Exhibit 10.3.a.
CREDIT AGREEMENT
Dated as of March 13, 2002
among
GREAT PLAINS ENERGY INCORPORATED,
CERTAIN LENDERS,
BNP PARIBAS,
as Syndication Agent,
BANK OF AMERICA, N.A.,
as Co-Documentation Agent,
THE BANK OF NEW YORK,
as Co-Documentation Agent,
and
BANK ONE, NA,
as Administrative Agent
BANC ONE CAPITAL MARKETS,
INC.
Lead Arranger and Sole Book
Manager
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS 1
1.1. Definitions 1
1.2. Accounting Principles 11
ARTICLE II THE CREDITS 12
2.1. Commitment 12
2.2. Required Payments; Termination. 12
2.3. Ratable Loans 12
2.4. Types of Advances; Minimum Amount 12
2.5. Facility Fee; Utilization Fee 12
2.6. Changes in Aggregate Commitment 12
2.7. Optional Principal Payments 13
2.8. Method of Selecting Types and Interest
Periods for New Advances 13
2.9. Conversion and Continuation of Outstanding
Advances 14
2.10. Changes in Interest Rate, etc. 14
2.11. Rates Applicable After Default 15
2.12. Method of Payment 15
2.13. Noteless Agreement; Evidence of Indebtedness 15
2.14. Telephonic Notices 16
2.15. Interest Payment Dates; Interest and Fee
Basis 16
2.16. Notification of Advances, Interest Rates,
Prepayments and Commitment Reductions 16
2.17. Lending Installations 17
2.18. Non-Receipt of Funds by the Administrative
Agent 17
ARTICLE III YIELD PROTECTION; TAXES 17
3.1. Yield Protection 17
3.2. Changes in Capital Adequacy Regulations 18
3.3. Availability of Types of Advances 18
3.4. Funding Indemnification 19
3.5. Taxes 19
3.6. Lender Statements; Survival of Indemnity 21
ARTICLE IV CONDITIONS PRECEDENT 21
4.1. Initial Advance 21
4.2. Each Advance 22
ARTICLE V REPRESENTATIONS AND WARRANTIES 23
5.1. Existence and Standing 23
5.2. Authorization and Validity 23
5.3. No Conflict; Government Consent 23
5.4. Financial Statements 23
5.5. Material Adverse Change 24
5.6. Taxes 24
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TABLE OF CONTENTS
(continued)
Page
5.7. Litigation; etc 24
5.8. ERISA 24
5.9. Accuracy of Information 24
5.10. Regulation U 25
5.11. Material Agreements 25
5.12. Compliance With Laws 25
5.13. Ownership of Properties 25
5.14. Plan Assets; Prohibited Transactions 25
5.15. Environmental Matters 25
5.16. Investment Company Act 25
5.17. Public Utility Holding Company Act 25
5.18. Pari Passu Indebtedness 25
5.19. Solvency 26
ARTICLE VI COVENANTS 26
6.1. Financial Reporting 26
6.2. Permits, Etc. 27
6.3. Use of Proceeds 27
6.4. Notice of Default 28
6.5. Conduct of Business 28
6.6. Taxes 28
6.7. Insurance 28
6.8. Compliance with Laws 28
6.9. Maintenance of Properties; Books of Record 28
6.10. Inspection 29
6.11. Consolidations, Mergers and Sale of Assets 29
6.12. Liens 30
6.13. Affiliates 32
6.14. ERISA 32
6.15. Total Indebtedness to Total Capitalization 32
6.16. Interest Coverage Ratio 33
6.17. Restrictions on Subsidiary Dividends 33
ARTICLE VII DEFAULTS 33
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND 35
REMEDIES
8.1. Acceleration 35
8.2. Amendments 35
8.3. Preservation of Rights 36
ARTICLE IX GENERAL PROVISIONS 36
9.1. Survival of Representations 36
9.2. Governmental Regulation 36
9.3. Headings 36
9.4. Entire Agreement 36
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TABLE OF CONTENTS
(continued)
Page
9.5. Several Obligations; Benefits of this
Agreement 36
9.6. Expenses; Indemnification 37
9.7. Numbers of Documents 37
9.8. Accounting 38
9.9. Severability of Provisions 38
9.10. Nonliability of Lenders 38
9.11. Confidentiality 38
9.12. Nonreliance 38
ARTICLE X THE ADMINISTRATIVE AGENT 39
10.1. Appointment; Nature of Relationship 39
10.2. Powers 39
10.3. General Immunity 39
10.4. No Responsibility for Loans, Recitals, etc. 39
10.5. Action on Instructions of Lenders 40
10.6. Employment of Agents and Counsel 40
10.7. Reliance on Documents; Counsel 40
10.8. Administrative Agent's Reimbursement and 40
10.9. Notice of Default 41
10.10. Rights as a Lender 41
10.11. Lender Credit Decision 41
10.12. Successor Administrative Agent 41
10.13. Administrative Agent's Fee 42
10.14. Delegation to Affiliates 42
ARTICLE XI SETOFF; RATABLE PAYMENTS 43
11.1. Setoff 43
11.2. Ratable Payments 43
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; 43
PARTICIPATIONS
12.1. Successors and Assigns 43
12.2. Participations 44
12.3. Assignments 44
12.4. Dissemination of Information 45
12.5. Tax Treatment 46
ARTICLE XIII NOTICES 46
13.1. Notices 46
13.2. Change of Address 46
ARTICLE XIV COUNTERPARTS 46
ARTICLE XV OTHER AGENTS 47
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TABLE OF CONTENTS
(continued)
Page
ARTICLE XVI CHOICE OF LAW; CONSENT TO JURISDICTION; 48
WAIVER OF JURY TRIAL
16.1 Choice of Law 48
16.2 Consent to Jurisdiction 48
16.3 Waiver of Jury Trial 48
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TABLE OF CONTENTS
Page
PRICING SCHEDULE
SCHEDULE I (COMMITMENTS)
SCHEDULE 6.12 (LIENS)
SCHEDULE 6.17 (AGREEMENTS RESTRICTING SUBSIDIARY DIVIDENDS)
EXHIBIT A (FORM OF OPINION)
EXHIBIT B (FORM OF COMPLIANCE CERTIFICATE)
EXHIBIT C (FORM OF ASSIGNMENT AGREEMENT)
EXHIBIT D (FORM OF LOAN/CREDIT RELATED MONEY TRANSFER
INSTRUCTION)
EXHIBIT E (FORM OF NOTE)
EXHIBIT F (FORM OF INCREASE REQUEST)
v
CREDIT AGREEMENT
This Agreement dated as of March 13, 2002 is among Great
Plains Energy Incorporated, a Missouri corporation, the Lenders
and Bank One, NA, as Administrative Agent. The parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
1.1. DEFINITIONS. As used in this Agreement, the following
terms have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of such terms):
"Administrative Agent" means Bank One, NA in its capacity
as contractual representative of the Lenders pursuant to ARTICLE
X, and not in its individual capacity as a Lender, and any
successor Administrative Agent appointed pursuant to ARTICLE X.
"Advance" means a borrowing hereunder (or conversion or
continuation thereof) consisting of the aggregate amount of the
several Loans made on the same Borrowing Date (or date of
conversion or continuation) by the Lenders to the Borrower of the
same Type and, in the case of Eurodollar Advances, for the same
Interest Period.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control
with such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by"
and "under common control with") shall mean the possession,
directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether
through the ownership of voting securities or by contract or
otherwise.
"Aggregate Commitment" means the aggregate of the
Commitments of all Lenders, as changed from time to time pursuant
to the terms hereof.
"Agreement" means this credit agreement, as it may be
amended or modified and in effect from time to time.
"Alternate Base Rate" means, for any day, a rate of interest
per annum equal to the higher of (i) the Prime Rate for such day
and (ii) the sum of the Federal Funds Effective Rate for such day
plus 1/2% per annum.
"Applicable Margin" means, with respect to Advances of any
Type at any time, the percentage rate per annum which is
applicable at such time with respect to Advances of such Type as
set forth in the Pricing Schedule.
"Arranger" means Banc One Capital Markets, Inc., a Delaware
corporation, and its successors.
"Article" means an article of this Agreement unless another
document is specifically referenced.
"Attributable Indebtedness" means, on any date, (a) in
respect of any Capitalized Lease Obligation of any Person, the
capitalized amount thereof that would appear on a balance sheet
of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the
capitalized amount of the remaining lease payments under the
relevant lease that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP if such
lease were accounted for as a Capitalized Lease.
"Authorized Officer" means any of the President, any Vice
President, the chief financial officer or the Treasurer of the
Borrower, in each case acting singly.
"Bank One" means Bank One, NA in its individual capacity,
and its successors.
"Borrower" means Great Plains Energy Incorporated, a
Missouri corporation, and its permitted successors and assigns.
"Borrowing Date" means a date on which an Advance is made
hereunder.
"Borrowing Notice" is defined in SECTION 2.8.
"Business Day" means (i) with respect to any borrowing,
payment or rate selection of Eurodollar Advances, a day (other
than a Saturday or Sunday) on which banks generally are open in
Chicago and New York for the conduct of substantially all of
their commercial lending activities and on which dealings in
United States dollars are carried on in the London interbank
market and (ii) for all other purposes, a day (other than a
Saturday or Sunday) on which banks generally are open in Chicago
for the conduct of substantially all of their commercial lending
activities.
"Capitalized Lease" of a Person means any lease of Property
by such Person as lessee which would be capitalized on a balance
sheet of such Person prepared in accordance with GAAP.
"Capitalized Lease Obligations" of a Person means the amount
of the obligations of such Person under Capitalized Leases which
would be shown as a liability on a balance sheet of such Person
prepared in accordance with GAAP.
"Change of Control" means an event or series of events by
which:
(i) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but
excluding any employee benefit plan of the Borrower or its
Subsidiaries, or any Person acting in its capacity as trustee,
agent or other fiduciary or administrator of any such plan)
becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-
5 under the Securities Exchange Act of 1934, directly or
indirectly, of 33 1/3% or more of the equity interests of the
Borrower; or
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(ii) during any period of 12 consecutive months (or such lesser
period of time as shall have elapsed since the formation of the
Borrower), a majority of the members of the board of directors or
other equivalent governing body of the Borrower ceases to be
composed of individuals (x) who were members of that board or
equivalent governing body on the first day of such period, (y)
whose election or nomination to that board or equivalent
governing body was approved by individuals referred to in clause
(x) above constituting at the time of such election or nomination
at least a majority of that board or equivalent governing body or
(z) whose election or nomination to that board or other
equivalent governing body was approved by individuals referred to
in clauses (x) and (y) above constituting at the time of such
election or nomination at least a majority of that board or
equivalent governing body.
"Code" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of such
Lender to make Loans in an aggregate amount not exceeding the
amount set forth on SCHEDULE I hereto or as set forth in any
Notice of Assignment relating to any assignment that has become
effective pursuant to SECTION 12.3.2, as such amount may be
modified from time to time pursuant to the terms hereof.
"Consolidated EBITDA" means, for any period, for the
Borrower and its Consolidated Subsidiaries, an amount equal to
the result of (i) Consolidated Net Income PLUS (ii) Consolidated
Interest Charges PLUS (iii) the amount of taxes, based on or
measured by income, used or included in the determination of such
Consolidated Net Income PLUS (iv) the amount of depreciation and
amortization expense deducted in determining such Consolidated
Net Income PLUS (v) all other non-cash items that reduce
Consolidated Net Income for such period MINUS (vi) all non-cash
items that increase Consolidated Net Income for such period.
"Consolidated Interest Charges" means, for the Borrower and
its Consolidated Subsidiaries for any period, the sum of (i) all
interest, premium payments, fees, charges and related expenses of
the Borrower and its Consolidated Subsidiaries in connection with
borrowed money (including capitalized interest) or in connection
with the deferred purchase price of assets, in each case to the
extent treated as interest in accordance with GAAP, and (ii) the
portion of rent expense of the Borrower and its Consolidated
Subsidiaries with respect to such period under capital leases
that is treated as interest in accordance with GAAP. It is
understood and agreed that Consolidated Interest Charges shall
not include any obligations of the Borrower or any Consolidated
Subsidiary with respect to subordinated, deferrable interest debt
securities, and any related securities issued by a trust or other
special purpose entity in connection therewith, as long as the
maturity date of such debt securities is subsequent to the
scheduled Facility Termination Date.
"Consolidated Net Income" means, for any period, for the
Borrower and its Consolidated Subsidiaries, the net income of the
Borrower and its Consolidated Subsidiaries from continuing
operations, excluding extraordinary items for that period.
"Consolidated Subsidiaries" means, as to any Person, each
Subsidiary of such Person (whether now existing or hereafter
created or acquired) the financial statements of which shall be
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(or should have been) consolidated with the financial statements
of such Person in accordance with GAAP.
"Consolidated Tangible Net Worth" means, as of any date of
determination, for the Borrower and its Consolidated
Subsidiaries, Shareholders' Equity of the Borrower and its
Consolidated Subsidiaries on that date MINUS the Intangible
Assets of the Borrower and its Consolidated Subsidiaries on that
date.
"Contingent Obligation" of a Person means any agreement,
undertaking or arrangement by which such Person assumes,
guarantees, endorses, contingently agrees to purchase or provide
funds for the payment of, or otherwise becomes or is contingently
liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other
financial condition of any other Person, or otherwise assures any
creditor of such other Person against loss.
"Controlled Group" means all members of a controlled group
of corporations or other business entities and all trades or
businesses (whether or not incorporated) under common control
which, together with the Borrower or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Conversion/Continuation Notice" is defined in SECTION 2.9.
"Default" means an event described in ARTICLE VII.
"DTI" means DTI Holdings, Inc.
"DTI Company" means any of DTI and any of its Subsidiaries.
"Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, judicial decisions, regulations,
ordinances, rules, judgments, orders, decrees, plans,
injunctions, permits, concessions, grants, franchises, licenses,
agreements and other governmental restrictions relating to (i)
the protection of the environment, (ii) the effect of the
environment on human health, (iii) emissions, discharges or
releases of pollutants, contaminants, hazardous substances or
wastes into surface water, ground water or land, or (iv) the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants,
hazardous substances or wastes or the clean-up or other
remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any rule or regulation
issued thereunder.
"Eurodollar Advance" means an Advance which bears interest
at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar
Advance for the relevant Interest Period, the applicable British
Bankers' Association Interest Settlement Rate for deposits in
U.S. dollars appearing on Reuters Screen FRBD as of 11:00 a.m.
(London time) two Business Days prior to the first day of such
Interest Period, and having a maturity equal to such Interest
Period; PROVIDED that, (i) if Reuters Screen FRBD is not
available to the Administrative Agent
Page 4
for any reason, the applicable Eurodollar Base Rate for the
relevant Interest Period shall instead be the applicable British
Bankers' Association Interest Settlement Rate for deposits in
U.S. dollars as reported by any other generally recognized
financial information service as of 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period, and
having a maturity equal to such Interest Period, and (ii) if no
such British Bankers' Association Interest Settlement Rate is
available to the Administrative Agent, the applicable Eurodollar
Base Rate for the relevant Interest Period shall instead be the
rate determined by the Administrative Agent to be the rate at
which Bank One or one of its Affiliate banks offers to place
deposits in U.S. dollars with first-class banks in the London
interbank market at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period, in
the approximate amount of Bank One's relevant Eurodollar Loan and
having a maturity equal to such Interest Period.
"Eurodollar Loan" means a Loan which bears interest at the
applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar
Advance or Eurodollar Loan for the relevant Interest Period, the
sum of (i) the quotient of (a) the Eurodollar Base Rate
applicable to such Interest Period, divided by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to such
Interest Period, plus (ii) the Applicable Margin. The Eurodollar
Rate shall be rounded to the next higher multiple of 1/16 of 1%
if the rate is not such a multiple.
"Excluded Taxes" means, in the case of each Lender or
applicable Lending Installation and the Administrative Agent,
taxes imposed on its overall net income, and franchise taxes
imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Administrative Agent is incorporated or
organized or (ii) the jurisdiction in which the Administrative
Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless
another document is specifically referenced.
"Facility Fee Rate" means, at any time, the percentage rate
per annum at which facility fees are accruing at such time as set
forth in the Pricing Schedule.
"Facility Termination Date" means March 12, 2003 or any
earlier date on which the Aggregate Commitment is reduced to zero
or otherwise terminated pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an
interest rate per annum 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 for such day (or, if such day is not a Business
Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the
quotations at approximately 10:00 a.m. (Chicago time) on such day
on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by
the Administrative Agent in its sole discretion.
"Floating Rate" means, for any day, a rate per annum equal to the
sum of (i) the Alternate Base Rate for such day plus (ii) the
Applicable Margin, in each case changing when and as the
Alternate Base Rate changes.
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"Floating Rate Advance" means an Advance which bears
interest at the Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at
the Floating Rate.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of
Certified Public Accountants and statements of the Financial
Accounting Standards Board.
"Indebtedness" means, as to any Person at a particular time,
all of the following, without duplication, to the extent recourse
may be had to the assets or properties of such Person in respect
thereof: (i) all obligations of such Person for borrowed money
and all obligations of such Person evidenced by bonds,
debentures, notes, loan agreements or other similar instruments;
(ii) any direct or contingent obligations of such Person in the
aggregate in excess of $2,000,000 arising under letters of credit
(including standby and commercial), banker's acceptances, bank
guaranties, surety bonds and similar instruments; (iii) net
obligations of such Person under Swap Contracts; (iv) all
obligations of such Person to pay the deferred purchase price of
property or services (except trade accounts payable arising, and
accrued expenses incurred, in the ordinary course of business),
and indebtedness (excluding prepaid interest thereon) secured by
a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness
shall have been assumed by such Person or is limited in recourse;
(v) Capitalized Lease Obligations and Synthetic Lease Obligations
of such Person; and (vi) all Contingent Obligations of such
Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person
shall include the Indebtedness of any partnership or joint
venture in which such Person is a general partner or a joint
venturer, unless such Indebtedness is non-recourse to such
Person. It is understood and agreed that Indebtedness (including
Contingent Obligations) shall not include any obligations of the
Borrower with respect to subordinated, deferrable interest debt
securities, and any related securities issued by a trust or other
special purpose entity in connection therewith, as long as the
maturity date of such debt is subsequent to the scheduled
Facility Termination Date; PROVIDED that the amount of mandatory
principal amortization or defeasance of such debt prior to the
scheduled Facility Termination Date shall be included in this
definition of Indebtedness. The amount of any Capitalized Lease
Obligation or Synthetic Lease Obligation as of any date shall be
deemed to be the amount of Attributable Indebtedness in respect
thereof as of such date.
"Interest Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated EBITDA for the
period of the four prior fiscal quarters ending on such date to
(b) Consolidated Interest Charges during such period.
"Interest Period" means, with respect to a Eurodollar
Advance, a period of one, two, three or six months commencing on
a Business Day selected by the Borrower pursuant to this
Agreement. Such Interest Period shall end on the day which
corresponds numerically to such date one, two, three or six
months thereafter; PROVIDED, HOWEVER, that if there is no such
numerically corresponding day in such next, second, third or
sixth succeeding month, such Interest Period shall end on the
last Business Day of such next, second, third or sixth succeeding
month. If an Interest Period would otherwise end on a day which
is not a Business Day, such
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Interest Period shall end on the next succeeding Business Day;
PROVIDED, HOWEVER, that if said next succeeding Business Day
falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"KCPL" means Kansas City Power & Light Company, a Missouri
corporation.
"Lenders" means the lending institutions listed on the
signature pages of this Agreement and their respective successors
and assigns.
"Lending Installation" means, with respect to a Lender or
the Administrative Agent, the office, branch, subsidiary or
affiliate of such Lender or the Administrative Agent listed on
the signature pages hereof or on a Schedule or otherwise selected
by such Lender or the Administrative Agent pursuant to SECTION
2.17.
"Lien" means any lien (statutory or other), mortgage,
pledge, hypothecation, assignment, deposit arrangement,
encumbrance or preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever
(including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other
title retention agreement).
"Loan" means, with respect to a Lender, such Lender's loan
made pursuant to ARTICLE II (or any conversion or continuation
thereof).
"Loan Documents" means this Agreement and each Note issued
pursuant to SECTION 2.13.
"Material Adverse Effect" means a material adverse effect on
(i) the business, Property, condition (financial or otherwise),
results of operations, or prospects of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the Borrower
to perform its obligations under the Loan Documents or (iii) the
validity or enforceability of any of the Loan Documents or the
rights or remedies of the Administrative Agent or the Lenders
thereunder.
"Material Indebtedness" is defined in SECTION 7.5.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a Plan maintained pursuant to a
collective bargaining agreement or any other arrangement to which
the Borrower or any member of the Controlled Group is a party to
which more than one employer is obligated to make contributions.
"Non-U.S. Lender" is defined in SECTION 3.5(IV).
"Note" is defined in SECTION 2.13.
"Notice of Assignment" is defined in SECTION 12.3.2.
"Obligations" means all unpaid principal of and accrued and
unpaid interest on the Loans, all accrued and unpaid fees and all
expenses, reimbursements, indemnities and other
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obligations of the Borrower to the Lenders or to any Lender, the
Administrative Agent or any indemnified party arising under the
Loan Documents.
"Other Taxes" is defined in SECTION 3.5(II).
"Participants" is defined in SECTION 12.2.1.
"Payment Date" means the last Business Day of each March,
June, September and December.
"PBGC" means the Pension Benefit Guaranty Corporation, or
any successor thereto.
"Person" means any natural person, corporation, firm, joint
venture, partnership, limited liability company, association,
enterprise, trust or other entity or organization, or any
government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" means an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code as to which the Borrower
or any member of the Controlled Group may have any liability.
"Pricing Schedule" means the Schedule attached hereto
identified as such.
"Prime Rate" means a rate per annum equal to the prime rate
of interest announced by Bank One or its parent from time to time
(which is not necessarily the lowest rate charged to any
customer), changing when and as said prime rate changes.
"Project Finance Subsidiary" means any Subsidiary that meets
the following requirements: (i) it is primarily engaged, directly
or indirectly, in the ownership, operation and/or financing of
independent power production and related facilities and assets;
and (ii) neither the Borrower nor any other Subsidiary (other
than another Project Finance Subsidiary) has any liability,
contingent or otherwise, for the Indebtedness or other
obligations of such Subsidiary (other than non-recourse liability
resulting from the pledge of stock of such Subsidiary).
"Property" of a Person means any and all property, whether
real, personal, tangible, intangible, or mixed, of such Person,
or other assets owned, leased or operated by such Person.
"PUHCA" means the Public Utility Holding Company Act of
1935, as amended.
"Purchasers" is defined in SECTION 12.3.1.
"Regulation D" means Regulation D of the Board of Governors
of the Federal Reserve System as from time to time in effect and
any successor thereto or other regulation or official
interpretation of said Board of Governors relating to reserve
requirements applicable to member banks of the Federal Reserve
System.
"Regulation U" means Regulation U of the Board of Governors
of the Federal Reserve System as from time to time in effect and
any successor or other regulation or official interpretation of
said Board of Governors relating to the extension of credit by
banks for the
Page 8
purpose of purchasing or carrying margin stocks applicable to
member banks of the Federal Reserve System.
"Reportable Event" means a reportable event as defined in
Section 4043 of ERISA and the regulations issued under such
section, with respect to a Plan, excluding, however, such events
as to which the PBGC has by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event; PROVIDED, HOWEVER, that a failure
to meet the minimum funding standard of Section 412 of the Code
and of Section 302 of ERISA shall be a Reportable Event
regardless of the issuance of any such waiver of the notice
requirement in accordance with either Section 4043(a) of ERISA or
Section 412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at
least 51% of the Aggregate Commitment or, if the Aggregate
Commitment has been terminated, Lenders in the aggregate holding
at least 51% of the aggregate unpaid principal amount of the
outstanding Advances.
"Reserve Requirement" means, with respect to an Interest
Period, the maximum aggregate reserve requirement (including all
basic, supplemental, marginal and other reserves) which is
imposed under Regulation D on Eurocurrency liabilities.
"S&P" means Standard and Poor's Ratings Services, a division
of The McGraw Hill Companies, Inc.
"Schedule" refers to a specific schedule to this Agreement,
unless another document is specifically referenced.
"SEC" means the Securities and Exchange Commission.
"SEC Order" means the order issued by the SEC to the
Borrower and various Affiliates dated September 7, 2001 (Release
No. 35-27436; 70-9861), or an extension, renewal or replacement
of such order in form and substance satisfactory to the Lenders.
"Section" means a numbered section of this Agreement, unless
another document is specifically referenced.
"Shareholders' Equity" means, as of any date of
determination for the Borrower and its Consolidated Subsidiaries
on a consolidated basis, shareholders' equity as of that date
determined in accordance with GAAP.
"Significant Subsidiary" means, at any time, KCPL and each other
Subsidiary of the Borrower which (a) as of the date of
determination, owns consolidated assets equal to or greater than
15% of the consolidated assets of the Borrower and its
Subsidiaries or (b) which had consolidated net income from
continuing operations (excluding extraordinary items) during the
four most recently ended fiscal quarters equal to or greater than
15% of the sum of (i) Consolidated Net Income during such period
plus (ii) for any period ending prior to December 31, 2002, the
amount designated as "Net DTI Impairment Charge" in the footnotes
to the Borrower's statement of income delivered to the Agent for
the fiscal year ended December 31, 2001.
Page 9
"Single Employer Plan" means a Plan maintained by the
Borrower or any member of the Controlled Group for employees of
the Borrower or any member of the Controlled Group.
"Subsidiary" of a Person means (i) any corporation more than
50% of the outstanding securities having ordinary voting power of
which shall at the time be owned or controlled, directly or
indirectly, by such Person or by one or more of its Subsidiaries
or by such Person and one or more of its Subsidiaries, or (ii)
any partnership, limited liability company, association, joint
venture or similar business organization more than 50% of the
ownership interests having ordinary voting power of which shall
at the time be so owned or controlled; PROVIDED that no DTI
Company will be considered a Subsidiary of the Borrower for
purposes of this Agreement. Unless otherwise expressly provided,
all references herein to a "Subsidiary" shall mean a Subsidiary
of the Borrower.
"Substantial Portion" means, with respect to the Property of
the Borrower and its Subsidiaries, Property which (i) represents
more than 10% of the consolidated assets of the Borrower and its
Consolidated Subsidiaries as would be shown in the consolidated
financial statements of the Borrower and its Consolidated
Subsidiaries as at the beginning of the twelve-month period
ending with the month in which such determination is made, or
(ii) is responsible for more than 10% of the consolidated net
sales or of the Consolidated Net Income of the Borrower and its
Consolidated Subsidiaries as reflected in the financial
statements referred to in clause (i) above.
"Swap Contract" means (i) any and all rate swap
transactions, basis swaps, credit derivative transactions,
forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or
forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange
transactions, cap transaction, floor transactions, collar
transactions, currency swap transactions, cross-currency rate
swap transactions, currency options, spot contracts, or any other
similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing),
whether or not any such transaction is governed by or subject to
any master agreement, and (ii) any and all transactions of any
kind, and the related confirmations, which are subject to the
terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives
Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master
Agreement"), including any such obligations or liabilities under
any Master Agreement.
"Synthetic Lease Obligation" means the monetary obligation
of a Person under (a) a so-called synthetic or off-balance sheet
or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on
the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting
treatment).
"Taxes" means any and all present or future taxes, duties,
levies, imposts, deductions, charges or withholdings, and any and
all liabilities with respect to the foregoing, but excluding
Excluded Taxes.
Page 10
"`34 Act Reports" means the periodic reports of the Borrower
filed with the SEC on Forms 10K, 10Q and 8K (or any successor
forms thereto).
"Total Capitalization" means Total Indebtedness of the
Borrower and its Consolidated Subsidiaries plus the sum of (i)
Shareholder's Equity and (ii) to the extent not otherwise
included in Indebtedness or Shareholder's Equity, preferred and
preference stock and securities of the Borrower and its
Subsidiaries included in a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries in accordance with
GAAP.
"Total Indebtedness" means all Indebtedness of the Borrower
and its Consolidated Subsidiaries on a consolidated basis,
excluding (i) Indebtedness arising under Swap Contracts entered
into in the ordinary course of business to hedge bona fide
transactions and business risks and not for speculation, (ii)
Indebtedness of Project Finance Subsidiaries, (iii) Contingent
Obligations incurred after May 15, 1996 with respect to
Indebtedness of Strategic Energy, L.L.C. in an aggregate amount
not exceeding $275,000,000 and (iv) Indebtedness of KLT
Investments Inc. incurred in connection with the acquisition and
maintenance of its interests (whether direct or indirect) in low
income housing projects.
"Transferee" is defined in SECTION 12.4.
"Type" means, with respect to any Advance, its nature as a
Floating Rate Advance or a Eurodollar Advance.
"Unmatured Default" means an event which but for the lapse
of time or the giving of notice, or both, would constitute a
Default.
"Utilization Fee Rate" means, at any time, the percentage
rate per annum at which utilization fees are accruing at such
time as set forth in the Pricing Schedule.
"Wholly-Owned Subsidiary" of a Person means (i) any
Subsidiary all of the outstanding voting securities of which
shall at the time be owned or controlled, directly or indirectly,
by such Person or one or more Wholly-Owned Subsidiaries of such
Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited
liability company, association, joint venture or similar business
organization 100% of the ownership interests having ordinary
voting power of which shall at the time be so owned or
controlled.
1.2. ACCOUNTING PRINCIPLES. Unless the context otherwise clearly
requires, all accounting terms not expressly defined herein shall
be construed, and all financial computations required under this
Agreement shall be made, in accordance with GAAP, consistently
applied; PROVIDED that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any
covenant in SECTION 6 to eliminate the effect of any change in
GAAP on the operation of such covenant (or if the Administrative
Agent notifies the Borrower that the Required Lenders wish to
amend any covenant in SECTION 6 for such purpose), then the
Borrower's compliance with such covenant shall be determined on
the basis of GAAP in effect immediately before the relevant
change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to
the Borrower and the Required Lenders.
Page 11
ARTICLE II
THE CREDITS
2.1. COMMITMENT. From and including the date of this Agreement
and prior to the Facility Termination Date, subject to the terms
and conditions set forth in this Agreement, each Lender severally
agrees to make Loans to the Borrower from time to time in amounts
not to exceed in the aggregate at any one time outstanding the
amount of its Commitment. Subject to the terms of this
Agreement, the Borrower may borrow, repay and reborrow at any
time prior to the Facility Termination Date. The Commitments
shall expire on the Facility Termination Date.
2.2. REQUIRED PAYMENTS; TERMINATION. All outstanding Advances
and all other unpaid Obligations shall be paid in full by the
Borrower on the Facility Termination Date.
2.3. RATABLE LOANS. Each Advance hereunder shall consist of
Loans made from the several Lenders ratably in proportion to the
ratio that their respective Commitments bear to the Aggregate
Commitment.
2.4. TYPES OF ADVANCES; MINIMUM AMOUNT. The Advances may be
Floating Rate Advances or Eurodollar Advances, or a combination
thereof, selected by the Borrower in accordance with SECTIONS 2.8
and 2.9. Each Eurodollar Advance shall be in the minimum amount
of $5,000,000 or a higher integral multiple of $1,000,000, and
each Floating Rate Advance shall be in the minimum amount of
$1,000,000 or an integral multiple thereof.
2.5. FACILITY FEE; UTILIZATION FEE. The Borrower agrees to pay
to the Administrative Agent for the account of each Lender (a) a
facility fee at a per annum rate equal to the Facility Fee Rate
on such Lender's Commitment (regardless of usage) from the date
hereof to and including the Facility Termination Date, payable on
each Payment Date hereafter and on the Facility Termination Date,
and (b) for any date on which the aggregate amount of outstanding
Loans exceeds 33% of the Aggregate Commitment, a utilization fee
at a per annum rate equal to the Utilization Fee Rate on such
Lender's outstanding Loans, payable on each Payment Date
hereafter, on the Facility Termination Date and, if applicable,
thereafter on demand.
2.6. CHANGES IN AGGREGATE COMMITMENT.
(a) The Borrower may permanently reduce the Aggregate Commitment
in whole, or in part ratably among the Lenders in integral
multiples of $5,000,000, upon at least three Business Days' prior
written notice to the Administrative Agent, which notice shall
specify the amount of any such reduction; PROVIDED, HOWEVER, that
the amount of the Aggregate Commitment may not be reduced below
the aggregate principal amount of the outstanding Advances. All
accrued facility fees and utilization fees shall be payable on
the effective date of any termination of the obligations of the
Lenders to make Loans hereunder.
(b) The Borrower may, from time to time, by means of a letter
delivered to the Administrative Agent substantially in the form
of Exhibit F, request that the Aggregate Commitment be increased
to up to $225,000,000 (less the amount of any previous reductions
of
Page 12
the Aggregate Commitment pursuant to clause (a) above) by (a)
increasing the Commitment of one or more Lenders which have
agreed to such increase and/or (b) adding one or more commercial
banks or other Persons as a party hereto (each an "Additional
Lender") with a Commitment in an amount agreed to by any such
Additional Lender; PROVIDED that no Additional Lender shall be
added as a party hereto without the written consent of the
Administrative Agent (which shall not be unreasonably withheld)
or if an Unmatured Default or a Default exists. Any increase in
the Aggregate Commitment pursuant to this clause (b) shall be
effective three Business Days after the date on which the
Administrative Agent has received and accepted the applicable
increase letter in the form of Annex 1 to Exhibit F (in the case
of an increase in the Commitment of an existing Lender) or
assumption letter in the form of Annex 2 to Exhibit F (in the
case of the addition of a commercial bank or other Person as a
new Lender). The Administrative Agent shall promptly notify the
Borrower and the Lenders of any increase in the amount of the
Aggregate Commitment pursuant to this clause (b) and of the
Commitment of each Lender after giving effect thereto. The
Borrower acknowledges that, in order to maintain Advances in
accordance with each Lender's pro-rata share of all outstanding
Advances prior to any increase in the Aggregate Commitment
pursuant to this clause (b), a reallocation of the Commitments as
a result of a non-pro-rata increase in the Aggregate Commitment
may require prepayment of all or portions of certain Advances on
the date of such increase (and any such prepayment shall be
subject to the provisions of SECTION 3.4).
2.7. OPTIONAL PRINCIPAL PAYMENTS.
(a) The Borrower may from time to time prepay Floating Rate
Advances upon one Business Day's prior notice to the
Administrative Agent, without penalty or premium. Each partial
prepayment of Floating Rate Advances shall be in a minimum
aggregate amount of $1,000,000 or an integral multiple thereof.
(b) The Borrower may from time to time prepay Eurodollar
Advances (subject to the payment of any funding indemnification
amounts required by SECTION 3.4) upon three Business Days' prior
notice to the Administrative Agent, without penalty or premium.
Each partial prepayment of Eurodollar Advances shall be in a
minimum aggregate amount of $5,000,000 or a higher integral
multiple of $1,000,000.
2.8. METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR NEW
ADVANCES. The Borrower shall select the Type of Advance and, in
the case of each Eurodollar Advance, the Interest Period
applicable thereto from time to time. The Borrower shall give
the Administrative Agent irrevocable notice (a "Borrowing
Notice") not later than 11:00 a.m. (Chicago time) on the
Borrowing Date of each Floating Rate Advance and not later than
11:00 a.m. (Chicago time) three Business Days before the
Borrowing Date for each Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of
suchAdvance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(vi) in the case of each Eurodollar Advance, the
Interest Period applicable thereto.
Page 13
Not later than noon (Chicago time) on each Borrowing Date, each
Lender shall make available its Loan or Loans in funds
immediately available in Chicago to the Administrative Agent at
its address specified pursuant to ARTICLE XIII. The
Administrative Agent will make the funds so received from the
Lenders available to the Borrower at the Administrative Agent's
aforesaid address.
2.9. CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES.
Floating Rate Advances shall continue as Floating Rate Advances
unless and until such Floating Rate Advances are converted into
Eurodollar Advances pursuant to this SECTION 2.9 or are repaid in
accordance with SECTION 2.7. Each Eurodollar Advance shall
continue as a Eurodollar Advance until the end of the then
applicable Interest Period therefor, at which time such
Eurodollar Advance shall be automatically converted into a
Floating Rate Advance unless (x) such Eurodollar Advance is or
was repaid in accordance with SECTION 2.7 or (y) the Borrower
shall have given the Administrative Agent a
Conversion/Continuation Notice (as defined below) requesting
that, at the end of such Interest Period, such Eurodollar Advance
continue as a Eurodollar Advance for the same or another Interest
Period. Subject to the terms of SECTION 2.4, the Borrower may
elect from time to time to convert all or any part of a Floating
Rate Advance into a Eurodollar Advance. The Borrower shall give
the Administrative Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of a
Floating Rate Advance into a Eurodollar Advance or continuation
of a Eurodollar Advance not later than 10:00 a.m. (Chicago time)
at least three Business Days prior to the date of the requested
conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of
such conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is
to be converted or continued, and
(iii) the amount of such Advance which is to be converted
into or continued as a Eurodollar Advance and the
duration of the Interest Period applicable thereto.
2.10. CHANGES IN INTEREST RATE, ETC Each Floating Rate
Advance shall bear interest on the outstanding principal amount
thereof, for each day from and including the date such Advance is
made or is automatically converted from a Eurodollar Advance into
a Floating Rate Advance pursuant to SECTION 2.9, to but excluding
the date it is paid or is converted into a Eurodollar Advance
pursuant to SECTION 2.9 hereof, at a rate per annum equal to the
Floating Rate for such day. Changes in the rate of interest on
that portion of any Advance maintained as a Floating Rate Advance
will take effect simultaneously with each change in the Alternate
Base Rate. Each Eurodollar Advance shall bear interest on the
outstanding principal amount thereof from and including the first
day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the interest
rate determined by the Administrative Agent as applicable to such
Eurodollar Advance based upon the Borrower's selections under
SECTIONS 2.8 and 2.9 and otherwise in accordance with the terms
hereof. No Interest Period may end after the Facility
Termination Date.
Page 14
2.11. RATES APPLICABLE AFTER DEFAULT. Notwithstanding
anything to the contrary contained in SECTION 2.8 or 2.9, during
the continuance of a Default or Unmatured Default the Required
Lenders may, at their option, by notice to the Borrower (which
notice may be revoked at the option of the Required Lenders
notwithstanding any provision of SECTION 8.2 requiring unanimous
consent of the Lenders to changes in interest rates), declare
that no Advance may be made as, converted into or continued as a
Eurodollar Advance. During the continuance of a Default the
Required Lenders may, at their option, by notice to the Borrower
(which notice may be revoked at the option of the Required
Lenders notwithstanding any provision of SECTION 8.2 requiring
unanimous consent of the Lenders to changes in interest rates),
declare that (i) each Eurodollar Advance shall bear interest for
the remainder of the applicable Interest Period at the rate
otherwise applicable to such Interest Period plus 2% per annum
and (ii) each Floating Rate Advance shall bear interest at a rate
per annum equal to the Floating Rate in effect from time to time
plus 2% per annum; PROVIDED that, during the continuance of a
Default under SECTION 7.6 or 7.7, the interest rates set forth in
clauses (i) and (ii) above shall be applicable to all Advances
without any election or action on the part of the Administrative
Agent or any Lender.
2.12. METHOD OF PAYMENT. All payments of the Obligations
hereunder shall be made, without setoff, deduction, or
counterclaim, in immediately available funds to the
Administrative Agent at the Administrative Agent's address
specified pursuant to ARTICLE XIII, or at any other Lending
Installation of the Administrative Agent specified in writing by
the Administrative Agent to the Borrower, by noon (Chicago time)
on the date when due and shall be applied ratably by the
Administrative Agent among the Lenders. Each payment delivered
to the Administrative Agent for the account of any Lender shall
be delivered promptly by the Administrative Agent to such Lender
in the same type of funds that the Administrative Agent received
at its address specified pursuant to ARTICLE XIII or at any
Lending Installation specified in a notice received by the
Administrative Agent from such Lender.
2.13. NOTELESS AGREEMENT; EVIDENCE OF INDEBTEDNESS. (i)
Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such
Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time
hereunder.
(ii) The Administrative Agent shall also maintain accounts in
which it will record (a) the amount of each Loan made
hereunder, the Type thereof and the Interest Period
with respect thereto, (b) the amount of any principal
or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (c) the
amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender's share
thereof.
(iii) The entries maintained in the accounts maintained
pursuant to paragraphs (i) and (ii) above shall be PRIMA
FACIE evidence of the existence and amounts of the
Obligations therein recorded; PROVIDED, HOWEVER, that the
failure of the Administrative Agent or any Lender to
maintain such accounts or any error therein shall not
in any manner affect the obligation of the Borrower to
repay the Obligations in accordance with their terms.
Page 15
(iv) Any Lender may request that its Loans be evidenced by a
promissory note substantially in the form of Exhibit E (a
"Note"). In such event, the Borrower shall prepare, execute
and deliver to such Lender a Note payable to the order of
such Lender. Thereafter, the Loans evidenced by such Note and
interest thereon shall at all times (including after any
assignment pursuant to SECTION 12.3) be represented by one or
more Notes payable to the order of the payee named therein or
any assignee pursuant to SECTION 12.3, except to the extent
that any such Lender or assignee subsequently returns any
such Note for cancellation and requests that such Loans once
again be evidenced as described in paragraphs (i) and
(ii) above.
2.14. TELEPHONIC NOTICES. The Borrower hereby authorizes the
Lenders and the Administrative Agent to extend, convert or
continue Advances, effect selections of Types of Advances and to
transfer funds based on telephonic notices made by any person or
persons the Administrative Agent or any Lender in good faith
believes to be acting on behalf of the Borrower. The Borrower
agrees to deliver promptly to the Administrative Agent a written
confirmation, if such confirmation is requested by the
Administrative Agent or any Lender, of each telephonic notice
signed by an Authorized Officer. If the written confirmation
differs in any material respect from the action taken by the
Administrative Agent and the Lenders, the records of the
Administrative Agent and the Lenders shall govern absent manifest
error.
2.15. INTEREST PAYMENT DATES; INTEREST AND FEE BASIS.
Interest accrued on each Floating Rate Advance shall be payable
on each Payment Date, commencing with the first such date to
occur after the date hereof and at maturity. Interest accrued on
each Eurodollar Advance shall be payable on the last day of its
applicable Interest Period, on any date on which the Eurodollar
Advance is prepaid, whether by acceleration or otherwise, and at
maturity. Interest accrued on each Eurodollar Advance having an
Interest Period longer than three months shall also be payable on
the last day of each three-month interval during such Interest
Period. All computations of interest for Floating Rate Loans
when the Alternate Base Rate is determined by the Prime Rate
shall be made on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed. All other computations of
interest and fees shall be calculated for actual days elapsed on
the basis of a 360-day year. Interest shall be payable for the
day an Advance is made but not for the day of any payment on the
amount paid if payment is received prior to noon (Chicago time)
at the place of payment (it being understood that the
Administrative Agent shall be deemed to have received a payment
prior to noon (Chicago time) if (x) the Borrower has provided the
Administrative Agent with evidence satisfactory to the
Administrative Agent that the Borrower has initiated a wire
transfer of such payment prior to such time and (y) the
Administrative Agent actually receives such payment on the same
Business Day on which such wire transfer was initiated). If any
payment of principal of or interest on an Advance shall become
due on a day which is not a Business Day, such payment shall be
made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in
computing interest in connection with such payment.
2.16. NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS
AND COMMITMENT REDUCTIONS. Promptly after receipt thereof, the
Administrative Agent will notify each Lender of the contents of
each Aggregate Commitment reduction notice, Borrowing Notice,
Conversion/Continuation Notice, and repayment notice received by
it hereunder. The
Page 16
Administrative Agent will notify each Lender of the interest rate
applicable to each Eurodollar Advance promptly upon determination
of such interest rate and will give each Lender prompt notice of
each change in the Alternate Base Rate.
2.17. LENDING INSTALLATIONS. Each Lender may book its Loans
at any Lending Installation selected by such Lender and may
change its Lending Installation from time to time. All terms of
this Agreement shall apply to any such Lending Installation and
the Loans and any Notes issued hereunder shall be deemed held by
each Lender for the benefit of such Lending Installation. Each
Lender may, by written notice to the Administrative Agent and the
Borrower in accordance with ARTICLE XIII, designate replacement
or additional Lending Installations through which Loans will be
made by it and for whose account Loan payments are to be made.
2.18. NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT.
Unless the Borrower or a Lender, as the case may be, notifies the
Administrative Agent prior to the date on which it is scheduled
to make payment to the Administrative Agent of (i) in the case of
a Lender, the proceeds of a Loan or (ii) in the case of the
Borrower, a payment of principal, interest or fees to the
Administrative Agent for the account of the Lenders, that it does
not intend to make such payment, the Administrative Agent may
assume that such payment has been made. The Administrative Agent
may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such
assumption. If such Lender or the Borrower, as the case may be,
has not in fact made such payment to the Administrative Agent,
the recipient of such payment shall, on demand by the
Administrative Agent, repay to the Administrative Agent the
amount so made available together with interest thereon in
respect of each day during the period commencing on the date such
amount was so made available by the Administrative Agent until
the date the Administrative Agent recovers such amount at a rate
per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (y) in the case of
payment by the Borrower, the interest rate applicable to the
relevant Loan.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. YIELD PROTECTION. If, on or after the date of this
Agreement, the adoption of any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law), or any change
in the interpretation or administration thereof by any
governmental or quasi-governmental authority, central bank or
comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender or any
applicable Lending Installation with any request or directive
(whether or not having the force of law) of any such authority,
central bank or comparable agency:
(i) subjects any Lender or any applicable Lending Installation
to any Taxes, or changes the basis of taxation of payments
(other than with respect to Excluded Taxes) to any Lender
in respect of its Eurodollar Loans, or
Page 17
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender, or any
applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest
rate applicable to Eurodollar Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending
Installation of making, funding or maintaining its Eurodollar
Loans or reduces any amount receivable by any Lender or any
applicable Lending Installation in connection with its
Eurodollar Loans or requires any Lender or any applicable
Lending Installation to make any payment calculated by
reference to the amount of Eurodollar Loans held or interest
received by it, by an amount deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to such
Lender or applicable Lending Installation of making or maintaining its
Eurodollar Loans or Commitment or to reduce the return received by such
Lender or applicable Lending Installation in connection with such
Eurodollar Loans or Commitment, then, within 15 days of demand by such
Lender, the Borrower shall pay such Lender such additional amount or
amounts as will compensate such Lender for such increased cost or reduction
in amount received.
3.2. CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender
determines the amount of capital required or expected to be
maintained by such Lender, any Lending Installation of such
Lender or any corporation controlling such Lender is increased as
a result of a Change, then, within 15 days of demand by such
Lender, the Borrower shall pay such Lender the amount necessary
to compensate for any shortfall in the rate of return on the
portion of such increased capital which such Lender determines is
attributable to this Agreement, its Loans or its Commitment to
make Loans hereunder (after taking into account such Lender's
policies as to capital adequacy). "Change" means (i) any change
after the date of this Agreement in (or in the interpretation of)
the Risk-Based Capital Guidelines or (ii) any adoption of or
change in (or any change in the interpretation of) any other law,
governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having
the force of law) after the date of this Agreement which affects
the amount of capital required or expected to be maintained by
any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines" means
(x) the risk-based capital guidelines in effect in the United
States on the date of this Agreement, including transition rules,
and (y) the corresponding capital regulations promulgated by
regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and
Supervisory Practices Entitled "International Convergence of
Capital Measurements and Capital Standards," including transition
rules, and any amendments to such regulations adopted prior to
the date of this Agreement.
3.3. AVAILABILITY OF TYPES OF ADVANCES. If (i) any Lender
determines that maintenance of its Eurodollar Loans at a suitable
Lending Installation would violate any applicable law, rule,
regulation, or directive, whether or not having the force of law,
(ii) the Required Lenders determine that (a) deposits of a type
and maturity appropriate to match fund Eurodollar Advances are
not available or (b) the interest rate applicable to a Type of
Advance
Page 18
does not accurately reflect the cost of making or maintaining
such Advance or (iii) the Administrative Agent determines that
adequate and reasonable means do not exist for determining the
Eurodollar Base Rate, then the Administrative Agent shall suspend
the availability of the affected Type of Advance and, in the case
of clause (i), require any affected Eurodollar Advances to be
repaid or converted to Floating Rate Advances, subject to the
payment of any funding indemnification amounts required by
SECTION 3.4.
3.4. FUNDING INDEMNIFICATION. If any conversion, prepayment or
payment of a Eurodollar Advance occurs on a date which is not the
last day of the applicable Interest Period, whether because of
acceleration, prepayment or otherwise, or a Eurodollar Advance is
not made, paid, continued or converted on the date or in the
amount specified by the Borrower for any reason other than
default by the Lenders, the Borrower will indemnify each Lender
for any loss or cost incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating or
employing deposits acquired to fund or maintain such Eurodollar
Advance.
3.5. TAXES. (i) All payments by the Borrower to or for the
account of any Lender or the Administrative Agent hereunder or
under any Note shall be made free and clear of and without
deduction for any and all Taxes. If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum
payable hereunder to any Lender or the Administrative Agent, (a)
the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable
to additional sums payable under this SECTION 3.5) such Lender or
the Administrative Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions
been made, (b) the Borrower shall make such deductions, (c) the
Borrower shall pay the full amount deducted to the relevant
authority in accordance with applicable law and (d) the Borrower
shall furnish to the Administrative Agent the original copy of a
receipt evidencing payment thereof within 30 days after such
payment is made.
(ii) In addition, the Borrower hereby agrees to pay any present
or future stamp or documentary taxes and any other excise
or property taxes, charges or similar levies which arise
from any payment made hereunder or under any Note or from
the execution or delivery of, or otherwise with respect to,
this Agreement or any Note ("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the Administrative
Agent and each Lender for the full amount of Taxes
or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed on amounts payable under this SECTION 3.5)
paid by the Administrative Agent or such Lender and any
liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. Payments due under this
indemnification shall be made within 30 days of the date the
Administrative Agent or such Lender makes demand therefor
pursuant to SECTION 3.6.
(iv) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (each a "Non-U.S. Lender")
agrees that it will, not less than ten Business Days after the
date of this Agreement (or, if later, the date it becomes a party
hereto), (i) deliver to each of the Borrower and the
Page 19
Administrative Agent two duly completed copies of
United States Internal Revenue Service Form W-8BEN or
W-8ECI, 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, and (ii) deliver to each of the
Borrower and the Administrative Agent a United States
Internal Revenue Form W-8BEN or W-9, as the case may
be, and certify that it is entitled to an exemption
from United States backup withholding tax. Each Non-
U.S. Lender further undertakes to deliver to each of
the Borrower and the Administrative Agent (x) renewals
or additional copies of such form (or any successor
form) on or before the date that such form expires or
becomes obsolete, and (y) after the occurrence of any
event requiring a change in the most recent forms so
delivered by it, such additional forms or amendments
thereto as may be reasonably requested by the Borrower
or the Administrative Agent. All forms or amendments
described in the preceding sentence shall certify 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 forms inapplicable or which would
prevent such Lender from duly completing and delivering
any such form or amendment 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.
(iv) For any period during which a Non-U.S. Lender has failed to
provide the Borrower with an appropriate form pursuant to clause
(iv), above (unless such failure is due to a change in treaty,
law or regulation, or any change in the interpretation or
administration thereof by any governmental authority, occurring
subsequent to the date on which a form originally was required to
be provided), such Non-U.S. Lender shall not be entitled to
indemnification under this SECTION 3.5 with respect to Taxes
imposed by the United States; PROVIDED that, should a Non-U.S.
Lender which is otherwise exempt from or subject to a reduced
rate of withholding tax become subject to Taxes because of its
failure to deliver a form required under clause (iv), above, the
Borrower shall take such steps as such Non-U.S. Lender shall
reasonably request to assist such Non-U.S. Lender to recover such
Taxes.
(v) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or
any Note pursuant to the law of any relevant jurisdiction or any
treaty shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed
documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate.
Page 20
3.6. LENDER STATEMENTS; SURVIVAL OF INDEMNITY. To the extent
reasonably possible and upon the request of the Borrower, each
Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Loans to reduce any liability of the
Borrower to such Lender under SECTIONS 3.1, 3.2 and 3.5 or to
avoid the unavailability of Eurodollar Advances under SECTION
3.3, so long as such designation is not, in the judgment of such
Lender, disadvantageous to such Lender. Each Lender shall
deliver a written statement of such Lender to the Borrower (with
a copy to the Administrative Agent) as to the amount due, if any,
under SECTION 3.1, 3.2, 3.4 or 3.5. Such written statement shall
set forth in reasonable detail the calculations upon which such
Lender determined such amount and shall be final, conclusive and
binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in
connection with a Eurodollar Loan shall be calculated as though
each Lender funded its Eurodollar Loan through the purchase of a
deposit of the type and maturity corresponding to the deposit
used as a reference in determining the Eurodollar Rate applicable
to such Loan, whether in fact that is the case or not. Unless
otherwise provided herein, the amount specified in the written
statement of any Lender shall be payable on demand after receipt
by the Borrower of such written statement. The obligations of
the Borrower under SECTIONS 3.1, 3.2, 3.4 and 3.5 shall survive
payment of the Obligations and termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. INITIAL ADVANCE. The Lenders shall not be required to make
the initial Advance hereunder until the Borrower has furnished
the Administrative Agent with (a) all fees required to be paid to
the Lenders on the date hereof, (b) evidence that the Borrower's
existing credit facility with Bank One, NA has been (or,
concurrently with the initial Advance hereunder, will be) paid in
full and (c) all of the following, in form and substance
satisfactory to the Administrative Agent and each Lender, and in
sufficient copies for each Lender:
(i) Copies of the articles or certificate of incorporation of
the Borrower, together with all amendments, certified by the
Secretary or an Assistant Secretary of the Borrower, and a
certificate of good standing, certified by the appropriate
governmental officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or an Assistant Secretary
of the Borrower, of its by-laws and of its Board of Directors'
resolutions and of resolutions or actions of any other body
authorizing the execution of the Loan Documents to which the
Borrower is a party.
(iii) An incumbency certificate, executed by the Secretary or
an Assistant Secretary of the Borrower, which shall identify by
name and title and bear the signatures of the Authorized Officers
and any other officers of the Borrower authorized to sign the
Loan Documents to which the Borrower is a party, upon which
certificate the Administrative Agent and the Lenders shall be
entitled to rely until informed of any change in writing by the
Borrower.
Page 21
(iv) A certificate, signed by the chief accounting officer or the
chief financial officer of the Borrower, stating that on the
initial Borrowing Date no Default or Unmatured Default has
occurred and is continuing.
(v) A written opinion of the Borrower's counsel, addressed to
the Administrative Agent and the Lenders in substantially the
form of Exhibit A.
(vi) Executed counterparts of this Agreement executed by the
Borrower and each Lender.
(vii) Any Notes requested by a Lender pursuant to SECTION
2.13 payable to the order of each such requesting Lender.
(viii) A copy of the SEC Order authorizing the Borrower to
incur the Indebtedness contemplated by the Loan Documents,
certified by the Secretary or an Assistant Secretary of the
Borrower.
(ix) Written money transfer instructions, in substantially the
form of Exhibit D, addressed to the Administrative Agent and
signed by an Authorized Officer who has executed and delivered an
incumbency certificate in accordance with the terms hereof,
together with such other related money transfer authorizations as
the Administrative Agent may have reasonably requested.
(x) Such other documents as any Lender or its counsel may have
reasonably requested.
4.2. EACH ADVANCE. The Lenders shall not be required to make any
Advance (other than an Advance that, after giving effect thereto
and to the application of the proceeds thereof, does not increase
the aggregate amount of outstanding Advances), unless on the
applicable Borrowing Date:
(i) there exists no Default or Unmatured Default.
(ii) the representations and warranties contained in ARTICLE V
are true and correct as of such Borrowing Date except to the
extent any such representation or warranty is stated to relate
solely to an earlier date, in which case such representation or
warranty shall have been true and correct on and as of such
earlier date.
(iii) the SEC Order shall not have expired or been revoked
and shall permit the Borrower to incur the Indebtedness evidenced
by such Advance. The Borrower shall, upon request, provide the
Administrative Agent with evidence satisfactory to the
Administrative Agent that, after giving effect to such Advance,
the aggregate amount of short-term debt instruments issued by the
Borrower in reliance upon the SEC Order shall not exceed the
maximum amount of Indebtedness authorized by the SEC Order.
Page 22
Each delivery of a Borrowing Notice shall constitute a
representation and warranty by the Borrower that the conditions
contained in SECTIONS 4.2(I) and (II) have been satisfied. Any
Lender may require delivery of a duly completed compliance
certificate in substantially the form of Exhibit B as a condition
to making an Advance.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1. EXISTENCE AND STANDING. Each of the Borrower and its
Significant Subsidiaries is a corporation, partnership (in the
case of Subsidiaries only) or limited liability company duly and
properly incorporated or organized, as the case may be, validly
existing and (to the extent such concept applies to such entity)
in good standing under the laws of its jurisdiction of
incorporation or organization and has all requisite authority to
conduct its business in each jurisdiction in which its business
is conducted.
5.2. AUTHORIZATION AND VALIDITY. The Borrower has the power and
authority and legal right to execute and deliver the Loan
Documents and to perform its obligations thereunder. The
execution and delivery by the Borrower of the Loan Documents and
the performance of its obligations thereunder have been duly
authorized by proper corporate proceedings, and the Loan
Documents constitute legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with
their terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally.
5.3. NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and
delivery by the Borrower of the Loan Documents, nor the
consummation of the transactions therein contemplated, nor
compliance with the provisions thereof will violate (i) any law,
rule, regulation, order, writ, judgment, injunction, decree or
award binding on the Borrower or (ii) the Borrower's articles or
certificate of incorporation or by-laws or (iii) the provisions
of any indenture, instrument or agreement to which the Borrower
is a party or is subject, or by which it, or its Property, is
bound, or conflict with or constitute a default thereunder, or
result in, or require, the creation or imposition of any Lien in,
of or on the Property of the Borrower pursuant to the terms of
any such indenture, instrument or agreement. No order, consent,
adjudication, approval, license, authorization, or validation of,
or filing, recording or registration with, or exemption by, or
other action in respect of any governmental or public body or
authority, or any subdivision thereof, which has not been
obtained by the Borrower, is required to be obtained by the
Borrower in connection with the execution and delivery of the
Loan Documents, the borrowings under this Agreement, the payment
and performance by the Borrower of the Obligations or the
legality, validity, binding effect or enforceability of any of
the Loan Documents.
5.4. FINANCIAL STATEMENTS. The December 31, 2000, March 31,
2001, June 30, 2001, September 30, 2001 and December 31, 2001
consolidated financial statements of KCPL and its Subsidiaries
heretofore delivered to the Lenders were prepared in accordance
with GAAP
Page 23
and fairly present the consolidated financial condition and
operations of the Borrower and its Subsidiaries at such date and
the consolidated results of their operations for the period then
ended subject, in the case of the March 31, 2001, June 30, 2001,
September 30, 2001 and December 31, 2001 financial statements, to
normal year-end adjustments.
5.5. MATERIAL ADVERSE CHANGE. Since December 31, 2001, there has
been no change in the business, Property, prospects, condition
(financial or otherwise) or results of operations of the Borrower
and its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect.
5.6. TAXES. The Borrower and its Significant Subsidiaries have
filed all United States federal tax returns and all other
material tax returns which are required to be filed and have paid
all taxes due and payable pursuant to said returns or pursuant to
any assessment received by the Borrower or any of its Significant
Subsidiaries, except such taxes, if any, as are being contested
in good faith and as to which adequate reserves have been
provided in accordance with GAAP and as to which no Lien exists.
No tax liens have been filed and no material claims are being
asserted against the Borrower or any Significant Subsidiary with
respect to any such taxes. The charges, accruals and reserves on
the books of the Borrower and its Significant Subsidiaries in
respect of any taxes or other governmental charges are adequate.
5.7. LITIGATION; ETC. Except as set forth in the Borrower's `34
Act Reports, there is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge
of any of their officers, threatened against or affecting the
Borrower or any of its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect or which seeks to
prevent, enjoin or delay the making of any Loans. Other than any
liability incident to any litigation, arbitration or proceeding
which could not reasonably be expected to have a Material Adverse
Effect, the Borrower has no material contingent obligations not
provided for or disclosed in the financial statements referred to
in SECTION 5.4.
5.8. ERISA. The Borrower and each other member of the Controlled
Group has fulfilled its obligations under the minimum funding
standards of ERISA and the Code with respect to each Plan and is
in compliance in all material respects with the presently
applicable provisions of ERISA and the Code with respect to each
Plan. Neither the Borrower nor any other member of the
Controlled Group has (i) sought a waiver of the minimum funding
standard under Section 412 of the Code in respect of any Plan,
(ii) failed to make any contribution or payment to any Plan or
Multiemployer Plan, or made any amendment to any Plan which has
resulted or could result in the imposition of a Lien or the
posting of a bond or other security under ERISA or the Code or
(iii) incurred any liability under Title IV of ERISA other than a
liability to the PBGC for premiums under Section 4007 of ERISA.
5.9. ACCURACY OF INFORMATION. No information, exhibit or report
furnished by the Borrower or any of its Subsidiaries to the
Administrative Agent or to any Lender in connection with the
negotiation of, or compliance with, the Loan Documents contained
any material misstatement of fact or omitted to state a material
fact or any fact necessary to make the statements contained
therein not misleading.
Page 24
5.10. REGULATION U. The Borrower is not engaged and will not
engage, principally or as one of its important activities, in the
business of purchasing or carrying margin stock (as defined in
Regulation U), or extending credit for the purpose of purchasing
or carrying margin stock. Margin stock constitutes less than 25%
of the value of those assets of the Borrower and its Subsidiaries
which are subject to any limitation on sale, pledge or other
restriction hereunder.
5.11. MATERIAL AGREEMENTS. Neither the Borrower nor any
Subsidiary is a party to any agreement or instrument or subject
to any charter or other corporate restriction which is reasonably
likely to have a Material Adverse Effect. Neither the Borrower
nor any Subsidiary is in default in the performance, observance
or fulfillment of any of the obligations, covenants or conditions
contained in any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect.
5.12. COMPLIANCE WITH LAWS. The Borrower and its
Subsidiaries have complied with all applicable statutes, rules,
regulations, orders and restrictions of any domestic or foreign
government or any instrumentality or agency thereof having
jurisdiction over the conduct of their respective businesses or
the ownership of their respective Property except for any failure
to comply with any of the foregoing which could not reasonably be
expected to have a Material Adverse Effect.
5.13. OWNERSHIP OF PROPERTIES. On the date of this
Agreement, the Borrower and its Significant Subsidiaries will
have good title, free of all Liens other than those permitted by
SECTION 6.12, to all of the Property and assets reflected in the
Borrower's most recent consolidated financial statements provided
to the Administrative Agent as owned by the Borrower and its
Subsidiaries.
5.14. PLAN ASSETS; PROHIBITED TRANSACTIONS. The Borrower is
not an entity deemed to hold "plan assets" within the meaning of
29 C.F.R. 2510.3-101 of an employee benefit plan (as defined in
Section 3(3) of ERISA) which is subject to Title I of ERISA or
any plan (within the meaning of Section 4975 of the Code), and
neither the execution of this Agreement nor the making of Loans
hereunder gives rise to a prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Code.
5.15. ENVIRONMENTAL MATTERS. Except as set forth in the
Borrower's `34 Act Reports, there are no known risks and
liabilities accruing to the Borrower or any of its Subsidiaries
due to Environmental Laws that could reasonably be expected to
have a Material Adverse Effect.
5.16. INVESTMENT COMPANY ACT. Neither the Borrower nor any
Subsidiary is an "investment company" or a company "controlled"
by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended.
5.17. PUBLIC UTILITY HOLDING COMPANY ACT. The Borrower is a
"holding company" within the meaning of PUHCA.
PARI PASSU INDEBTEDNESS. The Indebtedness under the Loan
Documents ranks at least PARI PASSU with all other unsecured
Indebtedness of the Borrower.
Page 25
5.18. SOLVENCY. As of the date hereof and after giving
effect to the consummation of the transactions contemplated by
the Loan Documents, the Borrower and each Significant Subsidiary
is solvent. For purposes of the preceding sentence, solvent
means (a) the fair saleable value (on a going concern basis) of
the Borrower's assets or a Significant Subsidiary's assets, as
applicable, exceed its liabilities, contingent or otherwise,
fairly valued, (b) such Person will be able to pay its debts as
they become due and (c) such Person will not be left with
unreasonably small capital as is necessary to satisfy all of its
current and reasonably anticipated obligations giving due
consideration to the prevailing practice in the industry in which
such Person is engaged. In computing the amount of contingent
liabilities at any time, it is intended that such liabilities
will be computed at the amount which, in light of all the facts
and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured
liability. The Borrower is not entering into the Loan Documents
with the actual intent to hinder, delay or defraud its current or
future creditors, nor does the Borrower intend to or believe that
it will incur, as a result of entering into this Agreement and
the other Loan Documents, debts beyond its ability to repay.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required
Lenders shall otherwise consent in writing:
6.1. FINANCIAL REPORTING. The Borrower will maintain, for itself
and each Subsidiary, a system of accounting established and
administered in accordance with generally accepted accounting
principles, and furnish to the Lenders:
(i) Within 90 days after the close of each of its fiscal years,
an unqualified audit report certified by a firm of independent
certified public accountants which is a member of the "Big Five,"
prepared in accordance with GAAP on a consolidated basis for
itself and its Consolidated Subsidiaries, including balance
sheets as of the end of such period and related statements of
income, retained earnings and cash flows, accompanied by any
management letter prepared by said accountants.
(ii) Within 45 days after the close of the first three quarterly
periods of each of its fiscal years, for itself and its
Consolidated Subsidiaries, either (a) consolidated and
consolidating unaudited balance sheets as at the close of each
such period and consolidated and consolidating profit and loss
and reconciliation of surplus statements and a statement of cash
flows for the period from the beginning of such fiscal year to
the end of such quarter, all certified by its chief accounting
officer or chief financial officer or (b) if the Borrower is then
a "registrant" within the meaning of Rule 1-01 of Regulation S-X
of the SEC and required to file a report on Form 10-Q with the
SEC, a copy of the Borrower's report on Form 10-Q for such
quarterly period.
Page 26
(iii) Together with the financial statements required under
SECTIONS 6.1(I) and (II), a compliance certificate in
substantially the form of Exhibit B signed by its chief
accounting officer or chief financial officer setting forth
calculations of the financial covenants contained in SECTION 6
and stating that no Default or Unmatured Default exists, or if
any Default or Unmatured Default exists, stating the nature and
status thereof.
(iv) As soon as possible and in any event within 10 days after
the Borrower or any ERISA Affiliate knows that any Reportable
Event has occurred with respect to any Plan, a statement, signed
by the chief accounting or financial officer of the Borrower,
describing said Reportable Event and the action which the
Borrower or such ERISA Affiliate proposes to take with respect
thereto.
(v) As soon as possible and in any event within two days after
receipt of notice by the Borrower or any ERISA Affiliate of the
PBGC's intention to terminate any Plan or to have a trustee
appointed to administer any Plan, a copy of such notice.
(vi) Promptly upon the furnishing thereof to the shareholders of
the Borrower, copies of all financial statements, reports and
proxy statements so furnished.
(vii) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other
regular reports which the Borrower files with the SEC.
(viii) As soon as possible, and in any event within three days
after an Authorized Officer of the Borrower shall have knowledge
thereof, notice of any change by Xxxxx'x or S&P in the senior
unsecured debt rating of the Borrower.
(ix) Such other information (including non-financial information)
as the Administrative Agent or any Lender may from time to time
reasonably request.
The statements and reports required to be furnished by the
Borrower pursuant to CLAUSES (VI) and (VII) above shall be deemed
furnished for such purpose upon becoming publicly available on
the SEC's XXXXX web page.
6.2. PERMITS, ETC. The Borrower will, and will cause each
Significant Subsidiary to, take all reasonable action to maintain
all rights, privileges, permits, licenses and franchises
necessary or desirable in the normal conduct of its business,
except to the extent failure to do so could not reasonably be
expected to have a Material Adverse Effect; and preserve or renew
all of its registered patents, trademarks, trade names and
service marks, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.
6.3. USE OF PROCEEDS. The Borrower will use the proceeds of the
Advances (i) to repay its outstanding credit facility agented by
Bank One, NA, and (ii) for the general corporate and working
capital purposes of the Borrower and its Subsidiaries, including
support for the Borrower's commercial paper. The Borrower will
not use any of the proceeds of the Advances to purchase or carry
any margin stock (as defined in Regulation U) or to extend credit
for the purpose of purchasing or carrying margin stock. The
Borrower will not permit margin
Page 27
stock to constitute 25% or more of the value of those assets of
the Borrower and its Subsidiaries which are subject to any
limitation on sale, pledge or other restriction hereunder.
6.4. NOTICE OF DEFAULT. The Borrower will, and will cause each
Subsidiary to, give prompt notice in writing to the Lenders of
the occurrence of any Default or Unmatured Default and of any
other development, financial or otherwise, which could reasonably
be expected to have a Material Adverse Effect.
6.5. CONDUCT OF BUSINESS. The Borrower will, and will cause each
Significant Subsidiary to, carry on and conduct its business in
substantially the same manner and in substantially the same
fields of enterprise as it is presently conducted and do all
things necessary to remain duly incorporated or organized,
validly existing and (to the extent such concept applies to such
entity) in good standing as a domestic corporation, partnership
or limited liability company in its jurisdiction of incorporation
or organization, as the case may be, and maintain all requisite
authority to conduct its business in each jurisdiction in which
its business is conducted.
6.6. TAXES. The Borrower will, and will cause each Significant
Subsidiary to, timely file United States federal and applicable
foreign, state and local tax returns required by law and pay when
due all taxes, assessments and governmental charges and levies
upon it or its income, profits or Property, except those which
are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves have been set aside in
accordance with GAAP.
6.7. INSURANCE. The Borrower will, and will cause each
Significant Subsidiary to, maintain with financially sound and
reputable insurance companies that are not Affiliates of the
Borrower or its Subsidiaries (other than any captive insurance
company) insurance on all their 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, and the Borrower will
furnish to any Lender upon request full information as to the
insurance carried. Such insurance may be subject to
co-insurance, deductibility or similar clauses which, in effect,
result in self-insurance of certain losses; provided that such
self-insurance is in accord with the customary industry practices
for Persons in the same or similar businesses and adequate
insurance reserves are maintained in connection with such
self-insurance to the extent required by GAAP.
6.8. COMPLIANCE WITH LAWS. The Borrower will, and will cause
each Significant Subsidiary to, comply with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or
awards to which it may be subject including, without limitation,
all Environmental Laws, the failure to comply with which could
reasonably be expected to have a Material Adverse Effect.
6.9. MAINTENANCE OF PROPERTIES; BOOKS OF RECORD. The Borrower
will, and will cause each Significant Subsidiary to, (i) do all
things necessary to maintain, preserve, protect and keep its
Property in good repair, working order and condition, and make
all necessary and proper repairs, renewals and replacements so
that its business carried on in connection therewith may be
properly conducted at all times and (ii) keep proper books of
record and account, in which full and correct entries shall be
made of all material financial transactions and the assets and
business
Page 28
of the Borrower and each Significant Subsidiary in accordance
with GAAP; PROVIDED that nothing in this Section shall prevent
the Borrower or any Significant Subsidiary from discontinuing the
operation or maintenance of any of its Property or equipment if
such discontinuance is, in the judgment of such Person, desirable
in the conduct of its business.
6.10. INSPECTION. The Borrower will, and if a Default or
Event of Default exists, will cause each Subsidiary to, permit
the Administrative Agent and the Lenders, by their respective
representatives and agents, to inspect any of the Property, books
and financial records of such Person, to examine and make copies
of the books of accounts and other financial records of such
Person, and to discuss the affairs, finances and accounts of such
Person with, and to be advised as to the same by, such Person's
officers at such reasonable times and intervals as the
Administrative Agent or any Lender may designate. After the
occurrence and during the continuance of a Default, any such
inspection shall be at the Borrower's expense; at all other
times, the Borrower shall not be liable to pay the expenses of
the Administrative Agent or any Lender in connection with such
inspections.
6.11. CONSOLIDATIONS, MERGERS AND SALE OF ASSETS. The
Borrower will not, nor will it permit any Significant Subsidiary
(other than any Project Finance Subsidiary) to, sell, lease,
transfer, or otherwise dispose of all or substantially all of its
assets (whether by a single transaction or a number of related
transactions and whether at one time or over a period of time) or
consolidate with or merge into any Person or permit any Person to
merge into it, except
(i) A Wholly-Owned Subsidiary may be merged into the Borrower.
(ii) Any Significant Subsidiary may sell all or substantially all
of its assets to, or consolidate or merge into, another
Significant Subsidiary; PROVIDED that, immediately before and
any Default or Unmatured Default.
(iii) Strategic Energy, L.L.C. may sell accounts receivable
and contracts that generate accounts receivable, and KCPL may
sell accounts receivable, in each case pursuant to one or more
securitization transactions.
(iv) The Borrower may sell all or substantially all of its assets
to, or consolidate with or merge into, any other corporation, or
permit another corporation to merge into it; PROVIDED, HOWEVER,
that (a) the surviving corporation, if such surviving corporation
is not the Borrower, or the transferee corporation in the case of
a sale of all or substantially all of the Borrower's assets (1)
shall be a corporation organized and existing under the laws of
the United States of America or a state thereof or the District
of Columbia, and (2) shall expressly assume in writing the due
and punctual payment of the Obligations and the due and punctual
performance of and compliance with all of the terms of this
Agreement and the other Loan Documents to be performed or
complied with by the Borrower, (b) immediately before and after
such merger, consolidation or sale, there shall not exist any
Default or Unmatured Default and (c) the surviving corporation of
such merger or consolidation, or the transferee corporation of
the assets of the Borrower, as applicable, has, both immediately
before and after such merger,
Page 29
consolidation or sale, a Xxxxx'x Rating of Baa3 or
better or an S&P Rating of BBB - or better.
Notwithstanding the foregoing, the Borrower and its Consolidated
Subsidiaries (excluding Project Finance Subsidiaries) will not
convey, transfer, lease or otherwise dispose of (whether in one
transaction or a series of transactions, but excluding sales of
inventory in the ordinary course of business and sales of assets
permitted by clause (iii) above) in the aggregate within any 12-
month period, more than 20% of the aggregate book value of the
assets of the Borrower and its Consolidated Subsidiaries
(excluding Project Finance Subsidiaries) as calculated as of the
end of the most recent fiscal quarter.
6.12. LIENS. The Borrower will not, nor will it permit any
Significant Subsidiary (other than any Project Finance
Subsidiary) to, create, incur, or suffer to exist any Lien in, of
or on the Property of the Borrower or any of its Significant
Subsidiaries (other than any Project Finance Subsidiary), except:
(i) Liens for taxes, assessments or governmental charges or
levies on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are
being contested in good faith and by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have
been set aside on its books.
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the ordinary
course of business which secure payment of obligations not more
than 60 days past due or which are being contested in good faith
by appropriate proceedings and for which adequate reserves shall
have been set aside on its books.
(iii) Liens arising out of pledges or deposits in the
ordinary course of business under worker's compensation laws,
unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation, other
than any Lien imposed under ERISA.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar
character and which are not substantial in amount and do not in
any material way affect the marketability of the same or
interfere with the use thereof in the business of the Borrower or
its Significant Subsidiaries.
(v) The Lien of the General Mortgage Indenture and Deed of Trust
Dated December 1, 1986 from KCPL to UMB, N.A.
(vi) Liens existing on the date hereof and, in the case of any
Significant Subsidiary other than KCPL, described in SCHEDULE
6.12 and any renewal or extension thereof; PROVIDED that the
Property covered thereby is not increased and any renewal or
extension of the obligations secured or benefited thereby is
permitted by this Agreement.
Page 30
(vii) Judgment Liens which secure payment of legal
obligations that would not constitute a Default under SECTION
7.9.
(viii) Liens on Property acquired by the Borrower or a
Significant Subsidiary after the date hereof, existing on such
Property at the time of acquisition thereof (and not created in
anticipation thereof); PROVIDED that in any such case no such
Lien shall extend to or cover any other Property of the Borrower
or such Significant Subsidiary, as the case may be.
(ix) Deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations
of a like nature incurred in the ordinary course of business by
the Borrower or any Significant Subsidiary.
(x) Purchase money security interests on any Property acquired
or held by such Person in the ordinary course of business,
securing Indebtedness incurred or assumed for the purpose of
financing all or any part of the cost of acquiring such Property;
PROVIDED that (a) such Lien attaches to such Property
concurrently with or within 90 days after the acquisition
thereof, (b) such Lien attaches solely to the Property so
acquired in such transaction and (c) the principal amount of the
Indebtedness secured thereby does not exceed the cost or fair
market value determined at the date of incurrence, whichever is
lower, of the Property being acquired on the date of acquisition.
(xi) Liens on or over gas, oil, coal, fissionable material, or
other fuel or fuel products as security for any obligations
incurred by such Person for the sole purpose of financing the
acquisition or storage of such fuel or fuel products or, with
respect to nuclear fuel, the processing, reprocessing, sorting,
storage and disposal thereof.
(xii) Liens on (including Liens arising out of the sale of)
accounts receivable and/or contracts which will give rise to
accounts receivable of KCPL and Strategic Energy, L.L.C.; and
other Liens on (including Liens arising out of the sale of)
accounts receivable and/or contracts which will give rise to
accounts receivable of the Borrower or any Subsidiary in an
aggregate amount not at any time exceeding $10,000,000.
(xiii) Liens on Property of KLT Gas Inc. and its Subsidiaries
in favor of operators and non-operators under joint operating
agreements, pooling orders or agreements, unitization agreements
or similar contractual arrangements arising in the ordinary
course of the business of such Person relating to the development
or operation of oil and gas Properties to secure amounts owing,
which amounts are not yet due or are being contested in good
faith by appropriate proceedings if adequate reserves are
maintained on the books of such Person in accordance with GAAP.
(xiv) Liens on Property of KLT Gas Inc. and its Subsidiaries
under production sales agreements, division orders, operating
agreements and other agreements customary in the oil and gas
business for processing, production and selling
Page 31
hydrocarbons; PROVIDED that such Liens do not secure
obligations to deliver hydrocarbons at some future date
without receiving full payment therefor within 90 days
of delivery.
(xv) Liens on Property or assets of a Significant Subsidiary
securing obligations owing to the Borrower or any Significant
Subsidiary (other than a Project Finance Subsidiary).
(xvi) Liens on the stock or other equity interests of any
Project Finance Subsidiary to secure obligations of such Project
Finance Subsidiary (provided that the agreement under which any
such Lien is created shall expressly state that it is non-
recourse to the pledgor).
(xvii) Liens which would otherwise not be permitted by CLAUSES
(I) through (XVI) securing additional Indebtedness of the
Borrower or a Significant Subsidiary (other than a Project
Finance Subsidiary); PROVIDED that after giving effect thereto
the aggregate unpaid principal amount of Indebtedness (including,
without limitation, Capitalized Lease Obligations) of the
Borrower and its Significant Subsidiaries (other than any Project
Finance Subsidiary) (including prepayment premiums and penalties)
secured by Liens permitted by this CLAUSE (XVII) shall not exceed
the greater of (a) $50,000,000 and (b) 10% of Consolidated
Tangible Net Worth.
6.13. AFFILIATES. Except to the extent required by
applicable law with respect to transactions among the Borrower
and its Subsidiaries (excluding any Project Finance Subsidiary),
the Borrower will not, and will not permit any Subsidiary (other
than any Project Finance Subsidiary) to, enter into any
transaction (including, without limitation, the purchase or sale
of any Property or service) with, or make any payment or transfer
to, any Affiliate except in the ordinary course of business and
pursuant to the reasonable requirements of the Borrower's or such
Subsidiary's business and upon fair and reasonable terms no less
favorable to the Borrower or such Subsidiary than the Borrower or
such Subsidiary would obtain in a comparable arms-length
transaction.
6.14. ERISA. The Borrower will not, nor will it permit any
Significant Subsidiary to, (i) voluntarily terminate any Plan, so
as to result in any material liability of the Borrower or any
Significant Subsidiary to the PBGC or (ii) enter into any
Prohibited Transaction (as defined in Section 4975 of the Code
and in Section 406 of ERISA) involving any Plan which results in
any material liability of the Borrower or any Significant
Subsidiary or (iii) cause any occurrence of any Reportable Event
which results in any material liability of the Borrower or any
Significant Subsidiary to the PBGC or (iv) allow or suffer to
exist any other event or condition known to the Borrower which
results in any material liability of the Borrower or any
Significant Subsidiary to the PBGC.
6.15. TOTAL INDEBTEDNESS TO TOTAL CAPITALIZATION. The
Borrower shall at all times cause the ratio of (i) Total
Indebtedness to (ii) Total Capitalization to be less than or
equal to 0.65 to 1.0.
Page 32
6.16. INTEREST COVERAGE RATIO. The Borrower shall not permit
the Interest Coverage Ratio as of the end of any fiscal quarter
of the Borrower to be less than 2.0 to 1.0.
6.17. RESTRICTIONS ON SUBSIDIARY DIVIDENDS. Except as
described in SCHEDULE 6.17 (provided that the restrictions
described therein are removed prior to June 11, 2002), the
Borrower will not, nor will it permit any Significant Subsidiary
(other than any Project Finance Subsidiary) to, be a party to any
agreement prohibiting or restricting the ability of such
Significant Subsidiary to declare or pay dividends to the
Borrower.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events
shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or
on behalf of the Borrower to the Lenders or the Administrative Agent
under or in connection with this Agreement, any Loan, or any
certificate or information delivered in connection with this
Agreement or any other Loan Document shall be materially false on
the date as of which made.
7.2. Nonpayment of principal of any Loan when due or nonpayment
of interest upon any Loan or of any fee or other obligation under
any of the Loan Documents within five days after the same becomes
due.
7.3. The breach by the Borrower of any of the terms or
provisions of SECTION 6.3, 6.10 (with respect to the Borrower and its
Significant Subsidiaries only), 6.11, 6.12, 6.13, 6.15, 6.16 or
6.17.
7.4. The breach by the Borrower (other than a breach which
constitutes a Default under another Section of this ARTICLE VII)
of any of the terms or provisions of this Agreement which is not
remedied within 30 days after the earlier of (a) the Borrower
becoming aware of such breach and (b) receipt by the Borrower of
written notice from the Administrative Agent or any Lender;
PROVIDED that if such breach is capable of cure but (i) cannot be
cured by payment of money and (ii) cannot be cured by diligent
efforts within such 30-day period, but such diligent efforts
shall be properly commenced within such 30-day period and the
Borrower is diligently pursuing, and shall continue to pursue
diligently, remedy of such failure, the cure period shall be
extended for an additional 90 days, but in no event beyond the
Facility Termination Date.
7.5. Failure of the Borrower or any of its Significant
Subsidiaries to pay when due any Indebtedness aggregating in
excess of $25,000,000 ("Material Indebtedness"); or the default
by the Borrower or any of its Significant Subsidiaries in the
performance of any term, provision or condition contained in any
agreement under which any such Material Indebtedness was created
or is governed, or any other event shall occur or condition
exist, the effect of which default or event is to cause, or to
permit the holder or holders of such Material Indebtedness to
cause, such Material Indebtedness to become due prior to its
stated maturity; or any Material Indebtedness of the Borrower or
any of its Significant Subsidiaries shall be declared to be due
and payable or required to be prepaid or repurchased (other than
by a regularly scheduled payment) prior to the
Page 33
stated maturity thereof; or the Borrower or any of its
Significant Subsidiaries shall not pay, or admit in writing its
inability to pay, its debts generally as they become due.
7.6. The Borrower or any of its Significant Subsidiaries shall
(i) have an order for relief entered with respect to it under the
Federal bankruptcy laws as now or hereafter in effect, (ii) make
an assignment for the benefit of creditors, (iii) apply for,
seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for
it or any Substantial Portion of its Property, (iv) institute any
proceeding seeking an order for relief under the Federal
bankruptcy laws as now or hereafter in effect or seeking to
adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment
or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or
fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any
corporate, partnership or limited liability company action to
authorize or effect any of the foregoing actions set forth in
this SECTION 7.6 or (vi) fail to contest in good faith any
appointment or proceeding described in SECTION 7.7.
7.7. Without the application, approval or consent of the
Borrower or any of its Subsidiaries, a receiver, trustee, examiner,
liquidator or similar official shall be appointed for the
Borrower or any of its Subsidiaries or any Substantial Portion of
its Property, or a proceeding described in SECTION 7.6(IV) shall
be instituted against the Borrower or any of its Subsidiaries and
such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of 30 consecutive
days.
7.8. Any court, government or governmental agency shall
condemn, seize or otherwise appropriate, or take custody or control
of, all or any portion of the Property of the Borrower and its
Subsidiaries which, when taken together with all other Property
of the Borrower and its Subsidiaries so condemned, seized,
appropriated, or taken custody or control of, during the
twelve-month period ending with the month in which any such
action occurs, constitutes a Substantial Portion.
7.9. The Borrower or any of its Significant Subsidiaries
shall fail within 30 days to pay, bond or otherwise discharge (i)
any judgment or order for the payment of money in excess of
$25,000,000 (either singly or in the aggregate with other such
judgments) or (ii) any non-monetary final judgment that has, or
could reasonably be expected to have, a Material Adverse Effect,
in either case which is not stayed on appeal or otherwise being
appropriately contested in good faith.
7.10. A Change of Control shall occur.
7.11. A Reportable Event shall have occurred with respect
to a Plan which could reasonably be expected to have a Material
Adverse Effect and, 30 days after notice thereof shall have been
given to the Borrower by the Administrative Agent or any Lender,
such Reportable Event shall still exist.
Page 34
7.12. Any authorization or approval or other action by any
governmental authority or regulatory body required for the
execution, delivery or performance of this Agreement or any other
Loan Document by the Borrower shall fail to have been obtained or
be terminated, revoked or rescinded or shall otherwise no longer
be in full force and effect, and such occurrence shall (i)
adversely affect the enforceability of the Loan Documents against
the Borrower and (ii) to the extent that such occurrence can be
cured, shall continue for five days.
7.13. The Borrower shall fail to own, directly or indirectly,
all of the outstanding stock of KCPL which, in the absence of any
contingency, has the right to vote in an election of directors of
KCPL.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. ACCELERATION. If any Default described in SECTION 7.6 or
7.7 occurs with respect to the Borrower, the obligations of the
Lenders to make Loans hereunder shall automatically terminate and
the Obligations shall immediately become due and payable without
any election or action on the part of the Administrative Agent or
any Lender. If any other Default occurs, the Required Lenders
(or the Administrative Agent with the consent of the Required
Lenders) may terminate or suspend the obligations of the Lenders
to make Loans hereunder, or declare the Obligations to be due and
payable, or both, whereupon the Obligations shall become
immediately due and payable, without presentment, demand, protest
or notice of any kind, all of which the Borrower hereby expressly
waives.
If (a) within 30 days after acceleration of the maturity of
the Obligations or termination of the obligations of the Lenders
to make Loans hereunder as a result of any Default (other than
any Default as described in SECTION 7.6 or 7.7 with respect to
the Borrower) and (b) before any judgment or decree for the
payment of the Obligations due shall have been obtained or
entered, the Required Lenders (in their sole discretion) shall so
direct, the Administrative Agent shall, by notice to the
Borrower, rescind and annul such acceleration and/or termination.
8.2. AMENDMENTS. Subject to the provisions of this ARTICLE VIII,
the Required Lenders (or the Administrative Agent with the
consent in writing of the Required Lenders) and the Borrower may
enter into agreements supplemental hereto for the purpose of
adding or modifying any provisions to the Loan Documents or
changing in any manner the rights of the Lenders or the Borrower
hereunder or waiving any Default hereunder; PROVIDED, HOWEVER,
that no such supplemental agreement shall, without the consent of
all of the Lenders:
(i) Extend the final maturity of any Loan to a date after the
Facility Termination Date, or forgive all or any portion of
the principal amount thereof, or reduce the rate or extend
the time of payment of interest or fees thereon.
(ii) Reduce the percentage specified in the definition of
Required Lenders.
Page 35
(iii) Extend the Facility Termination Date, or reduce the
amount or extend the payment date for, the mandatory payments
required under SECTION 2.2, or increase the amount of the
Commitment of any Lender hereunder, or permit the Borrower to
assign its rights under this Agreement.
(iv) Amend this SECTION 8.2.
No amendment of any provision of this Agreement relating to the
Administrative Agent shall be effective without the written
consent of the Administrative Agent. The Administrative Agent
may waive payment of the fee required under SECTION 12.3.2
without obtaining the consent of any other party to this
Agreement.
8.3. PRESERVATION OF RIGHTS. No delay or omission of the Lenders
or the Administrative Agent to exercise any right under the Loan
Documents shall impair such right or be construed to be a waiver
of any Default or an acquiescence therein, and the making of a
Loan notwithstanding the existence of a Default or the inability
of the Borrower to satisfy the conditions precedent to such Loan
shall not constitute any waiver or acquiescence. Any single or
partial exercise of any such right shall not preclude other or
further exercise thereof or the exercise of any other right, and
no waiver, amendment or other variation of the terms, conditions
or provisions of the Loan Documents whatsoever shall be valid
unless in writing signed by the Lenders required pursuant to
SECTION 8.2, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan
Documents or by law afforded shall be cumulative and all shall be
available to the Administrative Agent and the Lenders until the
Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. SURVIVAL OF REPRESENTATIONS. All representations and
warranties of the Borrower contained in this Agreement shall
survive the making of the Loans herein contemplated.
9.2. GOVERNMENTAL REGULATION. Anything contained in this
Agreement to the contrary notwithstanding, no Lender shall be
obligated to extend credit to the Borrower in violation of any
limitation or prohibition provided by any applicable statute or
regulation.
9.3. HEADINGS. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the
interpretation of any of the provisions of the Loan Documents.
9.4. ENTIRE AGREEMENT. The Loan Documents embody the entire
agreement and understanding among the Borrower, the
Administrative Agent and the Lenders and supersede all prior
agreements and understandings among the Borrower, the
Administrative Agent and the Lenders relating to the subject
matter thereof other than the fee letter described in SECTION
10.13.
Page 36
9.5. SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The
respective obligations of the Lenders hereunder are several and
not joint and no Lender shall be the partner or agent of any
other (except to the extent to which the Administrative Agent is
authorized to act as such). The failure of any Lender to perform
any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement
shall not be construed so as to confer any right or benefit upon
any Person other than the parties to this Agreement and their
respective successors and assigns; PROVIDED, HOWEVER, that the
parties hereto expressly agree that the Arranger shall enjoy the
benefits of the provisions of SECTIONS 9.6, 9.10 and 10.11 to the
extent specifically set forth therein and shall have the right to
enforce such provisions on its own behalf and in its own name to
the same extent as if it were a party to this Agreement.
9.6. EXPENSES; INDEMNIFICATION.
(i) The Borrower shall reimburse the Administrative Agent and
the Arranger for any reasonable costs and expenses (including
fees and charges of outside counsel for the Administrative Agent)
paid or incurred by the Administrative Agent or the Arranger in
connection with the preparation, negotiation, execution,
delivery, syndication, distribution (including, without
limitation, via the internet), review, amendment, modification,
and administration of the Loan Documents. The Borrower also
agrees to reimburse the Administrative Agent, the Arranger and
the Lenders for any reasonable costs, internal charges and
expenses (including fees and charges of attorneys for the
Administrative Agent, the Arranger and the Lenders, which
attorneys may be employees of the Administrative Agent, the
Arranger or the Lenders) paid or incurred by the Administrative
Agent, the Arranger or any Lender in connection with the
collection and enforcement, attempted enforcement, and
preservation of rights and remedies under, of the Loan Documents
(including all such costs and expenses incurred during any
"workout" or restructuring in respect of the Obligations and
during any legal proceeding).
(ii) The Borrower hereby further agrees to indemnify the
Administrative Agent, the Arranger, each Lender, their respective
affiliates and the directors, officers and employees of the
foregoing against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor
whether or not the Administrative Agent, the Arranger or any
Lender is a party thereto) which any of them may pay or incur
arising out of or relating to this Agreement, the other Loan
Documents, the transactions contemplated hereby or the direct or
indirect application or proposed application of the proceeds of
any Loan hereunder except to the extent that they are determined
in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from the gross negligence or
willful misconduct of the party seeking indemnification. The
obligations of the Borrower under this SECTION 9.6 shall survive
the payment of the Obligations and termination of this Agreement.
Page 37
9.7. NUMBERS OF DOCUMENTS. All statements, notices, closing
documents, and requests hereunder shall be furnished to the
Administrative Agent with sufficient counterparts so that the
Administrative Agent may furnish one to each of the Lenders.
9.8. ACCOUNTING. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all
accounting determinations hereunder shall be made in accordance
with GAAP.
9.9. SEVERABILITY OF PROVISIONS. Any provision in any Loan
Document that is held to be inoperative, unenforceable, or
invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable, or invalid without affecting the
remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan
Documents are declared to be severable.
9.10. NONLIABILITY OF LENDERS. The relationship between the
Borrower on the one hand and the Lenders and the Administrative
Agent on the other hand shall be solely that of borrower and
lender. Neither the Administrative Agent, the Arranger nor any
Lender shall have any fiduciary responsibilities to the Borrower.
Neither the Administrative Agent, the Arranger nor any Lender
undertakes any responsibility to the Borrower to review or inform
the Borrower of any matter in connection with any phase of the
Borrower's business or operations. The Borrower agrees that
neither the Administrative Agent, the Arranger nor any Lender
shall have liability to the Borrower (whether sounding in tort,
contract or otherwise) for losses suffered by the Borrower in
connection with, arising out of, or in any way related to, the
transactions contemplated and the relationship established by the
Loan Documents, or any act, omission or event occurring in
connection therewith, unless it is determined in a final non-
appealable judgment by a court of competent jurisdiction that
such losses resulted from the gross negligence or willful
misconduct of the party from which recovery is sought. Neither
the Administrative Agent, the Arranger nor any Lender shall have
any liability with respect to, and the Borrower hereby waives,
releases and agrees not to xxx for, any special, indirect or
consequential damages suffered by the Borrower in connection
with, arising out of, or in any way related to the Loan Documents
or the transactions contemplated thereby.
9.11. CONFIDENTIALITY. Each Lender agrees to hold any
confidential information which it may receive from the Borrower,
any Subsidiary or any DTI Company pursuant to this Agreement in
confidence, except for disclosure (i) to its Affiliates and to
other Lenders and their respective Affiliates, (ii) to legal
counsel, accountants, and other professional advisors to that
Lender or to a Transferee, (iii) to regulatory officials, (iv) to
any Person as requested pursuant to or as required by law,
regulation, or legal process, (v) to any Person in connection
with any legal proceeding to which that Lender is a party, (vi)
permitted by SECTION 12.4, and (vii) to the extent such
information (a) becomes publicly available other than as a result
of a breach of this Section or (b) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis
from a source other than the Borrower, any Subsidiary or any DTI
Company.
9.12. NONRELIANCE. Each Lender hereby represents that it is
not relying on or looking to any margin stock (as defined in
Regulation U of the Board of Governors of the Federal Reserve
System) for the repayment of the Loans provided for herein.
Page 38
ARTICLE X
THE ADMINISTRATIVE AGENT
10.1. APPOINTMENT; NATURE OF RELATIONSHIP. Bank One is
hereby appointed by each of the Lenders as its contractual
representative (herein referred to as the "Administrative Agent")
hereunder and under each other Loan Document, and each of the
Lenders irrevocably authorizes the Administrative Agent to act as
the contractual representative of such Lender with the rights and
duties expressly set forth herein and in the other Loan
Documents. The Administrative Agent agrees to act as such
contractual representative upon the express conditions contained
in this ARTICLE X. Notwithstanding the use of the defined term
"Administrative Agent," it is expressly understood and agreed
that the Administrative Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement or any
other Loan Document and that the Administrative Agent is merely
acting as the contractual representative of the Lenders with only
those duties as are expressly set forth in this Agreement and the
other Loan Documents. In its capacity as the Lenders'
contractual representative, the Administrative Agent (i) does not
hereby assume any fiduciary duties to any of the Lenders and (ii)
is acting as an independent contractor, the rights and duties of
which are limited to those expressly set forth in this Agreement
and the other Loan Documents. Each of the Lenders hereby agrees
to assert no claim against the Administrative Agent on any agency
theory or any other theory of liability for breach of fiduciary
duty, all of which claims each Lender hereby waives.
10.2. POWERS. The Administrative Agent shall have and may
exercise such powers under the Loan Documents as are specifically
delegated to the Administrative Agent by the terms of each
thereof, together with such powers as are reasonably incidental
thereto. The Administrative Agent shall have no implied duties
to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the
Loan Documents to be taken by the Administrative Agent.
10.3. GENERAL IMMUNITY. Neither the Administrative Agent
nor any of its directors, officers, agents or employees shall be
liable to the Borrower or any Lender for any action taken or
omitted to be taken by it or them hereunder or under any other
Loan Document or in connection herewith or therewith except to
the extent such action or inaction is determined in a final non-
appealable judgment by a court of competent jurisdiction to have
arisen from the gross negligence or willful misconduct of such
Person.
10.4. NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither
the Administrative Agent nor any of its directors, officers,
agents or employees shall be responsible for or have any duty to
ascertain, inquire into, or verify (i) any statement, warranty or
representation made in connection with any Loan Document or any
borrowing hereunder; (ii) the performance or observance of any of
the covenants or agreements of any obligor under any Loan
Document, including, without limitation, any agreement by an
obligor to furnish information directly to each Lender; (iii) the
satisfaction of any condition specified in ARTICLE IV, except
receipt of items required to be delivered solely to the
Administrative Agent; (iv) the existence or possible existence of
any Default or Unmatured Default; (v) the validity,
enforceability, effectiveness,
Page 39
sufficiency or genuineness of any Loan Document or any other
instrument or writing furnished in connection therewith; (vi) the
value, sufficiency, creation, perfection or priority of any Lien
in any collateral security; or (vii) the financial condition of
the Borrower or any guarantor of any of the Obligations or of any
of the Borrower's or any such guarantor's respective
Subsidiaries. The Administrative Agent shall have no duty to
disclose to the Lenders information that is not required to be
furnished by the Borrower to the Administrative Agent at such
time, but is voluntarily furnished by the Borrower to the
Administrative Agent (either in its capacity as Administrative
Agent or in its individual capacity).
10.5. ACTION ON INSTRUCTIONS OF LENDERS. The Administrative
Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder and under any other Loan
Document in accordance with written instructions signed by the
Required Lenders, and such instructions and any action taken or
failure to act pursuant thereto shall be binding on all of the
Lenders. The Lenders hereby acknowledge that the Administrative
Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this
Agreement or any other Loan Document unless it shall be requested
in writing to do so by the Required Lenders. The Administrative
Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it
shall first be indemnified to its satisfaction by the Lenders pro
rata against any and all liability, cost and expense that it may
incur by reason of taking or continuing to take any such action.
10.6. EMPLOYMENT OF AGENTS AND COUNSEL. The Administrative
Agent may execute any of its duties as Administrative Agent
hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be
answerable to the Lenders, except as to money or securities
received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care. The Administrative Agent shall be entitled
to advice of counsel concerning the contractual arrangement
between the Administrative Agent and the Lenders and all matters
pertaining to the Administrative Agent's duties hereunder and
under any other Loan Document.
10.7. RELIANCE ON DOCUMENTS; COUNSEL. The Administrative
Agent shall be entitled to rely upon any Note, notice, consent,
certificate, affidavit, letter, telegram, statement, paper or
document believed by it to be genuine and correct and to have
been signed or sent by the proper person or persons, and, in
respect to legal matters, upon the opinion of counsel selected by
the Administrative Agent, which counsel may be employees of the
Administrative Agent.
10.8. ADMINISTRATIVE AGENT'S REIMBURSEMENT AND
INDEMNIFICATION. The Lenders agree to reimburse and indemnify
the Administrative Agent ratably in proportion to their
respective Commitments (or, if the Commitments have been
terminated, in proportion to their Commitments immediately prior
to such termination) (i) for any amounts not reimbursed by the
Borrower for which the Administrative Agent is entitled to
reimbursement by the Borrower under the Loan Documents, (ii) for
any other expenses incurred by the Administrative Agent on behalf
of the Lenders, in connection with the preparation, execution,
delivery, administration and enforcement of the Loan Documents
(including, without limitation, for any expenses incurred by the
Administrative Agent in connection with any dispute between the
Administrative Agent and any Lender or between two or more of the
Lenders) and (iii) for any liabilities, obligations,
Page 40
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which
may be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of the
Loan Documents or any other document delivered in connection
therewith or the transactions contemplated thereby (including,
without limitation, for any such amounts incurred by or asserted
against the Administrative Agent in connection with any dispute
between the Administrative Agent and any Lender or between two or
more of the Lenders), or the enforcement of any of the terms of
the Loan Documents or of any such other documents; PROVIDED that
no Lender shall be liable for any of the foregoing to the extent
any of the foregoing is found in a final non-appealable judgment
by a court of competent jurisdiction to have resulted from the
gross negligence or willful misconduct of the Administrative
Agent. The obligations of the Lenders under this SECTION 10.8
shall survive payment of the Obligations and termination of this
Agreement.
10.9. NOTICE OF DEFAULT. The Administrative Agent shall not
be deemed to have knowledge or notice of the occurrence of any
Default or Unmatured Default hereunder unless the Administrative
Agent has received written notice from a Lender or the Borrower
referring to this Agreement describing such Default or Unmatured
Default and stating that such notice is a "notice of default".
In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give prompt notice thereof
to the Lenders.
10.10. RIGHTS AS A LENDER. In the event the Administrative
Agent is a Lender, the Administrative Agent shall have the same
rights and powers hereunder and under any other Loan Document
with respect to its Commitment and its Loans as any Lender and
may exercise the same as though it were not the Administrative
Agent, and the term "Lender" or "Lenders" shall, at any time when
the Administrative Agent is a Lender, unless the context
otherwise indicates, include the Administrative Agent in its
individual capacity. The Administrative Agent and its Affiliates
may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition
to those contemplated by this Agreement or any other Loan
Document, with the Borrower or any of its Subsidiaries in which
the Borrower or such Subsidiary is not restricted hereby from
engaging with any other Person.
10.11. LENDER CREDIT DECISION. Each Lender acknowledges
that it has, independently and without reliance upon the
Administrative Agent, the Arranger or any other Lender and based
on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this
Agreement and the other Loan Documents. Each Lender also
acknowledges that it will, independently and without reliance
upon the Administrative Agent, the Arranger 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 action under this Agreement and
the other Loan Documents.
10.12. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative
Agent may resign at any time by giving written notice thereof to
the Lenders and the Borrower, such resignation to be effective
upon the appointment of a successor Administrative Agent or, if
no successor Administrative Agent has been appointed, 45 days
after the retiring Administrative Agent gives notice of its
intention to resign. The Administrative Agent may be removed at
any time with or without cause by written notice received by the
Administrative Agent from the Required
Page 41
Lenders, such removal to be effective on the date specified by
the Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint, on behalf of
the Borrower and the Lenders, a successor Administrative Agent.
If no successor Administrative Agent shall have been so appointed
by the Required Lenders within 30 days after the resigning
Administrative Agent's giving notice of its intention to resign,
then the resigning Administrative Agent may appoint, on behalf of
the Borrower and the Lenders, a successor Administrative Agent.
Notwithstanding the previous sentence, the Administrative Agent
may at any time without the consent of the Borrower or any
Lender, appoint any of its Affiliates which is a commercial bank
as a successor Administrative Agent hereunder. If the
Administrative Agent has resigned or been removed and no
successor Administrative Agent has been appointed within the
applicable time period, the Lenders may perform all the duties of
the Administrative Agent hereunder and the Borrower shall make
all payments in respect of the Obligations to the applicable
Lender and for all other purposes shall deal directly with the
Lenders. No successor Administrative Agent shall be deemed to be
appointed hereunder until such successor Administrative Agent has
accepted the appointment. Any such successor Administrative
Agent shall be a commercial bank having capital and retained
earnings of at least $100,000,000. Upon the acceptance of any
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 resigning or removed
Administrative Agent. Upon the effectiveness of the resignation
or removal of the Administrative Agent, the resigning or removed
Administrative Agent shall be discharged from its duties and
obligations hereunder and under the Loan Documents. After the
effectiveness of the resignation or removal of an Administrative
Agent, the provisions of this ARTICLE X shall continue in effect
for the benefit of such Administrative Agent in respect of any
actions taken or omitted to be taken by it while it was acting as
the Administrative Agent hereunder and under the other Loan
Documents. In the event that there is a successor to the
Administrative Agent by merger, or the Administrative Agent
assigns its duties and obligations to an Affiliate pursuant to
this SECTION 10.12, then the term "Prime Rate" as used in this
Agreement shall mean the prime rate, base rate or other analogous
rate of the new Administrative Agent.
10.13. ADMINISTRATIVE AGENT'S FEE. The Borrower agrees to pay
to the Administrative Agent, for its own account, the fees agreed
to by the Borrower and the Administrative Agent pursuant to that
certain letter agreement dated October 2, 2001 or as otherwise
agreed from time to time.
10.14. DELEGATION TO AFFILIATES. The Borrower and the Lenders
agree that the Administrative Agent may delegate any of its
duties under this Agreement to any of its Affiliates. Any such
Affiliate (and such Affiliate's directors, officers, agents and
employees) which performs duties in connection with this
Agreement shall be entitled to the same benefits of the
indemnification, waiver and other protective provisions to which
the Administrative Agent is entitled under ARTICLES IX and X.
Page 42
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. SETOFF. In addition to, and without limitation of,
any rights of the Lenders under applicable law, if the Borrower
becomes insolvent, however evidenced, or any Default occurs, any
and all deposits (including all account balances, whether
provisional or final and whether or not collected or available)
and any other Indebtedness at any time held or owing by any
Lender or any Affiliate of any Lender to or for the credit or
account of the Borrower may be offset and applied toward the
payment of the Obligations owing to such Lender, whether or not
the Obligations, or any part hereof, shall then be due.
11.2. RATABLE PAYMENTS. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Loans (other than
payments received pursuant to SECTION 3.1, 3.2, 3.4 or 3.5) in a
greater proportion than that received by any other Lender, such
Lender agrees, promptly upon demand, to purchase a portion of the
Loans held by the other Lenders so that after such purchase each
Lender will hold its ratable proportion of the Loans. If any
Lender, whether in connection with setoff or amounts which might
be subject to setoff or otherwise, receives collateral or other
protection for its Obligations or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the
benefits of such collateral ratably in proportion to their Loans.
In case any such payment is disturbed by legal process, or
otherwise, appropriate further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. SUCCESSORS AND ASSIGNS. The terms and provisions of
the Loan Documents shall be binding upon and inure to the benefit
of the Borrower and the Lenders and their respective successors
and assigns, except that (i) the Borrower shall not have the
right to assign its rights or obligations under the Loan
Documents and (ii) any assignment by any Lender must be made in
compliance with SECTION 12.3. Notwithstanding clause (ii) of
this Section, any Lender may at any time, without the consent of
the Borrower or the Administrative Agent, assign all or any
portion of its rights under this Agreement and any Note to a
Federal Reserve Bank; PROVIDED, HOWEVER, that no such assignment
to a Federal Reserve Bank shall release the transferor Lender
from its obligations hereunder. The Administrative Agent may
treat the Person which made any Loan or which holds any Note as
the owner thereof for all purposes hereof unless and until such
Person complies with SECTION 12.3 in the case of an assignment
thereof or, in the case of any other transfer, a written notice
of the transfer is filed with the Administrative Agent. Any
assignee or transferee of the rights to any Loan or any Note
agrees by acceptance of such transfer or assignment to be bound
by all the terms and provisions of the Loan Documents. Any
request, authority or consent of any Person, who at the time of
making such request or giving such authority or consent is the
owner of the rights to any Loan (whether or not a Note
Page 43
has been issued in evidence thereof), shall be conclusive and
binding on any subsequent holder, transferee or assignee of the
rights to such Loan.
12.2. PARTICIPATIONS.
12.2.1. PERMITTED PARTICIPANTS; EFFECT. Any Lender may,
in the ordinary course of its business and in accordance with
applicable law, at any time sell to one or more banks or other
Persons ("Participants") participating interests in any Loan
owing to such Lender, any Note held by such Lender, any Commitment
of such Lender or any other interest, right and/or obligation of
such Lender under the Loan Documents. In the event of any such
sale by a Lender of participating interests to a Participant, such
Lender's obligations under the Loan Documents shall remain
unchanged, such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations,
such Lender shall remain the owner of its Loans and the holder of
any Note issued to it in evidence thereof for all purposes under
the Loan Documents, all amounts payable by the Borrower under
this Agreement shall be determined as if such Lender had not sold
such participating interests, and 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 the Loan Documents.
12.2.2. VOTING RIGHTS. Each Lender shall retain the sole
right to approve, without the consent of any Participant, any
amendment, modification or waiver of any provision of the Loan
Documents other than any amendment, modification or waiver with
respect to any Loan or Commitment in which such Participant has
an interest which forgives principal, interest or fees or reduces
the interest rate or fees payable with respect to any such Loan
or Commitment, extends the Facility Termination Date or postpones
any date fixed for any regularly-scheduled payment of principal
of, or interest or fees on, any such Loan or Commitment.
12.2.3. BENEFIT OF SETOFF. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided
in SECTION 11.1 in respect of its participating interest in
amounts owing under the Loan Documents to the same extent as if
the amount of its participating interest were owing directly to
it as a Lender under the Loan Documents; PROVIDED that each
Lender shall retain the right of setoff provided in Section 11.1
with respect to the amount of participating interests sold to
each Participant. The Lenders agree to share with each
Participant, and each Participant, by exercising the right of
setoff provided in SECTION 11.1, agrees to share with each
Lender, any amount received pursuant to the exercise of its right
of setoff, such amounts to be shared in accordance with SECTION
11.2 as if each Participant were a Lender.
12.3. ASSIGNMENTS.
12.3.1. PERMITTED ASSIGNMENTS. Any Lender may, in the
ordinary course of its business and in accordance with applicable
law, at any time assign to one or more banks or other entities
("Purchasers") all or any part of its rights and obligations
under the Loan Documents. Such assignment shall be substantially
in the form of Exhibit C or in such other form as may be agreed
to by the parties thereto. The consent of the Borrower and
Page 44
the Administrative Agent shall be required prior to an
assignment becoming effective with respect to a Purchaser
which is not a Lender or an Affiliate thereof; PROVIDED,
HOWEVER, that if a Default has occurred and is continuing,
the consent of the Borrower shall not be required. Such
consent shall not be unreasonably withheld or delayed. Each
such assignment shall (unless each of the Borrower and the
Administrative Agent otherwise consents or such assignment
is to an Affiliate of a Lender) be in an amount not less
than the lesser of (i) $5,000,000 or (ii) the remaining
amount of the assigning Lender's Commitment (calculated as
at the date of such assignment) or outstanding Loans (if
such Lender's Commitment has been terminated).
12.3.2. EFFECT OF ASSIGNMENT; EFFECTIVE DATE. Upon (i)
delivery to the Administrative Agent of a notice of assignment,
substantially in the form attached as SCHEDULE I to EXHIBIT C (a
"Notice of Assignment"), together with each consent required by
SECTION 12.3.1, and (ii) payment of a $4,000 fee to the
Administrative Agent for processing such assignment, (A) such
assignment shall become effective on the effective date specified
in such Notice of Assignment and (B) the transferor Lender shall,
to the extent provided in such Notice of Assignment, be released
from its obligations under this Agreement (and in the case of a
Notice of Assignment covering all of the transferor Lender's
rights and obligations under this Agreement, such transferor
Lender shall cease to be a party hereto). The Notice of
Assignment shall contain a representation by the Purchaser to the
effect that none of the consideration used to make the purchase
of the Commitment and the Loans under the applicable assignment
agreement are "plan assets" as defined under ERISA and that the
rights and interests of the Purchaser in and under the Loan
Documents will not be "plan assets" under ERISA. On and after
the effective date of such assignment, such Purchaser shall for
all purposes be a Lender party to this Agreement and any other
Loan Document executed by or on behalf of the Lenders and shall
have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party
hereto, and no further consent or action by the Borrower, the
Lenders or the Administrative Agent shall be required to release
the transferor Lender with respect to the percentage of the
Aggregate Commitment and the Loans assigned to such Purchaser.
Upon the consummation of any assignment to a Purchaser pursuant
to this SECTION 12.3.2, the transferor Lender, the Administrative
Agent and the Borrower shall, if the transferor Lender or the
Purchaser desires that its Loans be evidenced by Notes, make
appropriate arrangements so that new Notes or, as appropriate,
replacement Notes are issued to such transferor Lender and new
Notes or, as appropriate, replacement Notes, are issued to such
Purchaser, in each case in principal amounts reflecting their
respective Commitments, as adjusted pursuant to such assignment.
12.4. DISSEMINATION OF INFORMATION. The Borrower authorizes
each Lender to disclose to any Participant or Purchaser or any
other Person acquiring an interest in the Loan Documents by
operation of law (each a "Transferee") and any prospective
Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its
Subsidiaries; PROVIDED that each Transferee and prospective
Transferee agrees to be bound by SECTION 9.11.
Page 45
12.5. TAX TREATMENT. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws
of any jurisdiction other than the United States or any State
thereof, the transferor Lender shall cause such Transferee,
concurrently with the effectiveness of such transfer, to comply
with the provisions of SECTION 3.5(IV).
ARTICLE XIII
NOTICES
13.1. NOTICES. Except as otherwise permitted by SECTION 2.14
with respect to borrowing notices, all notices, requests and
other communications to any party hereunder shall be in writing
(including electronic transmission, facsimile transmission or
similar writing) and shall be given to such party: (i) in the
case of the Borrower or the Administrative Agent, at its address
or facsimile number set forth on the signature pages hereof, (ii)
in the case of any Lender, at its address or facsimile number set
forth below its signature hereto or (iii) in the case of any
party, at such other address or facsimile number as such party
may hereafter specify for the purpose by notice to the
Administrative Agent and the Borrower in accordance with the
provisions of this SECTION 13.1. Each such notice, request or
other communication shall be effective (a) if given by facsimile
transmission, when transmitted to the facsimile number specified
in this Section and confirmation of receipt is received, (b) if
given by mail, 72 hours after such communication is deposited in
the mails with first class postage prepaid, addressed as
aforesaid, or (c) if given by any other means, when delivered
(or, in the case of electronic transmission, received) at the
address specified in this Section; PROVIDED that notices to the
Administrative Agent under ARTICLE II shall not be effective
until received.
13.2. CHANGE OF ADDRESS. The Borrower, the Administrative
Agent and any Lender may each change the address for service of
notice upon it by a notice in writing to the other parties
hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one
agreement, and any of the parties hereto may execute this
Agreement by signing any such counterpart. This Agreement shall
be effective when it has been executed by the Borrower, the
Administrative Agent and the Lenders and each party has notified
the Administrative Agent by facsimile transmission or telephone
that it has taken such action.
Page 46
ARTICLE XV
OTHER AGENTS
No Lender identified on the cover page, the signature pages
or otherwise in this Agreement, or in any document related
hereto, as being the "Syndication Agent" or a "Co-Documentation
Agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement in such capacity
other than those applicable to all Lenders. Each Lender
acknowledges that it has not relied, and will not rely, on the
Syndication Agent or any Co-Documentation Agent in deciding to
enter into this Agreement or in taking or refraining from taking
any action hereunder or pursuant hereto.
Page 47
ARTICLE XVI
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
16.1. CHOICE OF LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF
CONFLICTS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL
LAWS APPLICABLE TO NATIONAL BANKS.
16.2. CONSENT TO JURISDICTION. THE BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY
UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO,
ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY
OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO BRING
PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST
THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE
ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH THIS AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN
CHICAGO, ILLINOIS.
16.3. WAIVER OF JURY TRIAL. THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY JURY
IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
Page 48
IN WITNESS WHEREOF, the Borrower, the Lenders and the
Administrative Agent have executed this Agreement as of the date
first above written.
GREAT PLAINS ENERGY INCORPORATED
By: /s/Xxxxxx X. Xxxxxxxx
Title: Vice President-Finance, Chief
Financial Officer and Treasurer
Address:
0000 Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Treasurer
Telephone: 000-000-0000
Fax: 000-000-0000
Email: XXXXXX.XXXXXXXX@XXXX.XXX
Signature Page 1
BANK ONE, NA (Main Office Chicago),
as Administrative Agent and as a Lender
By: /s/Xxxx Xx X.Xxxxxx
Title: Director
Address:
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: XxxxXx Xxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Email: XXXX_XX_XXXXXX@XXXXXXX.XXX
Operations Contact:
Attention: Xxxxxxx Xxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Email: XXXXXXX_XXXX@XXXXXXX.XXX
Signature Page 2
BNP PARIBAS, as Syndication Agent and as
a Lender
By: /s/Xxxx Xxxxxxxx
Title: Director
By: /s/Xxxxxxx Xxxxxxx
Title: Director
Address:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx XxXxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Email:
xxxxx.xxxxxxx@xxxxxxxx.xxxxxxxxxx.xxx
Operations Contact:
Attention: Xxxxx Xxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Email:
xxxxx.xxxxxx@xxxxxxxx.xxxxxxxxxx.xxx
Signature Page 3
BANK OF AMERICA, N.A., as Co-
Documentation Agent and as a Lender
By: /s/Xxxxxxxx Xxxxxxxxxx
Title: Principal
Address:
000 X. Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Email:
xxxxxxxx.x.xxxxxxxxxx@xxxxxxxxxxxxx.xxx
Operations Contact:
Attention: Hari Kalyandurg
Telephone: 000-000-0000
Fax: 000-000-0000
Email:
XXXX.X.XXXXXXXXXX@XXXXXXXXXXXXX.XXX
Signature Page 4
THE BANK OF NEW YORK, as Co-
Documentation Agent and as a Lender
By: /s/Xxxxxx X. Xxxxxx
Title: Vice President
Address:
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxx@xxxxxxxx.xxx
Operations Contact:
Attention: Xxxxxx Xxxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Signature Page 5
BAYERISCHE LANDESBANK GIROZENTRALE,
CAYMAN ISLANDS BRANCH
By: /s/Xxxxxxxx Xxxxxxxx
Title: Senior Vice President
By: /s/Xxxxx X. Xxxxx
Title: Vice President
Address:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Operations Contact:
Attention: Xxxxxxxx Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Signature Page 6
PNC BANK, NATIONAL ASSOCIATION
By: /s/Xxxxxx X. Xxxxxxx
Title: Vice President
Address:
One PNC Plaza
3rd Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: X. Xxxx Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Email: xxxxx.xxxxxxx@xxxxxxx.xxx
Operations Contact:
Attention: Xxxx Xxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Email: XXXX.XXXXXX@XXXXXXX.XXX
Signature Page 7
