not, without
the written consent of the Required Lenders:
(a) LIENS. Create or suffer to exist, or permit any of its
Subsidiaries to create of suffer to exist, any lien upon or with respect to
any of its Property except Permitted Liens.
(b) CONSOLIDATIONS AND MERGERS. Merge, consolidate with or into,
or convey, transfer, lease or otherwise dispose of, or permit any of its
Significant Subsidiaries to merge, consolidate with or into, or convey,
transfer, lease or otherwise dispose of, (whether in one transaction or in
a series of transactions) all or substantially all of its assets (whether
now owned or hereinafter acquired) or enter into, or permit any of its
Significant Subsidiaries to enter into, any joint venture or partnership
with, any Person except:
(i) any Significant Subsidiary of the Borrower may merge,
consolidate or combine with or into, or transfer assets to the
Borrower (if the Borrower shall be the continuing or surviving
corporation) or with, into or to any one or more Significant
Subsidiaries of the Borrower; PROVIDED that if any transaction shall
be between a Significant Subsidiary and a wholly-owned Significant
Subsidiary, the wholly-owned Significant Subsidiary shall be the
continuing or surviving corporation;
(ii) any Significant Subsidiary of the Borrower may sell,
lease, transfer or otherwise dispose of any or all of it assets
(upon voluntary liquidation or otherwise), to the Borrower or
another wholly-owned Significant Subsidiary of the Borrower; if
immediately after giving effect thereto no Default or Event of
Default would exist;
(iii) the Borrower may merge, consolidate or combine with
another entity if (i) the Borrower is the corporation surviving the
merger, and (ii) immediately after giving effect thereto, no Default
or Event of Default would exist; and
(iv) the Borrower and any Subsidiary may enter into joint
ventures and partnerships in the ordinary course of business as
presently conducted.
(c) INVESTMENTS. Make, or permit any of its Significant
Subsidiaries to make, any Investments except Permitted Investments and as
required by any Governmental Authority.
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(d) TRANSACTIONS WITH AFFILIATES. Enter into, or permit any of its
Subsidiaries to enter into, any transaction with any Affiliate of the
Borrower or of any such Subsidiary except as contemplated by this Agreement
or in the ordinary course of business and pursuant to the reasonable
requirements of the business of the Borrower or such Subsidiary and upon
fair and reasonable terms no less favorable to the Borrower or such
Subsidiary than would be obtained in a comparable arm's-length transaction
with a Person not an Affiliate of the Borrower or such Subsidiary.
(e) COMPLIANCE WITH ERISA. Directly or indirectly, or permit any
ERISA Affiliate to directly or indirectly (i) terminate, any Plan subject
to Title IV of ERISA so as to result in any material (in the opinion of the
Administrative Agent) liability to the Borrower or any ERISA Affiliate,
(ii) permit to exist any ERISA Event or any other event or condition, which
presents the risk of a material (in the opinion of the Administrative
Agent) liability of the Borrower or any ERISA Affiliate, or (iii) make a
complete or partial withdrawal (within the meaning of ERISA Section 4201)
from any Multiemployer Plan so as to result in any material (in the opinion
of the Required Lenders) liability to the Borrower or any ERISA Affiliate,
(iv) enter into any new Plan or modify any existing plan so as to increase
its obligations thereunder except in the ordinary course of business
consistent with past practice which would reasonably be expected to result
in any material (in the opinion of the Administrative Agent) liability of
the Borrower or any ERISA Affiliate, or (v) permit the present value of
all nonforfeitable accrued benefits under each Plan (using the actuarial
assumptions utilized by the PBGC upon termination of a Plan) materially (in
the opinion of the Required Lenders) to exceed the fair market value of
Plan assets allocable to such benefits, all determined as of the most
recent valuation date for each such Plan.
(f) LEASE OBLIGATIONS. Create or suffer to exist, or permit any
Significant Subsidiary to create or suffer to exist, any Lease Obligations,
except for:
(i) leases of the Borrower or any of its Significant
Subsidiaries in existence on the Effective Date and any arms' length
renewal, extension or refinancing thereof; and
(ii) after the Effective Date, any leases entered into by the
Borrower or any of its Significant Subsidiaries in the ordinary
course of business in a manner and to an extent consistent with
past practice.
(g) RESTRICTED PAYMENTS. Declare or make any dividend payment or
other distribution of assets, Properties, cash, rights, obligations or
securities on account of any shares of any class of its capital stock or
purchase, redeem or otherwise acquire for value (or permit any of its
Subsidiaries to do so) any shares of its capital stock or any warrants,
rights or options to acquire such shares, now or hereafter outstanding if a
Default or Event of Default has occurred and is continuing or would result
therefrom.
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(h) CHANGE IN BUSINESS. Engage, or permit any of its Subsidiaries
to engage, in any material line of business substantially different from
those lines of business carried on by it on the date hereof.
Section 7.03 FINANCIAL COVENANTS. Until satisfaction in full of
all the obligations of the Borrower under the Credit Documents and termination
of the Commitments of the Lenders hereunder, the Borrower will not:
(a) NET WORTH. Permit its Net Worth at any time to be less than an
amount equal to the sum of (i) $320,000,000 PLUS (ii) 25% of the sum of all
amounts realized (after the costs of sale) from the sale by the Borrower of
any shares of capital stock or any other equity securities of the Borrower
(except redeemable preferred stock) issued after September 30, 1996.
(b) LEVERAGE RATIO. Permit the ratio of Funded Debt to Total
Capitalization to exceed 70 percent as of the end of any quarter of any
fiscal year.
ARTICLE VIII
Events of Default
Section 8.01 EVENTS OF DEFAULT. If one or more of the following
events (each, an "Event of Default") shall occur:
(a) The Borrower shall fail duly to pay any principal of any Loan
when due, whether at maturity, by notice of intention to prepay or
otherwise; or
(b) The Borrower shall fail duly to pay any interest, fee or any
other amount payable under the Credit Documents within two Business Days
after the same shall be due; or
(c) Any representation or warranty made or deemed made by the
Borrower herein, or any statement or representation made in any
certificate, report or opinion delivered by or on behalf of the Borrower in
connection herewith, shall prove to have been false or misleading in any
material respect when so made or deemed made; or
(d) The Borrower shall fail duly to observe or perform any other
term, covenant or agreement contained in this Agreement; or
(e) The Borrower or any Subsidiary shall fail to pay any of its
obligations (other than its obligations hereunder) in an amount of
$10,000,000 or more when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), or any other default or
event of default under any agreement or instrument relating to any such
obligation shall occur and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, or if the
maturity of such obligation is accelerated, or any such obligation shall be
declared to be due and payable, or required to be prepaid prior to the
stated maturity thereof;
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(f) One or more judgments against the Borrower or attachments
against its Property, which in the aggregate exceed $10,000,000 not covered
by insurance, or the operation or result of which would interfere
materially and adversely with the conduct of the business of the Borrower,
shall remain unpaid, unstayed on appeal, undischarged, unbonded and
undismissed for a period of 30 days or more; or any Person shall have filed
any suit, action or proceeding which results in the granting of any form of
injunction or restraining order, temporary or otherwise, the compliance
with which would have a Material Adverse Effect, and which injunction or
restraining order is not dissolved (or otherwise terminated) or modified
within 30 days so as to eliminate that portion of such injunction or
restraining order which would have such Material Adverse Effect; or
(g) Any order, writ, warrant, garnishment or other process of any
court attaching, garnishing, distraining or otherwise freezing assets of
the Borrower in an amount equal to $10,000,000 or more in value in the
aggregate for all such orders, writs, warrants, garnishments shall remain
unstayed on appeal, undischarged or undismissed for a period of 30 days or
more; or
(h) (i) The Borrower shall commence any case, proceeding, or other
action (A) under any existing or future law of any jurisdiction, domestic
or foreign, relating to bankruptcy, insolvency, reorganization or relief of
debts, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its assets,
or the Borrower shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the Borrower any case,
proceeding or other action of a nature referred to in clause (i) above and
such case, proceeding or action shall not have been vacated, discharged or
stayed within 60 days from the entry thereof; or (iii) there shall be
commenced against the Borrower any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets, which results in
the entry of any order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days from
the entry thereof; or (iv) the Borrower shall consent to the institution
of, or fail to controvert in a timely and appropriate manner, any case,
proceeding or other action of a nature referred to above; or (v) the
Borrower shall file an answer admitting the material allegations of a
petition filed against it in any case, proceeding or other of a nature
referred to above; or (vi) the Borrower shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as
they become due; or (vii) the Borrower shall take corporate action for the
purpose of effecting any of the foregoing; or
(i) ERISA. (i) The Borrower or an ERISA Affiliate shall fail to
pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under a
Multiemployer Plan; (ii) the Borrower or an ERISA Affiliate shall fail to
satisfy its contribution requirements under Section 412(c)(11) of the Code,
whether or not it has sought a waiver under Section 412(d) of the Code;
(iii) the Unfunded Pension Liabilities of a Plan or Plans shall exceed
$50,000,000; (iv) a Plan that is intended to be qualified under
Section 401(a) of the Code shall lose its qualification, and such loss can
reasonably be expected to impose on the Borrower or an ERISA Affiliate
-47-<PAGE>
<PAGE>
liability (for additional taxes, to Plan participants, or otherwise) in
the aggregate amount of $50,000,000 or more; (v) the commencement or
increase of contributions to, the adoption of, or the amendment of a Plan
by, the Borrower or an ERISA Affiliate shall result in a net increase in
unfunded liabilities of the Borrower or an ERISA Affiliate in excess of
$50,000,000; or (vi) any combination of events listed in clause (iii)
through (vi) that involves a net increase in aggregate Unfunded Pension
Liabilities and unfunded liabilities in excess of $50,000,000 shall occur;
or
(j) All or substantially all of the Property of the Borrower or its
Subsidiaries shall be condemned, seized or appropriated, excluding Property
of a Subsidiary other than a Significant Subsidiary the condemnation,
seizure or appropriation of which would not have a Material Adverse Effect;
or
(k) Any Governmental Authority shall revoke or fail to renew any
license, permit or franchise of the Borrower or any of its Subsidiaries, or
the Borrower or any of its Subsidiaries shall for any reason lose any
license, permit or franchise, if such revocation, non-renewal or loss would
have a Material Adverse Effect; or
(l) Any Credit Document shall cease to be in full effect; or
(m) A Change in Control shall occur.
then, and at any time during the continuance of such Event of Default, the
Required Lenders, may, by written notice to the Borrower, take either or
both of the following actions, at the same or different times:
(i) terminate forthwith the Commitments and (ii) declare any Loans then
outstanding to be due and payable, whereupon the principal of the Loans so
declared to be due, together with accrued interest thereon and any other
unpaid amounts accrued under the Credit Documents, shall become forthwith
due and payable, without presentment, demand, protest or any other notice
of any kind (all of which are hereby expressly waived by the Borrower);
PROVIDED that, in the case of any Event of Default described in
Section 8.01(h) occurring with respect to the Borrower, the Commitments
shall automatically and immediately terminate and the principal of all
Loans then outstanding, together with accrued interest thereon and any
other unpaid amounts accrued under the Credit Documents, shall
automatically and immediately become due and payable without presentment,
demand, protest or any other notice of any kind (all of which are hereby
expressly waived by the Borrower).
ARTICLE IX
The Administrative Agent
Section 9.01 THE AGENCY. Each Lender appoints Union Bank of
Switzerland, New York Branch, as its agent hereunder and irrevocably
authorizes the Administrative Agent to take such action on its behalf and to
exercise such powers hereunder and thereunder as are specifically delegated to
the Administrative Agent by the terms hereof and thereof, together with such
powers as are reasonably incidental thereto, and the Administrative Agent
-48-<PAGE>
<PAGE>
hereby accepts such appointment subject to the terms hereof. The relationship
between the Administrative Agent and the Lenders shall be that of agent and
principal only and nothing herein shall be construed to constitute the
Administrative Agent a trustee or fiduciary for any Lender nor to impose on
the Administrative Agent duties or obligations other than those expressly
provided for herein.
Section 9.02 THE ADMINISTRATIVE AGENT'S DUTIES. The Administrative
Agent shall promptly forward to each Lender copies, or notify each Lender as
to the contents, of all notices received from the Borrower pursuant to the
terms of this Agreement and, in the event that the Borrower fails to pay when
due the principal of or interest on any Loan, the Administrative Agent shall
promptly give notice thereof to the Lenders. As to any other matter not
expressly provided for herein, the Administrative Agent shall have no duty to
act or refrain from acting with respect to the Borrower, except upon the
instructions of the Required Lenders. The Administrative Agent shall not be
bound by any waiver, amendment, supplement, or modification of this Agreement
which affects its duties hereunder, unless it shall have given its prior
written consent thereto. The Administrative Agent shall have no duty to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, covenants or agreements binding on the Borrower pursuant to this
Agreement nor shall the Administrative Agent be deemed to have knowledge of
the occurrence of any Default or Event of Default (other than a failure of the
Borrower to pay when due the principal or interest on any Loan), unless it
shall have received written notice from the Borrower or a Lender specifying
such Default or Event of Default and stating that such notice is a "Notice of
Default".
Section 9.03 LIMITATION OF LIABILITIES. Each of the Lenders and
the Borrower agree that (i) neither the Administrative Agent nor any of its
officers or employees shall be liable for any action taken or omitted to be
taken by any of them hereunder except for its or their own gross negligence or
wilful misconduct, (ii) neither the Administrative Agent nor any of its
officers or employees shall be liable for any action taken or omitted to be
taken by any of them in good faith in reliance upon the advice of counsel,
independent public accountants or other experts selected by the Administrative
Agent, and (iii) the Administrative Agent shall be entitled to rely upon any
notice, consent, certificate, statement or other document believed by it to be
genuine and correct and to have been signed and/or sent by the proper Persons.
Section 9.04 THE ADMINISTRATIVE AGENT AS A LENDER. The
Administrative Agent may, without any liability to account, maintain deposits
or credit balances for, invest in, lend money to and generally engage in any
kind of banking business with the Borrower or any Subsidiary or Affiliate of
the Borrower without any duty to account therefor to the other Lenders.
Section 9.05 LENDER CREDIT DECISION. Neither the Administrative
Agent, nor any of its Affiliates, officers or employees has any responsibility
for, gives any guaranty in respect of, nor makes any representation to the
Lenders as to, (i) the condition, financial or otherwise, of the Borrower or
any Subsidiary thereof or the truth of any representation or warranty given or
made in this Agreement, or in connection herewith or therewith or (ii) the
validity, execution, sufficiency, effectiveness, construction, adequacy,
enforceability or value of this Agreement or any other document or instrument
related hereto. Except as specifically provided herein, neither the
Administrative Agent nor any of its Affiliates, officers or employees shall
have any duty or responsibility, either initially or on a continuing basis, to
provide any Lender with any credit or other information with respect to the
-49-<PAGE>
<PAGE>
operations, business, property, condition or creditworthiness of the Borrower
or any of its Subsidiaries, whether such information comes into the
Administrative Agent's possession on or before the date hereof or at any time
thereafter. Each Lender acknowledges that (i) it has, independently and
without reliance upon the Administrative Agent or any other Lender, based on
such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and (ii) all
information reviewed by it in its credit analysis or otherwise in connection
herewith has been provided solely by or on behalf of the Borrower, and the
Administrative Agent has no responsibility for such information. Each Lender
also acknowledges that it will independently and without reliance upon the
Administrative Agent or any other Lender, based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under any Credit Document.
Section 9.06 INDEMNIFICATION. Each Lender agrees to indemnify the
Administrative Agent, to the extent not reimbursed by the Borrower, ratably in
proportion to its Commitment (as of the time of the incurrence of the
liability being indemnified against), from and against any and all
liabilities, obligations, losses, claims, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement,
or any action taken or omitted to be taken by the Administrative Agent
hereunder; provided, that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the gross negligence or
wilful misconduct of the Administrative Agent or any of its officers or
employees. Without limiting the foregoing, each Lender agrees to reimburse
the Administrative Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including fees and disbursements of counsel incurred
by the Administrative Agent in connection with the preparation, execution or
enforcement of, or legal advice in respect of rights or responsibilities
under, any Credit Document or any amendments or supplements thereto, to the
extent that the Administrative Agent is not reimbursed for such expenses by
the Borrower. Except for action expressly required of the Administrative
Agent hereunder, the Administrative Agent shall in all cases by fully
justified in failing or refusing to act hereunder unless it shall receive
further assurances to its satisfaction from the Lenders of their
indemnification obligations under this Section 9.06 against any and all
liability and expense that may be incurred by it by reason of taking or
continuing to take any such action.
Section 9.07 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative
Agent may resign at any time by giving written notice thereof to the Lenders
and the Borrower. Upon any such resignation, the Required Lenders shall have
the right to appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the resigning
Administrative Agent's giving of notice of resignation, the resigning
Administrative Agent may appoint a successor Administrative Agent, which shall
be a commercial bank organized or licensed under the laws of the United States
of America or of any State thereof and having a combined capital and surplus
of at least $250,000,000. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the resigned
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<PAGE>
Administrative Agent, and the resigned Administrative Agent shall be
discharged from its duties and obligations under this Agreement. After any
Administrative Agent's resignation, the provisions of this Article IX shall
continue to inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement.
ARTICLE X
Evidence of Loans; Transfers
Section 10.01 EVIDENCE OF LOANS. (a) REVOLVING CREDIT NOTES.
The Borrower's obligation to repay the Revolving Credit Loans shall be
evidenced by Revolving Credit Notes, one such payable to the order of each
Lender. The Revolving Credit Note of each Lender shall (i) be in the
principal amount of such Lender's Commitment, (ii) be dated the Effective Date
and (iii) be stated to mature on the Termination Date and bear interest from
its date until maturity on the principal balance (from time to time
outstanding thereunder) payable at the rates and in the manner provided
herein. Each Lender is authorized to indicate upon the grid attached to its
Revolving Credit Note all Revolving Credit Loans made by it pursuant to this
Agreement, interest elections and payments of principal and interest thereon.
Such notations shall be presumptive as to the aggregate unpaid principal
amount of all Revolving Credit Loans made by such Lender, and interest due
thereon, but the failure by any Lender to make such notations or the
inaccuracy or incompleteness of any such notations shall not affect the
obligations of the Borrower hereunder or under the Revolving Credit Notes.
(b) COMPETITIVE NOTES. The Borrower's obligation to repay the
Competitive Loans shall be evidenced by Competitive Notes payable to the order
of the Lenders. Each Competitive Note shall be payable to the Lender making
the Competitive Loan evidenced thereby, shall be in the principal amount of
such Competitive Loan, shall be dated the Borrowing Date for such Competitive
Loan and shall be stated to mature on the applicable Maturity Date and bear
interest from its date until maturity on the principal amount of such
Competitive Loan payable at the rates and in the manner provided herein.
Section 10.02 PARTICIPATIONS. Any Lender may at any time grant to
one or more financial institutions (each a "Participant") participating
interests in its Commitment or any or all of its Loans. In the event of any
such grant by a Lender of a participating interest to a Participant, whether
or not upon notice to the Borrower and the Administrative Agent, such Lender
shall remain responsible for the performance of its obligations hereunder,
and, except to the extent such participating interest has been granted
pursuant to Section 4.02(e), the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement pursuant
to which any Lender may grant such a participating interest shall provide that
such Lender shall retain the sole right and responsibility to enforce the
obligations of the Borrower hereunder including the right to approve any
amendment, modification or waiver of any provision of this Agreement;
PROVIDED, that such participation agreement may provide that such Lender will
not agree to any modification, amendment or waiver of this Agreement described
in clauses (i) through (vi), inclusive, of Section 11.06 without the consent
of the Participant.
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<PAGE>
Section 10.03 ASSIGNMENTS. (a) Any Lender may at any time assign
to one or more financial institutions (each an "Assignee") all, or a
proportionate part of all, of its rights and obligations under this Agreement,
and such Assignee shall assume such rights and obligations, pursuant to an
instrument, in substantially the form of EXHIBIT F (an "Assignment and
Acceptance"), executed by such Assignee and such transferring Lender, with
(and subject to) the signed consent of the Borrower and the Administrative
Agent (which consent shall not be unreasonably withheld); PROVIDED, that the
foregoing consent requirement shall not be applicable in the case of an
assignment or other transfer by any Lender to an affiliate of such Lender, to
another Lender or to a Federal Reserve Bank. Upon execution and delivery of
an Assignment and Acceptance and payment by such Assignee to such transferring
Lender of an amount equal to the purchase price agreed between such
transferring Lender and such Assignee and payment by the transferring Lender
or the Assignee of an assignment fee of $2000 to the Administrative Agent,
such Assignee shall be a Lender party to this Agreement and shall have all the
rights and obligations of a Lender with a Commitment as set forth in such
Assignment and Acceptance, and the transferring Lender shall be released from
its obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required.
(b) No Assignee of any transferring Lender's rights shall be
entitled to receive any greater payment under Section 4.03 or 4.04 than such
Lender would have been entitled to receive with respect to the rights trans-
ferred, unless such transfer is made with the Borrower's prior written consent
or by reason of the provisions of Section 4.04(c) requiring such transferring
Lender to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such payment
did not exist.
Section 10.04. CERTAIN PLEDGES. Notwithstanding any other
provision in this Agreement, any Lender may at any time create a security
interest in, or pledge, all or any portion of its rights under this Agreement
and any Note held by it in favor of any Federal Reserve Bank in accordance
with Federal Reserve Board Regulation A (or any successor provision) or U.S.
Treasury Regulation 31 C.F.R. Sec. 203.14 (or any successor provision), and such
Federal Reserve Bank may enforce such pledge or security interest in any
manner permitted under applicable law.
ARTICLE XI
Miscellaneous
SECTION 11.01 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
SECTION 11.02 WAIVER OF JURY. THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE LENDERS EACH HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PRO-
CEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR
-52-<PAGE>
<PAGE>
CONNECTED WITH THIS AGREEMENT, THE NOTES OR THE RELATIONSHIPS ESTABLISHED
HEREUNDER.
Section 11.03 JURISDICTION AND VENUE. The Borrower, the
Administrative Agent and the Lenders each hereby irrevocably submits to the
non-exclusive jurisdiction of any state or federal court in the Borough of
Manhattan, The City of New York for the purpose of any suit, action, proceed-
ing or judgment relating to or arising out of any Credit Document. The
Borrower, the Administrative Agent and the Lenders each hereby irrevocably
consents to the jurisdiction of any such court in any such action and to the
laying of venue in the Borough of Manhattan, The City of New York. The
Borrower, the Administrative Agent and the Lenders each hereby irrevocably
waives, to the fullest extent permitted by applicable law, any objection to
the laying of the venue of any such suit, action or proceeding brought in the
aforesaid courts and hereby irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum.
Section 11.04 SET-OFF. The Borrower hereby authorizes each Lender
(including each Lender in its capacity as a purchaser of a participation
interest pursuant to Section 4.02(e)) upon the occurrence of an Event of
Default and at any time and from time to time during the continuance thereof,
to the fullest extent permitted by law, to set-off and apply any and all
deposits (whether general or special, time or demand, provisional or final and
in whatever currency) at any time held, and other Indebtedness at any time
owing, by such Lender to or for the credit or the account of the Borrower
against any of the obligations of the Borrower, now or hereafter existing
under any Credit Document, held by such Lender, irrespective of whether such
Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of each Lender under this
Section 11.04 are in addition to other rights and remedies (including other
rights of set-off) which such Lender may have. Any Lender exercising its
rights under this Section 11.04 shall give notice thereof to the Borrower and
the Administrative Agent concurrently with or prior to the exercise of such
rights; PROVIDED that failure to give such notice shall not affect the
validity of such exercise.
Section 11.05 CONFIDENTIALITY. The Lenders and the Administrative
Agent agree (on behalf of themselves and each of their Affiliates, directors,
officers, employees and representatives) to take normal and reasonable
precautions and exercise due care to maintain the confidentiality of all
non-public information provided to them by the Borrower or any Subsidiary or by
the Administrative Agent on the Borrower's or any Subsidiary's behalf in
connection with this Agreement and neither the Administrative Agent, any
Lender, nor any of their Affiliates, directors, officers, employees and
representatives shall use any such information for any purpose or in any
manner other than pursuant to the terms contemplated by this Agreement, except
to the extent such information (a) was or becomes generally available to the
public other than as a result of a disclosure by the Administrative Agent or
any Lender, or (b) was or becomes available on a non-confidential basis from a
source other than the Borrower, provided that such source is not bound by a
confidentiality agreement with the Borrower known to the Administrative Agent
or affected Lender(s); PROVIDED that nothing herein shall limit the disclosure
of any such information (i) to the extent required by statute, rule,
regulation or judicial process; (ii) to counsel for any of the Lenders or the
Administrative Agent; (iii) to bank examiners, auditors or accountants;
(iv) to the Administrative Agent or any other Lender; (v) by the
Administrative Agent or any Lender to an Affiliate thereof who is bound by
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<PAGE>
this Section 11.05; (vi) in connection with any litigation relating to
enforcement of the Credit Documents or (vii) to any assignee or participant
(or prospective assignee or participant) so long as such assignee or
participant (or prospective assignee or participant) first executes and
delivers to the respective Lender a Confidentiality Agreement, in
substantially the form of EXHIBIT G.
Section 11.06 AMENDMENTS AND WAIVERS. Any provision of this
Agreement may be amended, modified, supplemented or waived, but only by a
written amendment or supplement, or written waiver, signed by the Borrower and
either the Required Lenders (and, if the rights or duties of the
Administrative Agent are affected thereby, by the Administrative Agent), or
the Administrative Agent with the consent of the Required Lenders; PROVIDED,
HOWEVER, that no such amendment, modification, or waiver shall, unless signed
by all the Lenders, or by the Administrative Agent with the consent of all the
Lenders, (i) increase or decrease the Commitment of any Lender or subject any
Lender to any additional obligation, (ii) reduce the principal of or rate of
interest on any Loan or any fees hereunder, (iii) postpone any payment of
principal of or interest on any Loan or any fees hereunder, (iv) postpone any
reduction or termination of any Commitment, (v) change the percentage, or type
of, the Commitments or of the aggregate unpaid principal amount of Loans, or
the number of Lenders, which shall be required for the Lenders or any of them
to take any action under this Section 11.06 or any other provision of this
Agreement, or (vi) amend, modify, supplement or waive the provisions of this
Section 11.06. Except to the extent expressly set forth therein, any waiver
shall be effective only in the specific instance and for the specific purpose
for which such waiver is given.
Section 11.07. CUMULATIVE RIGHTS; NO WAIVER. Each and every right
granted to the Administrative Agent and the Lenders hereunder or under any
other document delivered in connection herewith, or allowed them by law or
equity, shall be cumulative and not exclusive and may be exercised from time
to time. No failure on the part of the Administrative Agent or any Lender to
exercise, and no delay in exercising, any right will operate as a waiver
thereof, nor will any single or partial exercise by the Administrative Agent
or any Lender of any right preclude any other or future exercise thereof or
the exercise of any other right.
Section 11.08 NOTICES. (a) Any communication, demand or notice to
be given hereunder will be duly given when delivered in writing or by telecopy
to a party at its address as indicated below or such other address as such
party may specify in a notice to each other party hereto. A communication,
demand or notice given pursuant to this Section 11.08 shall be addressed:
If to the Borrower, at
Southwest Gas Corporation
5241 Spring Mountain Road
Las Vegas, Nevada 89102
Telecopy: (702) 364-3023
Attention: Treasury Services
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<PAGE>
If to the Administrative Agent, at
Union Bank of Switzerland,
New York Branch
299 Park Avenue
New York, New York 10171
Telecopy: (212) 821-3878
Attention: Andrew M. Merrill
If to any Lender, at its address indicated on SCHEDULE I hereto, or
at such other address as may be designated by such Lender in an Administrative
Questionnaire or other appropriate writing, delivered to the Administrative
Agent and the Borrower.
This Section 11.08 shall not apply to notices referred to in Article
II of this Agreement, except to the extent set forth therein.
(b) Unless otherwise provided to the contrary herein, any notice
which is required to be given in writing pursuant to the terms of this
Agreement may be given by telecopy.
Section 11.09. SEPARABILITY. In case any one or more of the
provisions contained in any Credit Document shall be invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions contained herein or in any other
Credit Document shall not in any way be affected or impaired thereby.
Section 11.10. PARTIES IN INTEREST. This Agreement shall be
binding upon and inure to the benefit of the Borrower and the Lenders and
their respective successors and assigns, except that the Borrower may not
assign any of its rights hereunder without the prior written consent of all of
the Lenders, and any purported assignment by the Borrower without such consent
shall be void.
Section 11.11. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by the different parties hereto on
separate counterparts, each of which when so executed and delivered shall be
an original, but all the counterparts shall together constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
SOUTHWEST GAS CORPORATION
By:/s/ Jeffrey W. Shaw
----------------------------------
Name: Jeffrey W. Shaw
Title: Vice President/Treasurer
(Signatures continue)
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<PAGE>
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH, as a Lender and as
Administrative Agent
By:/s/ Andrew M. Merrill
----------------------------------
Name: Andrew M. Merrill
Title: Vice President
By:/s/ Karen Roth
----------------------------------
Name: Karen L. Roth
Title: Assistant Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Lender and as a Syndication Agent
By:/s/ Vanessa Sheh Meyer
----------------------------------
Name: Vanessa Sheh Meyer
Title: Vice President
BANK OF MONTREAL, as a Lender and
as a Syndication Agent
By:/s/ Warren R. Wimmer
----------------------------------
Name: Warren R. Wimmer
Title: Director
THE INDUSTRIAL BANK OF JAPAN,
LTD., LOS ANGELES AGENCY, as a
Lender and as a Co-Agent
By:/s/ HW Jack
----------------------------------
Name: H. W. Jack
Title: Senior Deputy General Manager
(Signatures continue)
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<PAGE>
THE BANK OF NEW YORK, as a Lender
By:/s/ Ian K. Stewart
----------------------------------
Name: Ian K. Stewart
Title: Senior Vice President
CREDIT LYONNAIS LOS ANGELES
BRANCH, as a Lender
By:/s/ Dianne M. Scott
----------------------------------
Name: Dianne M. Scott
Title: Vice President
THE DAI-ICHI KANGYO BANK, LIMITED,
LOS ANGELES AGENCY, as a Lender
By:/s/ M. Morishita
----------------------------------
Name: Masatsugu Morishita
Title: Sr. Vice President & Joint
General Manager
KREDIETBANK N.V., GRAND CAYMAN
BRANCH, as a Lender
By:/s/ R Snauffer Tod Angus
----------------------------------
Name: Robert Snauffer Tod R. Angus
Title: Vice President Vice President
MELLON BANK, N.A., as a Lender
By:/s/ Scott Hennessee
----------------------------------
Name: Scott Hennessee
Title: Vice President
(Signatures continue)
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<PAGE>
SOCIETE GENERALE, LOS ANGELES
BRANCH, as a Lender
By:/s/ George Chen
----------------------------------
Name: George Y. L. Chen
Title: Vice President
UNION BANK OF CALIFORNIA, as a
Lender
By:/s/ Jason DiNapoli
----------------------------------
Name: Jason P. DiNapoli
Title: Vice President
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<PAGE>
Schedule I
----------
<TABLE>
<CAPTION>
Lenders and Commitments
-----------------------
Commitment as of Address for
Lender the Effective Date Notices
------ ------------------ -----------
<S> <C> <C> <C>
Union Bank of Switzerland, New $50,000,000 299 Park Avenue
York Branch New York, NY 10171
Attn: Andrew M. Merrill
Bank of America National Trust
and Savings Association $50,000,000 555 South Flower Street, 10th Floor
Credit Products - Utilities #5154
Los Angeles, CA 90071
Attn: Vanessa Meyer, VP
Bank of Montreal $50,000,000 601 South Figueroa Street
Suite 4900
Los Angeles, CA 90017
Attn: Daniel Morihiro
The Industrial Bank of Japan, $40,000,000 350 South Grand Avenue
Ltd., Los Angeles Agency Suite 1500
Los Angeles, CA 90071
Attn: Michael Jones, VP
The Bank of New York $30,000,000 One Wall Street, 19th Floor
New York, NY 10286
Attn: Steve Kalachman,
The Energy Industries Division
Credit Lyonnais Los Angeles $30,000,000 515 South Flower Street,
Branch 22nd Floor
Los Angeles, CA 90071
Attn: Glenn Harvey, VP
The Dai-Ichi Kangyo Bank, $20,000,000 555 West 5th Street, 5th Floor
Limited, Los Angeles Agency Los Angeles, CA 90013
Attn: Israel Carmeli
Kredietbank N.V., Grand $15,000,000 550 South Hope Street
Cayman Branch Suite 1775
Los Angeles, CA 90071
Attn: Jean Frammolino
Mellon Bank, N.A. $20,000,000 One Mellon Bank Center
Room 4425
Pittsburgh, PA 15258
Attn: Scott Hennessee, VP<PAGE>
<PAGE>
Societe Generale, Los Angeles $25,000,000 2029 Century Park East
Branch Suite 2900
Los Angeles, CA 90067
Attn: George Chen, VP
Union Bank of California $20,000,000 445 South Figueroa Street
15th Floor
Los Angeles, CA 90071
Attn: Jason P. DiNapoli, VP
Energy Capital Services (220)
/TABLE
<PAGE>
<PAGE>
Exhibit A
---------
Form of Borrowing Request For Revolving Credit Loans
----------------------------------------------------
[Date]
Union Bank of Switzerland,
New York Branch
299 Park Avenue
New York, New York 10171
Attention: ______________
Borrowing Request for Revolving Credit Loans
--------------------------------------------
Ladies and Gentlemen:
Reference is made to the Revolving Credit Agreement, dated as of
June 12, 1997 (as amended, modified or supplemented from time to time, the
"Credit Agreement"), among Southwest Gas Corporation (the "Borrower"), the
Lenders from time to time parties thereto and Union Bank of Switzerland, New
York Branch, as Administrative Agent. Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to such terms in the
Credit Agreement.
The Borrower hereby gives you notice, pursuant to Section 2.02 of
the Credit Agreement, that it requests Revolving Credit Loans, and in that
connection sets forth below the terms on which such Revolving Credit Loans are
requested to be made:
(A) Borrowing Date 1/
- ------------------
(B) Aggregate Principal Amount 2/ $
- ------------------
(C) Interest Rate Basis [ABR] [Eurodollar] Loan
____________________
1/ Must be a Business Day.
- -
2/ Must be equal to $[5,000,000] or an integral multiple of $[1,000,000] in
- - excess thereof.
-1-<PAGE>
<PAGE>
(D) Interest Period and the
last day thereof 3/
- -------------------
Very truly yours,
SOUTHWEST GAS CORPORATION
By:
----------------------
Title:
____________________
3/ One, two, three or six months in the case of Eurodollar Loans. Not
- - applicable to ABR Loans.
-2-<PAGE>
<PAGE>
Exhibit B-1
-----------
Form of Borrowing Request for Competitive Loans
-----------------------------------------------
[Date]
Union Bank of Switzerland,
New York Branch
299 Park Avenue
New York, New York 10171
Attention:
----------------
Request for Competitive Bids
----------------------------
Ladies and Gentlemen:
Reference is made to the Revolving Credit Agreement, dated as of
June 12, 1997 (as amended, modified or supplemented from time to time, the
"Credit Agreement"), among Southwest Gas Corporation (the "Borrower"), the
Lenders from time to time parties thereto and Union Bank of Switzerland, New
York Branch, as Administrative Agent. Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to such terms in the
Credit Agreement.
The Borrower hereby gives you notice pursuant to Section 2.06 of the
Credit Agreement that it requests the Lenders to make offers to make
Competitive Loans under the Credit Agreement, and in that connection sets
forth below the terms on which such Competitive Loans are requested to be
made:
(A) Borrowing Date 1/
- ----------------------------
(B) Aggregate Principal
Amount 2/
- ----------------------------
(C) Maturity Date 3/
- ----------------------------
(D) Interest Rate Basis [Absolute Rate] [Eurodollar]
----------------------------<PAGE>
<PAGE>
(E) Interest Period, if any 4/
- ----------------------------
Very truly yours,
SOUTHWEST GAS CORPORATION
By:
----------------------
Title:
- -------------------
1/ Must be a Business Day.
- -
2/ Must be an amount not less than $[5,000,000], or an integral multiple
- - of $[1,000,000] in excess thereof.
3/ At least seven days after the Borrowing Date and not more than (i) 180
- - days after the Borrowing Date, in the case of Absolute Rate Competitive
Loans, or (ii) six months after the Borrowing Date, in the case of
Eurodollar Competitive Loans.
4/ One, two, three or six months with respect to Eurodollar Competitive
- - Loans. Not applicable with respect to Absolute Rate Competitive Loans.
-2-<PAGE>
<PAGE>
Exhibit B-2
-----------
Form of Competitive Bid
-----------------------
[Date]
Union Bank of Switzerland,
New York Branch
299 Park Avenue
New York, New York 10171
Attention:
----------------
Competitive Bid
---------------
Ladies and Gentlemen:
Reference is made to the Revolving Credit Agreement, dated as of
June 12, 1997 (as amended, modified or supplemented from time to time, the
"Credit Agreement"), among Southwest Gas Corporation (the "Borrower"), the
Lenders from time to time parties thereto and Union Bank of Switzerland, New
York Branch, as Administrative Agent. Capitalized terms used but not defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
[NAME OF LENDER] hereby submits a Competitive Bid to make an
[Absolute Rate] [Eurodollar] Competitive Loan pursuant to Section 2.06 of the
Credit Agreement, in response to the Borrowing Request made by the Borrower on
______________, 19__, and in that connection sets forth below the terms on
which such Competitive Bid is made:
(A) Principal Amount 4/
- --------------------
(B) Maturity Date --------------------
(C) Competitive Bid
[Rate] [Margin] 5/
- --------------------
____________________
4/ Principal amount must be at least $[5,000,000], or an integral multiple
- - of $[1,000,000] in excess thereof, and not greater than the requested
Competitive Loan. Multiple bids may be accepted by the Administrative
Agent.
5/ In the case of Absolute Rate Competitive Loans, __%; in the case of
- - Eurodollar Competitive Loans, a margin (+/- __%) over LIBOR.<PAGE>
<PAGE>
The undersigned hereby confirms that it will, subject only to the
conditions set forth in the Credit Agreement, extend credit to the Borrower
upon acceptance by the Borrower of this Competitive Bid in accordance with
Section 2.06 of the Credit Agreement.
Very truly yours,
[NAME OF LENDER]
By:
-------------------------
Title:
-2-<PAGE>
<PAGE>
Exhibit B-3
-----------
Form of Competitive Bid Accept/Reject Letter
--------------------------------------------
[Date]
Union Bank of Switzerland,
New York Branch
299 Park Avenue
New York, New York 10171
Attention:
--------------------
Competitive Bid Acceptance/Reject Letter
----------------------------------------
Ladies and Gentlemen:
Southwest Gas Corporation (the "Borrower") refers to the Revolving
Credit Agreement, dated as of June 12, 1997 (as amended, modified or
supplemented or extended from time to time, the "Credit Agreement"), among the
Borrower, the Lenders from time to time parties thereto and Union Bank of
Switzerland, New York Branch, as Administrative Agent.
In accordance with Section 2.06 of the Credit Agreement, we have
received a summary of bids in connection with our Borrowing Request, dated
________, 199_, and in accordance with Section 2.06 of the Credit Agreement,
we hereby accept the following Competitive Bids for Competitive Loans to be
made on _________, 199_, with a Maturity Date of ____________, 199_:
Competitive
Principal Amount Rate/Margin Lender
---------------- ----------- ------
%/+/-. %
We hereby reject the following bids:<PAGE>
<PAGE>
Competitive Advance
Principal Amount Rate/Margin Lender
---------------- ------------------- ------
%/+/-. %
Very truly yours,
SOUTHWEST GAS CORPORATION
By:
-----------------------
Title:
-2-<PAGE>
<PAGE>
Exhibit C
---------
Form of Continuation/Conversion Request
---------------------------------------
[Date]
Union Bank of Switzerland,
New York Branch
299 Park Avenue
New York, New York 10171
Attention:
----------------
Continuation/Conversion Request
-------------------------------
Ladies and Gentlemen:
Reference is made to the Revolving Credit Agreement, dated as of
June 12, 1997 (as amended, modified or supplemented from time to time, the
"Credit Agreement"), among Southwest Gas Corporation (the "Borrower"), the
Lenders from time to time parties thereto and Union Bank of Switzerland,
New York Branch, as Administrative Agent. Capitalized terms used herein but
not otherwise defined herein shall have the meanings ascribed to such terms in
the Credit Agreement.
The Borrower hereby requests, pursuant to Section 3.05(a) of the
Credit Agreement, that on __________, 199_:
(1) $___,000,000 of the presently outstanding principal amount of
Revolving Credit Loans originally made on ___________, 19__ [and
$_________ of the presently outstanding principal amount of the Revolving
Credit Loans originally made on ________, 19__],
(2) presently being maintained as [ABR] [Eurodollar] Loans,
(3) be [converted into] [continued as], [Eurodollar Loans having an
Interest Period of [one][two][three][six] months].
Very truly yours,
SOUTHWEST GAS CORPORATION
By:
----------------------
Title:<PAGE>
<PAGE>
Exhibit D-1
-----------
Form of Revolving Credit Note
-----------------------------
PROMISSORY NOTE
[Principal Amount] [Date]
SOUTHWEST GAS CORPORATION, a California corporation (the
"Borrower"), for value received, promises to pay to the order of [LENDER] (the
"Lender"), on the Termination Date (as defined in the Credit Agreement
referred to below), the principal sum of [PRINCIPAL AMOUNT IN DOLLARS] or, if
less, the aggregate principal amount of the Revolving Credit Loans made by the
Lender to the Borrower pursuant to that certain Revolving Credit Agreement,
dated as of June 12, 1997 (as amended, modified or supplemented from time to
time, the "Credit Agreement"), among the Borrower, the Lenders from time to
time parties thereto and Union Bank of Switzerland, New York Branch, as
Administrative Agent.
The Borrower also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding, from the date hereof until the
date of repayment, at the rate or rates per annum and on the date or dates
specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful
money of the United States of America in funds immediately available to the
Lender at its office or offices designated in accordance with the Credit
Agreement.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive diligence, presentment, demand, protest and notice of any kind
whatsoever. The failure or forbearance by the holder to exercise any of its
rights hereunder in any particular instance shall in no event constitute a
waiver thereof.
All borrowings evidenced by this Note and all payments and
prepayments of the principal hereof and interest hereon and the respective
dates thereof shall be endorsed by the holder of this Note on the schedule
attached hereto and made a part hereof, or on a continuation thereof which
shall be attached hereto and made a part hereof; PROVIDED, HOWEVER, that any
failure of the holder of this Note to make such a notation or any error in
such notation shall in no manner affect the validity or enforceability of the
obligation of the Borrower to make payments of principal and interest in
accordance with the terms of this Note and the Credit Agreement.
This Note is one of the Revolving Credit Notes referred to in the
Credit Agreement, which, among other things, contains provisions for the
acceleration of the maturity hereof upon the happening of certain events, for
optional prepayment of the principal hereof prior to the maturity thereof and
for the amendment or waiver of certain provisions of the Credit Agreement
and/or this Note, all upon the terms and conditions therein specified.
Capitalized terms used and not otherwise defined herein have the meanings
ascribed thereto in the Credit Agreement.<PAGE>
<PAGE>
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
This Note is not negotiable and interests herein may be assigned
only upon the terms and conditions specified in the Credit Agreement.
SOUTHWEST GAS CORPORATION
By:
-----------------------
Title:
-2-<PAGE>
<PAGE>
<TABLE>
REVOLVING CREDIT LOANS AND PRINCIPAL PAYMENTS
<CAPTION>
Amount of Revolving Amount of Principal Amount of Unpaid
Credit Loans Made Repaid Principal Balance
------------------- ------------------- -----------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Euro Interest Euro Euro
ABR dollar Period if ABR dollar ABR dollar Notation
Date Loan Loan applicable) Loan Loan Loan Loan Total Made By
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
/TABLE
<PAGE>
<PAGE>
Exhibit D-2
-----------
Form of Competitive Note
------------------------
PROMISSORY NOTE
[Principal Amount] [Date]
SOUTHWEST GAS CORPORATION, a California corporation (the
"Borrower"), for value received, promises to pay to the order of [LENDER] (the
"Lender"), on [MATURITY DATE], the principal sum of [PRINCIPAL AMOUNT]
pursuant to that certain Revolving Credit Agreement, dated as of June 12, 1997
(as amended, modified or supplemented from time to time, the "Credit
Agreement"), among the Borrower, the Lenders from time to time thereto and
Union Bank of Switzerland, New York Branch, as Administrative Agent.
The Borrower also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding, from the date hereof until the
date of repayment, at the rate or rates per annum and on the date or dates
determined pursuant to Section 2.06 of the Credit Agreement.
Payments of both principal and interest are to be made in lawful
money of the United States of America in funds immediately available to the
Lender at its office or offices designated in accordance with the Credit
Agreement.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive diligence, presentment, demand, protest and notice of any kind
whatsoever. The failure or forbearance by the holder to exercise any of its
rights hereunder in any particular instance shall in no event constitute a
waiver thereof.
This Note is one of Competitive Notes referred to in the Credit
Agreement, which, among other things, contains provisions for the acceleration
of the maturity hereof upon the happening of certain events and for the
amendment or waiver of certain provisions of the Credit Agreement and/or this
Note, all upon the terms and conditions therein specified. Capitalized terms
used and not otherwise defined herein have the meanings ascribed thereto in
the Credit Agreement.
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
This Note is not negotiable and interests herein may be assigned
only upon the terms and conditions specified in the Credit Agreement.
SOUTHWEST GAS CORPORATION
By:
--------------------------
Title:<PAGE>
<PAGE>
Exhibit E
---------
Form of Opinion of
Counsel for the Borrower
------------------------
[to come]<PAGE>
<PAGE>
Exhibit F
---------
Form of Assignment and Acceptance
---------------------------------
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Revolving Credit Agreement, dated as of
June 12, 1997 (as amended, modified or supplemented from time to time, the
"Credit Agreement"), among Southwest Gas Corporation (the "Borrower"), the
Lenders from time to time parties thereto and Union Bank of Switzerland, as
Administrative Agent. Capitalized terms defined in the Credit Agreement are
used herein with the same meanings.
Section 1. ASSIGNMENT AND ACCEPTANCE. The Assignor identified in
ANNEX 1 hereto (the "Assignor") hereby sells and assigns, without recourse, to
the Assignee identified in ANNEX 1 hereto (the "Assignee"), and the Assignee
hereby purchases and assumes, without recourse, from the Assignor, effective
as of the Transfer Effective Date set forth in ANNEX 1 hereto, the interests
set forth on Annex 1 hereto (the "Assigned Interest") in the Assignor's rights
and obligations under the Credit Agreement, including, without limitation, the
interests set forth on ANNEX 1 in the Commitment of the Assignor on the
Transfer Effective Date and the Competitive Loans and Revolving Credit Loans
owing to the Assignor which are outstanding on the Transfer Effective Date.
Each of the Assignor and the Assignee hereby makes and agrees to be bound by
all the representations, warranties and agreements set forth in
Section 10.10(d) of the Credit Agreement, a copy of which has been received by
the Assignee. From and after the Transfer Effective Date (i) the Assignee
shall be a party to and be bound by the provisions of the Credit Agreement
and, to the extent of the interests assigned by this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and
(ii) the Assignor shall, to the extent of the interests assigned by this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
Section 2. OTHER DOCUMENTATION. This Assignment and Acceptance is
being delivered to the Administrative Agent together with a properly completed
Administrative Questionnaire, attached as Annex 2 hereto, if the Assignee is
not already a Lender under the Credit Agreement.
Section 3. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNOR. The
Assignor (i) represents and warrants that, as of the date hereof, it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is held by it free and clear of any adverse claim;
(ii) makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with the Credit Agreement, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement, or
any other instrument or document executed or furnished pursuant thereto; and
(iii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under the Credit
Agreement or any other instrument or document furnished pursuant thereto.<PAGE>
<PAGE>
Section 4. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNEE. The
Assignee (a) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements delivered on or before the
date hereof pursuant to Sections 5.01(k) and 7.01(a) thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (b) agrees
that it will, independently and without reliance upon the Administrative
Agent, the Assignor or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking any action under the Credit
Documents; (c) appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under the Credit
Documents as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (d) agrees
that it will perform in accordance with their terms all of the obligations
which by the terms of the Credit Documents are required to be performed by it
as a Lender; and (e) if the Assignee is organized under the laws of a
jurisdiction outside the United States, confirms to the Borrower (and is
providing to the Administrative Agent and the Borrower Internal Revenue
Service form 1001 or 4224, as appropriate, or any successor form prescribed by
the Internal Revenue Service) that (i) the Assignee is entitled to benefits
under an income tax treaty to which the United States is a party that reduces
the rate of withholding tax on payments under the Credit Agreement or (ii)
that the income receivable pursuant to the Credit Agreement is effectively
connected with the conduct of a trade or business in the United States.
Section 5. GOVERNING LAW. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Annex 1 hereto.
-2-<PAGE>
<PAGE>
Annex 1 to Assignment and Acceptance
------------------------------------
Date of Assignment:
----------------------------------------------------------
Legal Name of Assignor:
------------------------------------------------------
Legal Name of Assignee:
------------------------------------------------------
Assignee's Address for Notices:
----------------------------------------------
----------------------------------------------
Transfer Effective Date of Assignment
(may not be fewer than two Business
Days after the Date of Assignment):
------------------------------------------
<TABLE>
<CAPTION>
Principal Amount Assigned (and Percentage Assigned of Commitment
identifying information as to (set forth, to at least 8 decimals, as a
individual Competitive Loans) percentage of the Total Commitment)
------------------------------- ----------------------------------------
<S> <S> <S>
Commitment Assigned: $ %
Revolving Credit Loans: $
Competitive Loans: $
</TABLE>
The terms set forth above
are hereby agreed to: Consent given:
, as Assignor SOUTHWEST GAS CORPORATION
- --------------------
By: By:
------------------------------ -------------------------------
Name: Name:
Title: Title:
, as Assignee
- --------------------
By:
------------------------------
Name:
Title:<PAGE>
<PAGE>
Annex 2 to Assignment and Acceptance
------------------------------------
LEGAL NAME OF ASSIGNEE TO APPEAR IN DOCUMENTATION:
- -------------------------------------------------
- ------------------------------------------------------------------------------
GENERAL INFORMATION
- -------------------
ABR LENDING OFFICE:
Institution Name:
------------------------------------------------------------
Street Address:
--------------------------------------------------------------
City, State, Country, Zip Code:
----------------------------------------------
EURODOLLAR LENDING OFFICE:
Institution Name:
------------------------------------------------------------
Street Address:
--------------------------------------------------------------
City, State, Country, Zip Code:
----------------------------------------------
COMPETITIVE LOAN LENDING OFFICE:
Institution Name:
------------------------------------------------------------
Street Address:
--------------------------------------------------------------
City, State, Country, Zip Code:
----------------------------------------------
CONTACTS/NOTIFICATION METHODS
CREDIT CONTACTS:
Primary Contact:
-------------------------------------------------------------
Street Address:
--------------------------------------------------------------
City, State, Country, Zip Code:
----------------------------------------------<PAGE>
<PAGE>
Phone Number:
----------------------------------------------------------------
FAX Number:
------------------------------------------------------------------
Backup Contact:
--------------------------------------------------------------
Street Address:
--------------------------------------------------------------
City, State, Country, Zip Code:
----------------------------------------------
Phone Number:
----------------------------------------------------------------
FAX Number:
------------------------------------------------------------------
ADMINISTRATIVE CONTACTS -- BORROWINGS, PAYDOWNS, INTEREST, FEES, ETC.
Contact:
---------------------------------------------------------------------
Street Address:
--------------------------------------------------------------
City, State, Country, Zip Code:
----------------------------------------------
Phone Number:
----------------------------------------------------------------
FAX Number:
------------------------------------------------------------------
COMPETITIVE LOAN NOTIFICATION:
Contact:
---------------------------------------------------------------------
Street Address:
--------------------------------------------------------------
City, State, Country, Zip Code:
----------------------------------------------
Phone Number:
----------------------------------------------------------------
FAX Number:
------------------------------------------------------------------
-2-<PAGE>
<PAGE>
PAYMENT INSTRUCTIONS
- --------------------
Name of bank where funds are to be transferred:
-------------------------------------------------------------------------
Routing Transit/ABA number of bank where funds are to be transferred:
-------------------------------------------------------------------------
Name of Account, if applicable:
----------------------------------------------
Account Number:
--------------------------------------------------------------
Additional Information:
------------------------------------------------------
- ------------------------------------------------------------------------------
TAX WITHHOLDING
- ---------------
Non Resident Alien Y* N
---------- ----------
* Form 4224 Enclosed
Tax ID Number
-------------------
MAILINGS
- --------
Please specify who should receive financial information:
Name:
------------------------------------------------------------------------
Street Address:
--------------------------------------------------------------
City, State, Country, Zip Code:
----------------------------------------------
-3-<PAGE>
<PAGE>
Exhibit G
---------
Form of Confidentiality Agreement
---------------------------------
[Date]
[Insert Name and
Address of Prospective
Participant or Assignee]
Re: Revolving Credit Agreement, dated as of June 12, 1997,
among Southwest Gas Corporation, the Lenders from time
to time parties thereto and Union Bank of Switzerland,
New York Branch, as Administrative Agent
------------------------------------------------------
Dear :
---------------
As a Lender party to the above-referenced Credit Agreement (the
"Credit Agreement"), we have agreed with Southwest Gas Corporation (the
"Borrower"), pursuant to Section 11.05 of the Credit Agreement, to use our
best efforts to keep confidential, except as otherwise provided therein, all
Confidential Information (as defined in the Credit Agreement) regarding the
Borrower and its Subsidiaries.
As provided in said Section 11.05, we are permitted to provide you,
as a prospective participant or assignee, with certain of such Confidential
Information subject to the execution and delivery by you, prior to receiving
such non-public information, of a Confidentiality Agreement in this form.
Such information will not be made available to you until your execution and
return to us of this Confidentiality Agreement.
Accordingly, in consideration of the foregoing, you agree (on behalf
of yourself and each of your affiliates, directors, officers, employees and
representatives) that (A) such information will not be used by you except in
connection with a proposed [participation] [assignment] to you pursuant to the
Credit Agreement and (B) you shall use your best efforts in accordance with
your customary procedures for handling confidential information and in
accordance with safe and sound banking practices, to keep such information
confidential; PROVIDED that nothing herein shall limit the disclosure of any
such information (i) to the extent required by statute, rule, regulation or
judicial process, (ii) to your counsel or to counsel for any of the Lenders or
the Administrative Agent, (iii) to bank examiners, auditors or accountants,
(iv) to the Administrative Agent or any other Lender, and (v) in connection
with any litigation relating to enforcement of the Credit Documents; PROVIDED
FURTHER, that, unless specifically prohibited by applicable law or court
order, you agree, prior to disclosure thereof, to notify the Borrower of any
request for disclosure of any such non-public information (x) by any
Governmental Authority or representative thereof (other than any such request
in connection with an examination of your financial condition by such
Governmental Authority) or (y) pursuant to legal process.<PAGE>
<PAGE>
Please indicate your agreement to the foregoing by signing at the
place provided below the enclosed copy of this Confidentiality Agreement.
Very truly yours,
[Insert Name of Lender]
By
------------------------
Agreed as of the date of this letter.
[Insert name of prospective
participant or assignee]
By:
-------------------------<PAGE>
<PAGE>
<TABLE>
EXHIBIT 12
SOUTHWEST GAS CORPORATION
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(Thousands of dollars)
<CAPTION>
FOR THE TWELVE MONTHS ENDED
----------------------------------------------------------------------------
JUNE 30, DECEMBER 31,
----------- ---------------------------------------------------------------
CONTINUING OPERATIONS 1997 1996 1995 1994 1993 1992
----------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
1. Fixed charges:
A) Interest expense $ 58,912 $ 54,674 $ 52,844 $ 48,688 $ 40,883 $ 35,533
B) Amortization 1,285 1,494 1,569 1,426 1,330 1,183
C) Interest portion of rentals 7,468 6,629 4,435 4,743 4,556 4,468
D) Preferred securities distributions 5,475 5,475 913 -- -- --
----------- ----------- ----------- ----------- ----------- -----------
Total fixed charges $ 73,140 $ 68,272 $ 59,761 $ 54,857 $ 46,769 $ 41,184
=========== =========== =========== =========== =========== ===========
2. Earnings (as defined):
E) Pretax income from
continuing operations $ 20,432 $ 10,448 $ 3,493 $ 38,119 $ 21,959 $ 49,752
Fixed Charges (1. above) 73,140 68,272 59,761 54,857 46,769 41,184
----------- ----------- ----------- ----------- ----------- -----------
Total earnings as defined $ 93,572 $ 78,720 $ 63,254 $ 92,976 $ 68,728 $ 90,936
=========== =========== =========== =========== =========== ===========
3. Ratio of earnings to fixed charges 1.28 1.15 1.06 1.69 1.47 2.21
=========== =========== =========== =========== =========== ===========
FOR THE TWELVE MONTHS ENDED
----------------------------------------------------------------------------
ADJUSTED FOR INTEREST ALLOCATED TO JUNE 30, DECEMBER 31,
DISCONTINUED OPERATIONS ----------- ---------------------------------------------------------------
1997 1996 1995 1994 1993 1992
----------- ----------- ----------- ----------- ----------- -----------
1. Fixed charges
A) Interest expense $ 58,912 $ 54,674 $ 52,844 $ 48,688 $ 40,883 $ 35,533
B) Amortization 1,285 1,494 1,569 1,426 1,330 1,183
C) Interest portion of rentals 7,468 6,629 4,435 4,743 4,556 4,468
D) Preferred securities distributions 5,475 5,475 913 -- -- --
E) Allocated interest [1] -- -- 9,636 7,874 7,874 7,333
----------- ----------- ----------- ----------- ----------- -----------
Total fixed charges $ 73,140 $ 68,272 $ 69,397 $ 62,731 $ 54,643 $ 48,517
=========== =========== =========== =========== =========== ===========
2. Earnings (as defined):
F) Pretax income from
continuing operations $ 20,432 $ 10,448 $ 3,493 $ 38,119 $ 21,959 $ 49,752
Fixed Charges (1. above) 73,140 68,272 69,397 62,731 54,643 48,517
----------- ----------- ----------- ----------- ----------- -----------
Total earnings as defined $ 93,572 $ 78,720 $ 72,890 $ 100,850 $ 76,602 $ 98,269
=========== =========== =========== =========== =========== ===========
3. Ratio of earnings to fixed charges 1.28 1.15 1.05 1.61 1.40 2.03
=========== =========== =========== =========== =========== ===========
</TABLE>
[1] Represents allocated interest through the period ended December 31, 1995.
Carrying costs for the period subsequent to year end through the
disposition of the discontinued operations were accrued and recorded as
disposal costs.
<PAGE>
<PAGE>
<TABLE>
EXHIBIT 12
SOUTHWEST GAS CORPORATION
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES AND PREFERRED DIVIDENDS
(Thousands of dollars)
<CAPTION>
FOR THE TWELVE MONTHS ENDED
----------------------------------------------------------------------------
JUNE 30, DECEMBER 31,
----------- ---------------------------------------------------------------
CONTINUING OPERATIONS 1997 1996 1995 1994 1993 1992
----------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
1. Combined fixed charges:
A) Total fixed charges $ 73,140 $ 68,272 $ 59,761 $ 54,857 $ 46,769 $ 41,184
B) Preferred dividends [1] -- -- 404 826 1,183 1,623
----------- ----------- ----------- ----------- ----------- -----------
Total fixed charges and
preferred dividends $ 73,140 $ 68,272 $ 60,165 $ 55,683 $ 47,952 $ 42,807
=========== =========== =========== =========== =========== ===========
2. Earnings $ 93,572 $ 78,720 $ 63,254 $ 92,976 $ 68,728 $ 90,936
=========== =========== =========== =========== =========== ===========
3. Ratio of earnings to fixed charges
and preferred dividends 1.28 1.15 1.05 1.67 1.43 2.12
=========== =========== =========== =========== =========== ===========
FOR THE TWELVE MONTHS ENDED
----------------------------------------------------------------------------
ADJUSTED FOR INTEREST ALLOCATED TO JUNE 30, DECEMBER 31,
DISCONTINUED OPERATIONS ----------- ---------------------------------------------------------------
1997 1996 1995 1994 1993 1992
----------- ----------- ----------- ----------- ----------- -----------
1. Combined fixed charges
A) Total fixed charges $ 73,140 $ 68,272 $ 69,397 $ 62,731 $ 54,643 $ 48,517
B) Preferred dividends [1] -- -- 404 826 1,183 1,623
----------- ----------- ----------- ----------- ----------- -----------
Total fixed charges and
preferred dividends $ 73,140 $ 68,272 $ 69,801 $ 63,557 $ 55,826 $ 50,140
=========== =========== =========== =========== =========== ===========
2. Earnings $ 93,572 $ 78,720 $ 72,890 $ 100,850 $ 76,602 $ 98,269
=========== =========== =========== =========== =========== ===========
3. Ratio of earnings to fixed charges
and preferred dividends 1.28 1.15 1.04 1.59 1.37 1.96
=========== =========== =========== =========== =========== ===========
</TABLE>
[1] Preferred and preference dividends have been adjusted to represent the
pretax earnings necessary to cover such dividend requirements.
<TABLE> <S> <C>
<ARTICLE> UT
<LEGEND>
This schedule contains summary financial information extracted from Southwest Gas
Corporation's Form 10-Q for the quarter ended June 30, 1997 and is qualified in
its entirety by reference to such financial statements.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> JUN-30-1997
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 1,319,777
<OTHER-PROPERTY-AND-INVEST> 71,039
<TOTAL-CURRENT-ASSETS> 183,662
<TOTAL-DEFERRED-CHARGES> 50,484
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 1,624,962
<COMMON> 28,719
<CAPITAL-SURPLUS-PAID-IN> 354,942
<RETAINED-EARNINGS> (152)
<TOTAL-COMMON-STOCKHOLDERS-EQ> 383,509
0
0
<LONG-TERM-DEBT-NET> 754,442
<SHORT-TERM-NOTES> 88,420
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 6,347
0
<CAPITAL-LEASE-OBLIGATIONS> 0
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 392,244<F1>
<TOT-CAPITALIZATION-AND-LIAB> 1,624,962
<GROSS-OPERATING-REVENUE> 372,169
<INCOME-TAX-EXPENSE> 5,586
<OTHER-OPERATING-EXPENSES> 324,636
<TOTAL-OPERATING-EXPENSES> 324,636
<OPERATING-INCOME-LOSS> 47,533
<OTHER-INCOME-NET> (2,880)<F2>
<INCOME-BEFORE-INTEREST-EXPEN> 44,653
<TOTAL-INTEREST-EXPENSE> 30,247
<NET-INCOME> 8,820
0
<EARNINGS-AVAILABLE-FOR-COMM> 8,820
<COMMON-STOCK-DIVIDENDS> 11,020
<TOTAL-INTEREST-ON-BONDS> 0
<CASH-FLOW-OPERATIONS> 30,651
<EPS-PRIMARY> 0.33
<EPS-DILUTED> 0.33
<FN>
<F1>Includes: trust originated preferred securities of $60,000, current liabilities,
net of current long-term debt maturities and short-term debt, of $132,976 and
deferred income taxes and other credits of $199,268.
<F2>Includes distributions related to trust originated preferred securities $2,738.
</FN>
</TABLE>
<PAGE>
<TABLE>
SOUTHWEST GAS CORPORATION EXHIBIT 99
SUMMARY STATEMENTS OF INCOME
(In thousands, except per share amounts)
(Unaudited)
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED TWELVE MONTHS ENDED
JUNE 30, JUNE 30, JUNE 30,
--------------------- --------------------- ---------------------
1997 1996 1997 1996 1997 1996
--------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Gas operating revenues $ 107,740 $ 102,713 $ 319,304 $ 291,065 $ 574,600 $ 528,857
Net cost of gas sold 36,723 36,688 121,322 115,157 193,745 188,947
--------- --------- --------- --------- --------- ---------
Operating margin 71,017 66,025 197,982 175,908 380,855 339,910
Operations and maintenance expenses 49,407 48,260 97,855 95,471 200,748 189,718
Depreciation, amortization, and general taxes 25,814 23,721 51,426 47,854 99,171 93,153
--------- --------- --------- --------- --------- ---------
Operating income (loss) (4,204) (5,956) 48,701 32,583 80,936 57,039
Net interest deductions 15,195 13,055 29,456 26,008 56,451 53,002
Preferred securities distribution 1,369 1,369 2,738 2,738 5,475 3,651
--------- --------- --------- --------- --------- ---------
Pretax utility income (loss) (20,768) (20,380) 16,507 3,837 19,010 386
Utility income tax expense (benefit) (8,112) (8,285) 6,328 1,124 7,201 (923)
--------- --------- --------- --------- --------- ---------
Net utility income (loss) (12,656) (12,095) 10,179 2,713 11,809 1,309
Other income (expense), net (91) (294) (390) (243) (571) (683)
--------- --------- --------- --------- --------- ---------
Contribution to net income (loss) - gas operations (12,747) (12,389) 9,789 2,470 11,238 626
Contribution to net income (loss) - construction services (1) 446 (969) 446 1,240 446
Discontinued operations - PriMerit Bank -- -- -- -- -- (18,342)
--------- --------- --------- --------- --------- ---------
Net income (loss) (12,748) (11,943) 8,820 2,916 12,478 (17,270)
Preferred dividends -- -- -- -- -- 117
--------- --------- --------- --------- --------- ---------
Net income (loss) applicable to common stock $ (12,748) $ (11,943) $ 8,820 $ 2,916 $ 12,478 $ (17,387)
========= ========= ========= ========= ========= =========
Earnings (loss) per share - gas operations $ (0.47) $ (0.48) $ 0.36 $ 0.10 $ 0.42 $ 0.02
Earnings (loss) per share - construction services -- 0.02 (0.03) 0.02 0.05 0.02
Earnings (loss) per share - discontinued operations -- -- -- -- -- (0.74)
--------- --------- --------- --------- --------- ---------
Earnings (loss) per share of common stock $ (0.47) $ (0.46) $ 0.33 $ 0.12 $ 0.47 $ (0.70)
========= ========= ========= ========= ========= =========
Average outstanding common shares 27,002 25,817 26,910 25,211 26,733 24,773
========= ========= ========= ========= ========= =========
The summary statements of income have been prepared by Southwest Gas Corporation (the Company) using the equity method of
accounting for its construction services subsidiary. This presentation is not in accordance with generally accepted accounting
principles (GAAP). However, it produces the same net income as the consolidated financial statements and, in management's opinion,
is a fair representation of the operations and contributions to net income of the Company's operating segments.
/TABLE
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
SOUTHWEST GAS CORPORATION
SUMMARY BALANCE SHEET
AT JUNE 30, 1997
(In thousands)
(Unaudited)
<S> <C> <C>
ASSETS
UTILITY PLANT
Gas plant, net of accumulated depreciation $ 1,286,792
Construction work in progress 32,985
------------
Net utility plant 1,319,777
------------
OTHER PROPERTY AND INVESTMENTS
Investment in construction services subsidiary 26,426
Other 43,002
------------
Total other property and investments 69,428
------------
CURRENT AND ACCRUED ASSETS
Cash, working funds and temporary cash investments 5,352
Receivables - less reserve of $1,548 for uncollectibles 25,077
Accrued utility revenue 20,541
Deferred purchased gas costs 57,476
Other 27,315
------------
Total current and accrued assets 135,761
------------
DEFERRED DEBITS
Unamortized debt expense 19,207
Other deferred debits 26,233
------------
Total deferred debits 45,440
------------
TOTAL ASSETS $ 1,570,406
============
CAPITALIZATION, LIABILITIES AND DEFERRED CREDITS
CAPITALIZATION
Common stockholders' equity
Common stock equity, $1 par, 27,089 shares outstanding $ 383,661
Retained earnings (accumulated deficit) (152)
------------
Total common stockholders' equity 383,509 32.3%
Preferred securities of Southwest Gas Capital I, 9.125% 60,000 5.1
Long-term debt - NOTE 3 744,531 62.6
------------ --------
Total capitalization 1,188,040 100.0%
------------ ========
CURRENT AND ACCRUED LIABILITIES
Notes payable 86,000
Accounts payable 26,379
Customer deposits 21,693
Other 53,983
------------
Total current and accrued liabilities 188,055
------------
DEFERRED CREDITS
Deferred investment tax credits 18,572
Deferred income taxes 133,745
Other 41,994
------------
Total deferred credits 194,311
------------
TOTAL CAPITALIZATION, LIABILITIES AND DEFERRED CREDITS $ 1,570,406
============
See Notes to Summary Financial Statements.
/TABLE
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
SOUTHWEST GAS CORPORATION
SUMMARY STATEMENT OF CASH FLOWS
SIX MONTHS ENDED JUNE 30, 1997
(In thousands)
(Unaudited)
<S> <C>
CASH FLOWS FROM OPERATIONS:
Net income $ 8,820
Adjustments to reconcile net income to net
cash provided from operating activities:
Depreciation and amortization 36,315
Change in receivables and payables 29,982
Change in gas cost related balancing items (68,935)
Change in accrued taxes (13,739)
Change in deferred taxes 26,331
Allowance for funds used during construction (911)
Other 11,039
---------
Net cash provided by operating activities 28,902
---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Construction expenditures (76,712)
Other (5,296)
---------
Net cash used in investing activities (82,008)
---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net proceeds from stock issuances 6,166
Dividends paid (11,020)
Change in notes payable (35,000)
Long-term debt issuances, net 92,871
---------
Net cash provided by financing activities 53,017
---------
Change in cash and temporary cash investments (89)
Cash at beginning of period 5,441
---------
Cash at end of period $ 5,352
=========
SUPPLEMENTAL INFORMATION:
Interest paid, net of amounts capitalized $ 28,359
Income taxes, net of refunds $ (2,762)
See Notes to Summary Financial Statements.
</TABLE>
<PAGE>
<PAGE>
SOUTHWEST GAS CORPORATION
NOTES TO SUMMARY FINANCIAL STATEMENTS
(In thousands)
(Unaudited)
NOTE 1 - BASIS OF PRESENTATION:
The summary financial statements have been prepared by Southwest Gas
Corporation (the Company) using the equity method of accounting for its
construction services subsidiary. This presentation is not in accordance
with generally accepted accounting principles (GAAP), and certain information
and footnote disclosures normally included in financial statements prepared in
accordance with GAAP have been omitted. The summary financial statement
presentation in this report produces the same net income as the consolidated
financial statements and, in management's opinion, is a fair representation
of the operations and contributions to net income of the Company's operating
segments.
NOTE 2 - DISCONTINUED OPERATIONS:
In January 1996, the Company reached an agreement to sell PriMerit Bank
(PriMerit) to Norwest Corporation. Discontinued operations includes the
net income of PriMerit and its subsidiaries on a stand-alone basis as
adjusted, reduced by allocated carrying costs associated with the Company's
investment in PriMerit (principally interest) net of taxes. Discontinued
operations also includes the loss on the disposition. The sale of PriMerit
to Norwest was completed in July 1996.
NOTE 3 - LONG-TERM DEBT:
Term loan facility $ 200,000
Debentures:
Debentures, 9.75% series F, due 2002 100,000
Debentures, 7 1/2% series, due 2006 75,000
Debentures, 8% series, due 2026 75,000
Medium-term notes:
Medium-term notes, 7.59% series, due 2017 25,000
Medium-term notes, 7.78% series, due 2022 25,000
Medium-term notes, 7.92% series, due 2027 25,000
Industrial development revenue bonds - net of funds held in trust 226,710
Unamortized discount on long-term debt (7,179)
----------
TOTAL LONG-TERM DEBT $ 744,531
==========
ESTIMATED CURRENT MATURITIES
$ --
==========
<PAGE>
<PAGE>
<TABLE>
SOUTHWEST GAS CORPORATION
SUMMARY STATEMENTS OF INCOME
(In thousands, except per share amounts)
(Unaudited)
<CAPTION>
SIX MONTHS ENDED TWELVE MONTHS ENDED
JUNE 30, JUNE 30,
-------------------------- -------------------------
1997 1996 1997 1996
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Gas operating revenues $ 319,304 $ 291,065 $ 574,600 $ 528,857
Net cost of gas sold 121,322 115,157 193,745 188,947
- -------------------------------------------------------------------------------------------------------------------------
Operating margin 197,982 175,908 380,855 339,910
Operations and maintenance expenses 97,855 95,471 200,748 189,718
Depreciation, amortization, and general taxes 51,426 47,854 99,171 93,153
- -------------------------------------------------------------------------------------------------------------------------
Operating income 48,701 32,583 80,936 57,039
Net interest deductions 29,456 26,008 56,451 53,002
Preferred securities distribution 2,738 2,738 5,475 3,651
- -------------------------------------------------------------------------------------------------------------------------
Pretax utility income 16,507 3,837 19,010 386
Utility income tax expense 6,328 1,124 7,201 (923)
- -------------------------------------------------------------------------------------------------------------------------
Net utility income 10,179 2,713 11,809 1,309
Other income (expense), net (390) (243) (571) (683)
- -------------------------------------------------------------------------------------------------------------------------
Contribution to net income (loss) - gas operations 9,789 2,470 11,238 626
Contribution to net income (loss) - construction services (969) 446 1,240 446
Discontinued operations - PriMerit Bank - NOTE 2 -- -- -- (18,342)
- -------------------------------------------------------------------------------------------------------------------------
Net income (loss) 8,820 2,916 12,478 (17,270)
Preferred dividends -- -- -- 117
- -------------------------------------------------------------------------------------------------------------------------
Net income (loss) applicable to common stock $ 8,820 $ 2,916 $ 12,478 $ (17,387)
=========================================================================================================================
Earnings per share - gas operations $ 0.36 $ 0.10 $ 0.42 $ 0.02
Earnings (loss) per share - construction services (0.03) 0.02 0.05 0.02
Earnings (loss) per share - discontinued operations -- -- -- (0.74)
- -------------------------------------------------------------------------------------------------------------------------
Earnings (loss) per share of common stock $ 0.33 $ 0.12 $ 0.47 $ (0.70)
=========================================================================================================================
Average outstanding common shares 26,910 25,211 26,733 24,773
=========================================================================================================================
See Notes to Summary Financial Statements.
/TABLE
<PAGE>
<PAGE>
<TABLE>
<CSPTION>
SOUTHWEST GAS CORPORATION
SELECTED STATISTICAL DATA
JUNE 30, 1997
FINANCIAL STATISTICS
Market value to book value per share at quarter end 140%
Twelve months to date return on equity -- total company 3.3%
-- gas segment 3.2%
Common stock dividend yield at quarter end 4.1%
GAS OPERATIONS SEGMENT
<CAPTION>
Authorized
Authorized Authorized Return on
Rate Base Rate of Common
Rate Jurisdiction (In thousands) Return Equity
- ------------------------ ------------- --------- ---------
<S> <C> <C> <C>
Central Arizona $ 267,348 9.13% 10.75%
Southern Arizona 157,620 9.12 11.00
Southern Nevada 237,165 9.50 11.55
Northern Nevada 63,986 9.67 11.55
Southern California 69,486 9.94 11.35
Northern California 9,521 10.02 11.35
Paiute Pipeline Company 61,057 10.09 12.50
</TABLE>
<TABLE>
<CAPTION>
SYSTEM THROUGHPUT BY CUSTOMER CLASS SIX MONTHS ENDED TWELVE MONTHS ENDED
JUNE 30, JUNE 30,
------------------------- --------------------------
(In dekatherms) 1997 1996 1997 1996
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Residential 32,420,431 28,320,580 49,373,150 41,704,732
Small commercial 14,490,813 13,845,218 24,257,249 22,874,442
Large commercial 4,044,736 4,084,374 7,610,136 7,858,394
Industrial / Other 3,659,318 2,900,420 6,057,093 5,829,712
Transportation 45,544,144 42,930,403 99,434,472 97,566,915
- --------------------------------------------------------------------------------------------------------------------------
Total system throughput 100,159,442 92,080,995 186,732,100 175,834,195
==========================================================================================================================
HEATING DEGREE DAY COMPARISON
- --------------------------------------------------------------------------------------------------------------------------
Actual 1,407 1,250 2,053 1,682
Ten-year average 1,400 1,419 2,019 2,038
==========================================================================================================================
/TABLE
<PAGE>
