EXHIBIT 4.48
364-DAY REVOLVING CREDIT AGREEMENT
among
NISOURCE FINANCE CORP.,
as Borrower,
NISOURCE INC.,
as Guarantor,
THE LEAD ARRANGERS
ARRANGERS
SENIOR MANAGING AGENTS
MANAGERS and
LENDERS
Party Hereto,
as Lenders,
CREDIT SUISSE FIRST BOSTON
as Syndication Agent,
BANK ONE, NATIONAL ASSOCIATION (Main Office, Chicago)
CITIBANK, N.A.
TORONTO DOMINION (TEXAS), INC.
as Co-Documentation Agents
BARCLAYS BANK PLC,
as Administrative Agent and LC Bank,
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BARCLAYS CAPITAL
and
CREDIT SUISSE FIRST BOSTON
Lead Arrangers
BARCLAYS CAPITAL
Sole Book Runner
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Dated as of March 23, 2001
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
SECTION 1.01. Defined Terms...................................................1
SECTION 1.02. Classification of Loans and Borrowings.........................16
SECTION 1.03. Terms Generally................................................17
SECTION 1.04. Accounting Terms; GAAP.........................................17
ARTICLE II THE CREDITS
SECTION 2.01. Commitments....................................................17
SECTION 2.02. Revolving Loans and Revolving Borrowings; Requests for
Borrowings...................................................18
SECTION 2.03. Swingline Loans................................................19
SECTION 2.04. Letters of Credit..............................................21
SECTION 2.05. Funding of Borrowings..........................................24
SECTION 2.06. Interest Elections.............................................25
SECTION 2.07. Mandatory Termination or Reduction of Commitments..............26
SECTION 2.08. Mandatory Prepayments..........................................26
SECTION 2.09. Optional Reduction of Commitments..............................27
SECTION 2.10. Repayment of Loans; Evidence of Debt...........................27
SECTION 2.11. Optional Prepayment of Loans...................................28
SECTION 2.12. Fees...........................................................28
SECTION 2.13. Interest.......................................................30
SECTION 2.14. Alternate Rate of Interest.....................................30
SECTION 2.15. Increased Costs................................................31
SECTION 2.16. Break Funding Payments.........................................32
SECTION 2.17. Taxes..........................................................33
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-Offs....34
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.................35
SECTION 2.20. Extension of Termination Date..................................36
ARTICLE III CONDITIONS
SECTION 3.01. Conditions Precedent to the Initial Extension of Credit........36
SECTION 3.02. Conditions Precedent to Each Extension of Credit...............38
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Credit Parties...........38
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ARTICLE V AFFIRMATIVE COVENANTS
SECTION 5.01. Affirmative Covenants..........................................41
ARTICLE VI NEGATIVE COVENANTS
SECTION 6.01. Negative Covenants.............................................44
ARTICLE VII FINANCIAL COVENANTS
SECTION 7.01. Interest Coverage Ratio........................................48
SECTION 7.02. Debt to Capitalization Ratio...................................48
ARTICLE VIII EVENTS OF DEFAULT
SECTION 8.01. Events of Default..............................................49
ARTICLE IX THE ADMINISTRATIVE AGENT
SECTION 9.01. The Administrative Agent.......................................52
ARTICLE X GUARANTY
SECTION 10.01. The Guaranty..................................................54
SECTION 10.02. Waivers.......................................................56
ARTICLE XI MISCELLANEOUS
SECTION 11.01. Notices.......................................................57
SECTION 11.02. Waivers; Amendments...........................................58
SECTION 11.03. Expenses; Indemnity; Damage Waiver............................59
SECTION 11.04. Successors and Assigns........................................60
SECTION 11.05. Survival......................................................63
SECTION 11.06. Counterparts; Integration; Effectiveness......................63
SECTION 11.07. Severability..................................................63
SECTION 11.08. Right of Setoff...............................................63
SECTION 11.09. Governing Law; Jurisdiction; Consent to Service of Process....64
SECTION 11.10. WAIVER OF JURY TRIAL..........................................64
SECTION 11.11. Headings......................................................65
SECTION 11.12. Confidentiality...............................................65
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ANNEXES, EXHIBITS AND SCHEDULES
ANNEX A Pricing Grid
iii
364-DAY REVOLVING CREDIT AGREEMENT, dated as of March 23, 2001 (this
"AGREEMENT"), among NISOURCE FINANCE CORP., an Indiana corporation, as Borrower
(the "BORROWER"), NISOURCE INC., a Delaware corporation ("NISOURCE"), as
Guarantor (the "GUARANTOR"), the Lead Arrangers, Arrangers, Senior Managing
Agents, Managers, and other Lenders from time to time party hereto, the
Co-Documentation Agents party hereto, CREDIT SUISSE FIRST BOSTON, as Syndication
Agent and BARCLAYS BANK PLC, as issuer of any Letters of Credit provided for
hereunder (in such capacity, the "LC BANK") and as administrative agent for the
Lenders hereunder (in such capacity, the "ADMINISTRATIVE AGENT").
WITNESSETH:
WHEREAS, the parties are willing to enter into this
364-Day Revolving
Credit Agreement on the terms and subject to the conditions herein set forth.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Alternate
Base Rate.
"ACQUISITION FACILITY" means the financing facilities
represented by that certain
364-Day Revolving Credit Agreement, dated
as of November 1, 2000, among the Borrower, the Guarantor, Old
Nisource, the co-syndication agents, documentation agent and lenders
parties thereto and Credit Suisse First Boston as administrative agent
thereunder.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"AGGREGATE COMMITMENTS" means the aggregate amount of the
Commitments of all Lenders, as in effect from time to time; provided,
that, prior to the termination and payment in full of the Terminating
Facilities and the release by the holders thereof of any collateral
security securing such facilities, the Aggregate Commitments shall be
deemed not to exceed $600,000,000, except for purposes of calculating
any Lender's Applicable Percentage.
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"ALTERNATE BASE RATE" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and
(b) the Federal Funds Effective Rate in effect on such day plus 1/2 of
1%. Any change in the Alternate Base Rate due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective from and
including the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"APPLICABLE PERCENTAGE" means, with respect to any Lender, the
percentage of the Aggregate Commitments represented by such Lender's
Commitment. If the Commitments have terminated or expired, the
Applicable Percentages shall be determined based upon the Commitments
most recently in effect, giving effect to any assignments.
"APPLICABLE RATE" means, for any day, with respect to any ABR
Loan or Eurodollar Revolving Loan, or with respect to the Facility Fees
and the Utilization Fee payable hereunder, as the case may be, the
applicable rate per annum determined pursuant to the Pricing Grid.
"ARRANGERS" shall mean each of Barclays and Credit Suisse
First Boston.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party
whose consent is required by Section 11.04), and accepted by the
Administrative Agent, in the form of Exhibit A or any other form
approved by the Administrative Agent.
"AVAILABILITY PERIOD" means the period from and including the
Effective Date to but excluding the Termination Date.
"BANK ONE" means Bank One, National Association, a national
banking association having its main office in Chicago, Illinois.
"BARCLAYS" means Barclays Bank PLC, an English banking
corporation.
"BENEFICIARY" has the meaning set forth in Section 10.01.
"BOARD" means the Board of Governors of the Federal Reserve
System of the United States of America.
"BORROWER" means NiSource Finance Corp., Inc. an Indiana
corporation.
"BORROWING" means Loans of the same Type and Class, made,
converted or continued on the same date and, in the case of Eurodollar
Loans, as to which a single Interest Period is in effect.
"BORROWING REQUEST" means a request by the Borrower for a
Revolving Borrowing in accordance with Section 2.02.
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"BUSINESS DAY" means any day that is not a Saturday, Sunday or
other day on which commercial banks in
New York City are authorized or
required by law to remain closed; provided that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also
exclude any day on which banks are not open for dealings in dollar
deposits in the London interbank market.
"CAPITAL LEASE" means, as to any Person, any lease of real or
personal property in respect of which the obligations of the lessee are
required, in accordance with GAAP, to be capitalized on the balance
sheet of such Person.
"CAPITAL STOCK" means any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests in a
Person other than a corporation (including, but not limited to, all
common stock and preferred stock and partnership, membership and joint
venture interests in a Person), and any and all warrants, rights or
options to purchase any of the foregoing.
"CASH ACCOUNT" has the meaning set forth in Section 8.01.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act, 42, U.S.C. Section 9601 et seq., as
amended.
"CHANGE OF CONTROL" means (a) any "person" or "group" within
the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934, as amended, shall become the "beneficial owner" (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended) of more than 50% of the then outstanding voting Capital Stock
of the Guarantor, (b) Continuing Directors shall cease to constitute at
least a majority of the directors constituting the Board of Directors
of the Guarantor, (c) a consolidation or merger of the Guarantor shall
occur after which the holders of the outstanding voting Capital Stock
of the Guarantor immediately prior thereto hold less than 50% of the
outstanding voting Capital Stock of the surviving entity; (d) more than
50% of the outstanding voting Capital Stock of the Guarantor shall be
transferred to an entity of which the Guarantor owns less than 50% of
the outstanding voting Capital Stock; (e) there shall occur a sale of
all or substantially all of the assets of the Guarantor; or (f) the
Borrower, NIPSCO or Columbia shall cease to be a Wholly-Owned
Subsidiary of the Guarantor (except to the extent otherwise permitted
under Section 6.01(b)).
"CHANGE IN LAW" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law,
rule or regulation or in the interpretation or application thereof by
any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender (or, for purposes of Section 2.15(b), by any
lending office of such Lender or by such Lender's holding company, if
any) with any request, guideline or directive (whether or not having
the force of law) of any Governmental Authority made or issued after
the date of this Agreement.
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"CLASS", when used in reference to any Loan or Borrowing,
refers to whether such Loan is, or the Loans comprising such Borrowing
are, Revolving Loans or Swingline Loans.
"CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
"COLUMBIA" means Columbia Energy Group, a Delaware
corporation.
"COMMITMENT" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans hereunder and to
participate in Letters of Credit issued hereunder as set forth herein,
as such commitment may be (a) reduced from time to time or terminated
pursuant to Section 2.07 or Section 2.09 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant
to Section 11.04. The initial amount of each Lender's Commitment is (x)
the amount set forth on Schedule 2.01 opposite such Lender's name; or
(y) the amount set forth in the Assignment and Acceptance pursuant to
which such Lender shall have assumed its Commitment, as applicable.
"CONSOLIDATED CAPITALIZATION" means the sum of (a)
Consolidated Debt, (b) consolidated common equity of the Guarantor and
its Consolidated Subsidiaries determined in accordance with GAAP, and
(c) the aggregate liquidation preference of preferred stocks (other
than preferred stocks subject to mandatory redemption or repurchase) of
the Guarantor and its Consolidated Subsidiaries upon involuntary
liquidation.
"CONSOLIDATED DEBT" means, at any time, the indebtedness of
the Guarantor and its Consolidated Subsidiaries that would be
classified as debt on a balance sheet of the Guarantor determined on a
consolidated basis in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the
interest expense of the Guarantor and its Consolidated Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED NET INCOME" means, for any period, the net
income of the Guarantor and its Consolidated Subsidiaries, determined
on a consolidated basis in accordance with GAAP, adjusted to exclude:
(a) any extraordinary gain or loss, (b) any gain or loss on
dispositions of capital assets, (c) the non-cash effects of any
impairment or write-down of assets and (d) up to $106,800,000 in the
aggregate of merger and restructuring charges relating to the Merger.
"CONSOLIDATED NET TANGIBLE ASSETS" means, at any time, the
total amount of assets appearing on a consolidated balance sheet of the
Guarantor and its Subsidiaries (other than Utility Subsidiaries),
determined in accordance with GAAP and prepared as of the end of the
fiscal quarter then most recently ended, less, without duplication, the
following (other than those of Utility Subsidiaries):
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(a) all current liabilities (excluding any thereof that are by
their terms extendable or renewable at the sole option of the obligor
thereon, without requiring the consent of the obligee, to a date more
than 12 months after the date of determination);
(b) all reserves for depreciation and other asset valuation
reserves (but excluding any reserves for deferred Federal income taxes,
arising from accelerated amortization or otherwise);
(c) all intangible assets, such as goodwill, trademarks, trade
names, patents and unamortized debt discount and expense, carried as an
asset on such balance sheet; and
(d) all appropriate adjustments on account of minority
interests of other Persons holding common stock of any Subsidiary of
the Guarantor.
"CONSOLIDATED SUBSIDIARY" means, on any date, each Subsidiary
of the Guarantor the accounts of which, in accordance with GAAP, would
be consolidated with those of the Guarantor in its consolidated
financial statements if such statements were prepared as of such date.
"CONTINGENT GUARANTY" means a direct or contingent liability
in respect of a Project Financing (whether incurred by assumption,
guaranty, endorsement or otherwise) that either (a) is limited to
guarantying performance of the completion of the Project that is
financed by such Project Financing or (b) is contingent upon, or the
obligation to pay or perform under which is contingent upon, the
occurrence of any event other than failure of the primary obligor to
pay upon final maturity (whether by acceleration or otherwise).
"CONTINUING DIRECTORS" means (a) all members of the board of
directors of the Guarantor who have held office continually since the
Effective Date, and (b) all members of the board of directors of the
Guarantor who were elected as directors after the Effective Date and
whose nomination for election was approved by a vote of at least 50% of
the Continuing Directors.
"CONTRACTUAL OBLIGATION" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
instrument or other undertaking to which such Person is a party or by
which it or any of its property is bound.
"CONTROL" means 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 ability to exercise voting power, by
contract or otherwise. "Controlling" and "Controlled" have meanings
correlative thereto.
"CREDIT DOCUMENTS" means (a) this Agreement, the Notes and any
Assignment and Acceptances, (b) any certificates, opinions and other
documents required to be delivered pursuant to Section 3.01, and (c)
any other documents delivered by a Credit Party pursuant to or in
connection with any one or more of the foregoing.
"CREDIT PARTY" means each of the Borrower and the Guarantor.
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"DEBT FOR BORROWED MONEY" means, as to any Person, without
duplication, (a) all obligations of such Person for borrowed money, (b)
all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, (c) all Capital Lease obligations of such Person,
and (d) all obligations of such Person under synthetic leases, tax
retention operating leases, off-balance sheet loans or other
off-balance sheet financing products that, for tax purposes, are
considered indebtedness of borrowed money of the lessee but are
classified as operating leases under GAAP.
"DEBT TO CAPITALIZATION RATIO" means, at any time, the ratio
of Consolidated Debt to Consolidated Capitalization.
"DEFAULT" means any event or condition that constitutes an
Event of Default or that, upon notice, lapse of time or both would,
unless cured or waived, become an Event of Default.
"DOLLARS" or "$" refers to lawful money of the United States
of America.
"EFFECTIVE DATE" means the date on which this Agreement has
been executed and delivered by each of the Borrower, the Guarantor, the
Syndication Agent, the Co-Documentation Agents, the initial Lenders and
Swingline Lenders, the LC Bank and the Administrative Agent .
"ENVIRONMENTAL LAWS" means any and all foreign, federal,
state, local or municipal laws (including, without limitation, common
laws), rules, orders, regulations, statutes, ordinances, codes,
decrees, judgments, awards, writs, injunctions, requirements of any
Governmental Authority or other requirements of law regulating,
relating to or imposing liability or standards of conduct concerning,
pollution, waste, industrial hygiene, occupational safety or health,
the presence, transport, manufacture, generation, use, handling,
treatment, distribution, storage, disposal or release of Hazardous
Substances, or protection of human health, plant life or animal life,
natural resources or the environment, as now or at any time hereafter
in effect.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Guarantor or any
of its Subsidiaries directly or indirectly resulting from or based upon
(a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA AFFILIATE" means any Person who, for purposes of Title
IV of ERISA, is a member of the Guarantor's controlled group, or under
common control with the
7
Guarantor, within the meaning of Section 414 of the Code and the
regulations promulgated and rulings issued thereunder.
"ERISA EVENT" means (a) a reportable event, within the meaning
of Section 4043 of ERISA, unless the 30-day notice requirement with
respect thereto has been waived by the PBGC, (b) the provision by the
administrator of any Plan of a notice of intent to terminate such Plan,
pursuant to Section 4041(a)(2) and 4041(c) of ERISA (including any such
notice with respect to a plan amendment referred to in Section 4041(e)
of ERISA), (c) the withdrawal by the Guarantor or an ERISA Affiliate
from a Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA, (d)
the failure by the Guarantor or any ERISA Affiliate to make a payment
to a Plan required under Section 302(f)(1) of ERISA, which Section
imposes a lien for failure to make required payments, (e) the adoption
of an amendment to a Plan requiring the provision of security to such
Plan, pursuant to Section 307 of ERISA, or (f) the institution by the
PBGC of proceedings to terminate a Plan, pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition which may reasonably
be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer a Plan.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that
term in Regulation D of the Board, as in effect from time to time.
"EURODOLLAR", when used in reference to any Loan or Borrowing,
refers to whether such Loan is, or the Loans comprising such Borrowing
are, bearing interest at a rate determined by reference to the LIBO
Rate.
"EURODOLLAR RATE RESERVE PERCENTAGE" of any Lender for the
Interest Period for any Eurodollar Loan means the reserve percentage
applicable during such Interest Period (or if more than one such
percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any
such percentage shall be so applicable) under regulations issued from
time to time by the Board (or any successor) for determining the
maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for such
Lender with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such Interest Period.
"EVENT OF DEFAULT" has the meaning assigned to such term in
Article VIII.
"EXCLUDED TAXES" means, with respect to the Administrative
Agent, any Lender or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income
or franchise taxes imposed on (or measured by) its net income or net
earnings by the United States of America, or by the jurisdiction under
the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its
applicable lending office is located and (b) in case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.19(d)), any withholding tax that (i) is imposed on
amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement,
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except to the extent that such Foreign Lender's assignor (if any) was
entitled, at the time of assignment, to receive additional amounts from
the Borrower with respect to such withholding tax pursuant to Section
2.17(a) or (ii) is attributable to such Foreign Lender's failure to
comply with Section 2.17 (e) when legally able to do so.
"EXPOSURE" means, with respect to any Lender at any time, such
Lender's Outstanding Loans plus such Lender's Applicable Percentage of
the aggregate LC Outstandings at such time plus such Lender's
Applicable Percentage of the aggregate Unreimbursed LC Disbursements at
such time.
"EXTENSION OF CREDIT" means (a) the making by any Lender of a
Revolving Loan, (b) the making by any Swingline Lender of any Swingline
Loan, (c) the issuance of a Letter of Credit by the LC Bank or (d) the
amendment of any Letter of Credit having the effect of extending the
stated termination date thereof, increasing the LC Outstandings, or
otherwise altering any of the material terms or conditions thereof.
"FACILITY FEE" has the meaning set forth in Section 2.12.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of
1%) of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve
Bank of
New York, or, if such rate is not so published for any day that
is a Business Day, the average (rounded upwards, if necessary, to the
next 1/100 of 1%) of the quotations for such day for such transactions
received by the Administrative Agent from three Federal funds brokers
of recognized standing selected by it.
"FOREIGN LENDER" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is
located. For purposes of this definition, the United States of America,
each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in the
United States of America consistent with those applied in the
preparation of the financial statements referred to in Section 4.01(e).
"GOVERNMENTAL AUTHORITY" means the government of the United
States of America, any other nation, or any political subdivision of
the United States of America or any other nation, whether state or
local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of
or pertaining to government and includes, in any event, an "Independent
System Operator" or any entity performing a similar function.
"GRANTING LENDER" has the meaning set forth in Section 11.04.
"GUARANTOR" means NiSource.
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"GUARANTY" means the guaranty of the Guarantor pursuant to
Article X of this Agreement.
"HAZARDOUS MATERIALS" means any asbestos; flammables; volatile
hydrocarbons; industrial solvents; explosive or radioactive materials;
hazardous wastes; toxic substances; liquefied natural gas; natural gas
liquids; synthetic gas; oil, petroleum, or related materials and any
constituents, derivatives, or byproducts thereof or additives thereto;
or any other material, substance, waste, element or compound (including
any product) regulated pursuant to any Environmental Law, including,
without limitation, substances defined as "hazardous substances,"
"hazardous materials," "contaminants," "pollutants," "hazardous
wastes," "toxic substances," "solid waste," or "extremely hazardous
substances" in (i) CERCLA, (ii) the Hazardous Materials Transportation
Act, 49 U.S.C. Section 1801 et seq., (iii) the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901 et seq., (iv) the Federal
Water Pollution Control Act, as amended, 33 U.S.C. Section 1251 et
seq., (v) the Clean Air Act, 42 U.S.C. Section 7401 et seq., (vi) the
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., (vii) the
Safe Drinking Water Act, 42 U.S.C. Section 300f et seq., or (viii)
foreign, state, local or municipal law, in each case, as may be amended
from time to time.
"INDEBTEDNESS" of any Person means (without duplication) (a)
Debt for Borrowed Money, (b) obligations to pay the deferred purchase
price of property or services, except trade accounts payable arising in
the ordinary course of business which are not overdue, (c) all
obligations, contingent or otherwise, in respect of any letters of
credit, bankers' acceptances or interest rate, currency or commodity
swap, cap or floor arrangements, (d) all indebtedness of others secured
by (or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned
or acquired by such Person, whether or not the indebtedness secured
thereby has been assumed, (e) all amounts payable in connection with
mandatory redemptions or repurchases of preferred stock, and (f)
obligations under direct or indirect guarantees in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire,
or otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to in
clauses (a) through (e) above.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INDEMNITEE" has the meaning set forth in Section 11.03.
"INDEX DEBT" means the senior unsecured long-term debt
securities of the Borrower, without third-party credit enhancement
provided by a Person other than the Guarantor.
"INFORMATION" has the meaning set forth in Section 11.12.
"INITIAL CREDIT EVENT DATE" means the date on which the
initial Loan or Borrowing is funded or the initial Letter of Credit
hereunder is issued.
"INSUFFICIENCY" means, with respect to any Plan, the amount,
if any, by which the present value of all vested and unvested accrued
benefits under such Plan exceeds the fair
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market value of assets allocable to such benefits, all determined as of
the then most recent valuation date for such Plan using actuarial
assumptions used in determining such Plan's normal cost for purposes of
Section 412(b)(2)(A) of the Code.
"INTEREST COVERAGE RATIO" means, for any period, the ratio of
(i) the sum of (a) Consolidated Net Income for such period plus (b)
income taxes deducted in determining such Consolidated Net Income plus
(c) Consolidated Interest Expense for such period to (ii) Consolidated
Interest Expense for such period.
"INTEREST ELECTION REQUEST" means a request by the Borrower to
convert or continue a Revolving Borrowing in accordance with Section
2.06.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR
Loan, the last day of each March, June, September and December, (b)
with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurodollar Borrowing with an Interest Period of more than
three months' duration, the day that is three months after the first
day of such Interest Period, (c) with respect to any Swingline Loan,
the date such Swingline Loan is required to be repaid and (d) with
respect to any Loan, the Termination Date.
"INTEREST PERIOD" means with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and
ending on the numerically corresponding day in the calendar month that
is one, two, three or six months thereafter, as the Borrower may elect;
provided that (a) if any Interest Period would end on a day other than
a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day; and (b) any Interest
Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on
which such Borrowing is made and, in the case of a Revolving Borrowing,
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"LC OUTSTANDINGS" means, for any date of determination, the
aggregate maximum amount available to be drawn under all Letters of
Credit outstanding on such date (assuming the satisfaction of all
conditions for drawing enumerated therein).
"LC RISK PARTICIPATION FEE" has the meaning set forth in
SECTION 2.12.
"LENDERS" means (a) the Persons listed on Schedule 2.01,
including any such Person identified thereon or in the signature pages
hereto as a Lead Arranger, Arranger, Senior Managing Agent or Manager,
and any other Person that shall have become a party hereto pursuant to
an Assignment and Acceptance, other than any such Person that ceases to
be a party hereto pursuant to an Assignment and Acceptance, (b) each
Swingline
11
Lender in respect of the Swingline Loans made by it and (c) if and to
the extent so provided in Section 2.04(c), the LC Bank.
"LETTER OF CREDIT" means a letter of credit issued by the LC
Bank pursuant to the terms of this Agreement, as such letter of credit
may from time to time be amended, modified or extended in accordance
with the terms of this Agreement.
"LIBO RATE" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Telerate Page 3750 (or
on any successor or substitute page of such service, or any successor
to or substitute for such service, providing rate quotations comparable
to those currently provided on such page of such service, as determined
by the Administrative Agent from time to time for purposes of providing
quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, as the
rate for dollar deposits with a maturity comparable to such Interest
Period. In the event that such rate is not available at such time for
any reason, then the "LIBO RATE" with respect to such Eurodollar
Borrowing for such Interest Period shall be the rate at which Dollar
deposits of $5,000,000 and for a maturity comparable to such Interest
Period are offered by the principal London office of the Administrative
Agent in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIEN" has the meaning set forth in Section 6.01(a).
"LOANS" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"MARGIN Stock" means margin stock within the meaning of
Regulations U and X issued by the Board.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, assets, operations, condition (financial or
otherwise) or prospects of the Guarantor and its Subsidiaries taken as
a whole; (b) the validity or enforceability of any of Credit Documents
or the rights, remedies and benefits available to the Administrative
Agent and the Lenders thereunder; or (c) the ability of the Borrower or
the Guarantor to consummate the Transactions.
"MATERIAL SUBSIDIARY" means at any time the Borrower, NIPSCO,
Columbia, and each Subsidiary of the Guarantor, other than the
Borrower, NIPSCO and Columbia, in respect of which:
(a) the Guarantor's and its other Subsidiaries' investments in
and advances to such Subsidiary and its Subsidiaries exceed 10% of the
consolidated total assets of the Guarantor and its Subsidiaries taken
as a whole, as of the end of the most recent fiscal year; or
12
(b) the Guarantor's and its other Subsidiaries' proportionate
interest in the total assets (after intercompany eliminations) of such
Subsidiary and its Subsidiaries exceeds 10% of the consolidated total
assets of the Guarantor and its Subsidiaries as of the end of the most
recent fiscal year; or
(c) the Guarantor's and its other Subsidiaries' equity in the
income from continuing operations before income taxes, extraordinary
items and cumulative effect of a change in accounting principles of
such Subsidiary and its Subsidiaries exceeds 10% of the consolidated
income of the Guarantor and its Subsidiaries for the most recent fiscal
year.
"MERGER" means, collectively: (a) the merger of Parent
Acquisition Corp., an Indiana corporation, with and into Old NiSource,
(b) the merger of Company Acquisition Corp., a Delaware corporation,
with and into Columbia and (c) the merger of Old NiSource into New
NiSource, which transactions were consummated on November 1, 2000.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, which (a) is maintained for
employees of the Borrower or an ERISA Affiliate and at least one Person
other than the Borrower and its ERISA Affiliates, or (b) was so
maintained and in respect of which the Borrower or an ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
that such plan has been or were to be terminated.
"NIPSCO" means Northern Indiana Public Service Company, an
Indiana corporation.
"NON-RECOURSE DEBT" means Indebtedness of the Guarantor or any
of its Subsidiaries which is incurred in connection with the
acquisition, construction, sale, transfer or other disposition of
specific assets, to the extent recourse, whether contractual or as a
matter of law, for non-payment of such Indebtedness is limited (a) to
such assets or (b) if such assets are (or are to be) held by a
Subsidiary formed solely for such purpose, to such Subsidiary or the
Capital Stock of such Subsidiary.
"OBLIGATIONS" means all amounts, direct or indirect,
contingent or absolute, of every type or description, and at any time
existing and whenever incurred (including, without limitation, after
the commencement of any bankruptcy proceeding), owing to the
Administrative Agent or any Lender pursuant to the terms of this
Agreement or any other Credit Document.
"OLD NISOURCE" means NiSource Inc., an Indiana corporation and
predecessor by merger to NiSource.
13
"OTHER CREDIT AGREEMENT" means the 3-Year Revolving Credit
Agreement, dated as of the date hereof, among the Borrower, the
Guarantor, the lead arrangers, arrangers, senior managing agents,
managers, co-documentation agents and other lenders from time to time
parties thereto, Credit Suisse First Boston, as syndication agent and
Barclays, as issuer of any letters of credit provided for thereunder
and as administrative agent thereunder.
"OTHER TAXES" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar levies arising from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to,
this Agreement.
"OUTSTANDING LOANS" means, as to any Lender at any time, the
aggregate principal amount of all Loans made or maintained by such
Lender then outstanding; provided, however, that for purposes of any
calculation of the Outstanding Loans, any then outstanding Swingline
Loans shall be deemed allocated among the Lenders (other than the
Swingline Lenders in their respective capacities as such) in accordance
with their respective Applicable Percentages.
"PARTICIPANT" has the meaning set forth in Section 11.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar
functions.
"PERSON" means any natural person, corporation, limited
liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of
which the Borrower or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"PNC" means PNC Bank, National Association.
"PRICING GRID" means the pricing grid attached hereto as Annex
A.
"PRIME RATE" means the rate of interest per annum publicly
announced from time to time by Barclays as its prime rate in effect at
its principal office in
New York City; each change in the Prime Rate
shall be effective from and including the date such change is publicly
announced as being effective.
"PROJECT" means an energy or power generation, transmission or
distribution facility (including, without limitation, a thermal energy
generation, transmission or distribution facility and an electric power
generation, transmission or distribution facility (including, without
limitation, a cogeneration facility)), a gas production, transportation
or distribution facility, or a minerals extraction, processing or
distribution facility, together with (a) all related electric power
transmission, fuel supply and fuel
14
transportation facilities and power supply, thermal energy supply, gas
supply, minerals supply and fuel contracts, (b) other facilities,
services or goods that are ancillary, incidental, necessary or
reasonably related to the marketing, development, construction,
management, servicing, ownership or operation of such facility, (c)
contractual arrangements with customers, suppliers and contractors in
respect of such facility, and (d) any infrastructure facility related
to such facility, including, without limitation, for the treatment or
management of waste water or the treatment or remediation of waste,
pollution or potential pollutants.
"PROJECT FINANCING" means Indebtedness incurred by a Project
Financing Subsidiary to finance (a) the development and operation of
the Project such Project Financing Subsidiary was formed to develop or
(b) activities incidental thereto; provided that such Indebtedness does
not include recourse to the Guarantor or any of its other Subsidiaries
other than (x) recourse to the Capital Stock in any such Project
Financing Subsidiary, and (y) recourse pursuant to a Contingent
Guaranty.
"PROJECT FINANCING SUBSIDIARY" means any Subsidiary (a) that
(i) is not a Material Subsidiary, and (ii) whose principal purpose is
to develop a Project and activities incidental thereto (including,
without limitation, the financing and operation of such Project), or to
become a partner, member or other equity participant in a partnership,
limited liability company or other entity having such a principal
purpose, and (b) substantially all the assets of which are limited to
the assets relating to the Project being developed or Capital Stock in
such partnership, limited liability company or other entity (and
substantially all of the assets of any such partnership, limited
liability company or other entity are limited to the assets relating to
such Project); provided that such Subsidiary incurs no Indebtedness
other than in respect of a Project Financing.
"REGISTER" has the meaning set forth in Section 11.04.
"RELATED PARTIES" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers,
employees, agents and advisors of such Person and such Person's
Affiliates.
"REQUEST FOR ISSUANCE" has the meaning set forth in Section
2.04.
"REQUIRED LENDERS" means Lenders having at least 51% in
aggregate amount of the Commitments, or if the Commitments shall have
been terminated, of the Total Outstanding Principal.
"RESPONSIBLE OFFICER" of a Credit Party means any of (a) the
President, the chief financial officer, the chief accounting officer
and the Treasurer of such Credit Party and (b) any other officer of
such Credit Party whose responsibilities include monitoring compliance
with this Agreement.
"REVOLVING LOAN" means a Loan made pursuant to Section 2.02.
"S&P" means Standard & Poor's Ratings Services, a division of
The McGraw Hill Companies, Inc.
15
"SPFV" has the meaning set forth in Section 11.04.
"SUBSIDIARY" means, with respect to any Person, any
corporation or other entity of which at least a majority of the
outstanding shares of stock or other ownership interests having by the
terms thereof ordinary voting power to elect a majority of the board of
directors or other managers of such corporation or other entity
(irrespective of whether or not at the time stock or other equity
interests of any other class or classes of such corporation or other
entity shall have or might have voting power by reason of the happening
of any contingency) is at the time directly or indirectly owned or
controlled by such Person or one or more of the Subsidiaries of such
Person.
"SUBSTANTIAL SUBSIDIARIES" has the meaning set forth in
Section 8.01.
"SWINGLINE COMMITMENT" means, for any Swingline Lender, the
amount set forth as such Swingline Lender's Swingline Commitment on
Schedule 2.01 hereto.
"SWINGLINE FACILITY AMOUNT" has the meaning specified in
Section 2.01(b).
"SWINGLINE LOAN" means a loan made by a Swingline Lender
pursuant to the terms of this Agreement.
"SWINGLINE LENDER" means Barclays, PNC and Bank One.
"SWINGLINE RATE" means: (a) in the case of a Swingline Loan in
an original principal amount of $100,000 or more, a fixed rate of
interest equal to the sum of (i) the relevant Swingline Lender's cost
of funds as determined by such Swingline Lender in its sole discretion
with reference to its funding sources on the date such Swingline Loan
is made for a term equal to the period such Swingline Loan is to be
outstanding plus (ii) the Applicable Rate then in effect for Eurodollar
Revolving Loans or (b) in the case of a Swingline Loan in an original
principal amount of less than $100,000, a floating rate of interest
equal to the sum of (i) the Alternate Base Rate plus (ii) the
Applicable Rate then in effect for Alternate Base Rate Loans, in each
case, as notified to the Borrower at the time such Swingline Loan is
made. Any Swingline Rate determined in accordance with clause (a),
above, shall be adjusted in each case from time to time to give effect
to all applicable reserve requirements, including, without limitation,
special, emergency or supplemental reserves.
"SWINGLINE REQUEST" means a request by the Borrower for a
Swingline Lender to make a Swingline Loan, which shall contain the
information in respect of such requested Swingline Loan specified in
Section 2.03(b) and shall be delivered to such Swingline Lender and the
Administrative Agent in writing, or by telephone, immediately confirmed
in writing.
"SYNDICATION AGENT" means Credit Suisse First Boston, in its
capacity as syndication agent for the Lenders hereunder.
16
"TAXES" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority, including any interest, penalties and additions
to tax imposed thereon or in connection therewith.
"TERMINATION DATE" means the earliest of (a) March 22, 2002
and (b) the date upon which the Commitments are terminated pursuant to
Section 8.1 or otherwise.
"TOTAL OUTSTANDING PRINCIPAL" means the aggregate amount of
the Outstanding Loans of all Lenders plus the aggregate LC Outstandings
plus the aggregate Unreimbursed LC Disbursements.
"TERMINATING FACILITIES" means financing facilities described
on Schedule 3.01 hereto.
"TRANSACTIONS" means the execution, delivery and performance
by the Borrower of this Agreement and the Borrowing of Loans and
issuances of Letters of Credit hereunder.
"TYPE", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans
comprising such Borrowing, is determined by reference to the LIBO Rate
or the Alternate Base Rate.
"UNREIMBURSED LC DISBURSEMENT" means the unpaid obligation
(or, if the context so requires, the amount of such obligation) of the
Borrower to reimburse the LC Bank for a payment made by the LC Bank
under a Letter of Credit, but shall not include any portion of such
obligation that has been repaid with the proceeds of, or converted to,
Loans hereunder.
"UTILITY SUBSIDIARY" means a Subsidiary of the Guarantor that
is subject to regulation by a Governmental Authority (federal, state or
otherwise) having authority to regulate utilities.
"UTILIZATION FEE" has the meaning set forth in Section 2.12.
"WHOLLY-OWNED SUBSIDIARY" shall mean, with respect to any
Person, any corporation or other entity of which all of the outstanding
shares of stock or other ownership interests in which, other than
directors' qualifying shares (or the equivalent thereof), are at the
time directly or indirectly owned or controlled by such Person or one
or more of the Subsidiaries of such Person.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Sections 4201, 4203 and 4205 of
ERISA.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"REVOLVING LOAN") or by Type (e.g., a "EURODOLLAR LOAN") or by Class and Type
(e.g., a "EURODOLLAR REVOLVING LOAN"). Borrowings also may be classified and
referred to by Class (e.g., a "REVOLVING BORROWING") or by Type (e.g., a
"EURODOLLAR BORROWING") or by Class and Type (e.g., a "EURODOLLAR REVOLVING
BORROWING").
17
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "or" shall
not be exclusive. The word "will" shall be construed to have the same meaning
and effect as the word "shall". Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights. The terms "knowledge of", "awareness of" and "receipt of notice
of" in relation to a Credit Party, and other similar expressions, mean knowledge
of, awareness of, or receipt of notice by, a Responsible Officer of such Credit
Party.
SECTION 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the Effective Date in GAAP or in the application thereof
on the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS.
(a) Subject to the terms and conditions set forth herein, each Lender
agrees to make Revolving Loans to the Borrower from time to time during the
Availability Period in an aggregate principal amount that will not result in (i)
such Lender's Exposure exceeding such Lender's Commitment or (ii) the sum of the
Exposures of all of the Lenders exceeding the Aggregate Commitments.
18
(b) Subject to the terms and conditions set forth herein, each
Swingline Lender agrees to make Swingline Loans to the Borrower from time to
time during the Availability Period in an aggregate principal amount that will
not result in (i) the sum of the aggregate principal amount of all Swingline
Loans made by such Swingline Lender then outstanding under this Agreement and
the aggregate principal amount of all "Swingline Loans" made by such Swingline
Lender then outstanding under (and as defined in) the Other Credit Agreement
exceeding such Swingline Lender's Swingline Commitment, (ii) the sum of the
aggregate principal amount of all Swingline Loans then outstanding under this
Agreement and aggregate principal amount of all "Swingline Loans" then
outstanding under (and as defined in) the Other Credit Agreement exceeding
$150,000,000 (the "SWINGLINE FACILITY AMOUNT"), (iii) any Lender's Exposure
exceeding such Lender's Commitment or (iii) the sum of the Exposures of all of
the Lenders exceeding the Aggregate Commitments.
(c) Subject to the terms and conditions set forth herein, the LC Bank
agrees to issue Letters of Credit and each Lender agrees to participate in such
Letters of Credit, in each case as set forth herein, from time to time during
the Availability Period in an aggregate stated amount that will not result in
(i) the sum of the aggregate LC Outstandings under this Agreement and the
aggregate "LC Outstandings" under (and as defined in) the Other Credit Agreement
exceeding $150,000,000, (ii) any Lender's Exposure exceeding such Lender's
Commitment or (iii) the sum of the Exposures of all of the Lenders exceeding the
Aggregate Commitments.
(d) Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans
and Swingline Loans and request the issuance of Letters of Credit.
SECTION 2.02. REVOLVING LOANS AND REVOLVING BORROWINGS; REQUESTS FOR
BORROWINGS.
(a) Each Revolving Loan shall be made as part of a Borrowing consisting
of Revolving Loans made by the Lenders ratably in accordance with their
respective Commitments. The failure of any Lender to make any Loan required to
be made by it shall not relieve any other Lender of its obligations hereunder;
provided that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
in accordance herewith. Each Lender at its option may make any Eurodollar Loan
by causing any domestic or foreign branch or Affiliate of such Lender to make
such Loan; provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms of
this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $5,000,000 and not less than $25,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $100,000; provided that an ABR Revolving
Borrowing may be to an aggregate amount that is equal to the entire unused
balance of the Aggregate Commitments. Borrowings of more than one Type and
19
Class may be outstanding at the same time; provided that there shall not at any
time be more than a total of ten Eurodollar Revolving Borrowings outstanding
under this Agreement and the Other Credit Agreement.
(d) To request a Revolving Borrowing, the Borrower shall notify the
Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m.,
New York City time, three
Business Days before the date of the proposed Borrowing or (b) in the case of an
ABR Borrowing, not later than 11:00 a.m.,
New York City time, on the date of the
proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period".
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the Borrower shall
be deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request, or to elect to convert or continue, any
Eurodollar Borrowing if the Interest Period requested with respect thereto would
end after the Termination Date.
SECTION 2.03. SWINGLINE LOANS.
(a) Each Swingline Loan to be made by a Swingline Lender shall be made
on notice given by the Borrower to such Swingline Lender and the Administrative
Agent via fax transmission in accordance with Section 11.01 hereof not later
than 11:00 A.M. (
New York City time) on the borrowing date of the proposed
Swingline Loan (which shall be a Business Day) or such later time as such
Swingline Lender and the Administrative Agent may agree. Each such notice (a
"SWINGLINE REQUEST") shall specify the requested borrowing date of such
Swingline Loan, the amount thereof and the maturity date thereof (which shall be
a Business Day not later than five days from the date such Swingline Loan is to
be made). Upon receipt of any Swingline Request, the relevant Swingline Lender
shall give to the Administrative Agent prompt notice thereof by fax
transmission, and shall notify the Borrower and the Administrative Agent of the
20
Swingline Rate to be applicable thereto. Such Swingline Lender shall, before
2:00 P.M. (
New York City time) on the borrowing date of such Swingline Loan,
make such Swingline Loan available to the Administrative Agent, in same day
funds, and, after the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the Borrower to an
account within the United States of America specified in the relevant Swingline
Request or, if not so specified, in accordance with Section 2.05.
(b) No Swingline Loan shall be used for the purpose of funding the
repayment or prepayment of principal of any other Swingline Loan. Each Swingline
Loan shall bear interest at the Swingline Rate and shall mature on the first to
occur of: (i) the date specified in the relevant Swingline Request, (ii) the
date that is five days following the date such Swingline Loan was made and (iii)
the Termination Date. At no time shall more than a total of five Swingline Loans
be outstanding under this Agreement and the Other Credit Agreement.
(c) At any time upon written demand by a Swingline Lender, with a copy
of such demand to the Administrative Agent, and automatically upon the
occurrence of an Event of Default, each other Lender shall purchase from such
Swingline Lender, and such Swingline Lender shall sell and assign to each such
other Lender, such other Lender's pro rata share (based on its Commitment
Percentage) of the Swingline Loans of such Swingline Lender outstanding as of
the date of such demand or occurrence, as the case may be, by making available
to the Administrative Agent for the account of such Swingline Lender an amount
in same day funds equal to the portion of the principal amount of each
outstanding Swingline Loan to be purchased by such Lender; provided, however,
that no such Lender shall be required to purchase its pro rata share of any
Swingline Loans from any Swingline Lender if the aggregate principal amount of
Swingline Loans to be purchased by all Lenders is less than $100,000. The
Borrower hereby agrees to each such sale and assignment. Each Lender agrees to
purchase its pro rata share (based on its Commitment Percentage) of each
outstanding Swingline Loan on (i) the Business Day on which demand therefor is
made by the relevant Swingline Lender, provided, that, notice of such demand is
received by such Lender not later than 11:00 A.M. (
New York City time) on such
Business Day, (ii) the first Business Day next succeeding such demand, if notice
of such demand is received after such time or (iii) the first Business Day next
succeeding the occurrence of such Event of Default. Upon any such assignment by
a Swingline Lender to any other Lender of a portion of any Swingline Loan, such
Swingline Lender represents and warrants to such other Lender that such
Swingline Lender is the legal and beneficial owner of the interest being
assigned by it, but makes no other representation or warranty and assumes no
responsibility with respect to such Swingline Loan, the Financing Documents or
the Borrower. If and to the extent that any Lender shall not have so made the
amount of such Swing Line Loan or portion thereof available to the
Administrative Agent for the account of the relevant Swingline Lender, such
Lender agrees to pay to such Swingline Lender forthwith on demand such amount
together with interest thereon for each day from the date of demand by such
Swingline Lender until the date such amount is paid to such Swingline Lender, at
the Federal Funds Effective Rate. If such Lender shall pay such amount to such
Swingline Lender on any Business Day, such amount so paid in respect of
principal shall constitute an ABR Revolving Loan made by such Lender on such
Business Day for all purposes of this Agreement, and the outstanding principal
amount of the relevant Swingline Loan(s) shall be reduced accordingly by such
amount on such Business Day. The obligation of each other Lender to purchase its
pro rata share of any Swingline
21
Lender's Swingline Loans in accordance with this subsection shall be absolute
and unconditional, notwithstanding the occurrence of any circumstances,
including without limitation any Event of Default or any setoff, deduction or
other defense asserted by the Borrower or any other Person, except that any
Lender shall have the right to bring suit against a Swingline Lender, and such
Swingline Lender shall be liable to such Lender, to the extent of any direct, as
opposed to consequential, damages suffered by such Lender which such Lender
proves were caused by such Swingline Lender's wilful misconduct or gross
negligence.
SECTION 2.04. LETTERS OF CREDIT
(a) LC Bank. Subject to the terms and conditions hereof, the Borrower
may from time to time request Barclays, as LC Bank, to issue one or more Letters
of Credit hereunder. Any such request by the Borrower shall be notified to the
Administrative Agent at least five Business Days prior to the date upon which
the Borrower proposes that the LC Bank issue such Letter of Credit. At no time
shall (i) the aggregate LC Outstandings exceed the sum of the Commitments or
(ii) the sum of the aggregate LC Outstandings under this Agreement and the
aggregate "LC Outstandings " under (and as defined in) the Other Credit
Agreement exceed $150,000,000.
(b) Letters of Credit. Each Letter of Credit shall be issued (or the
stated maturity thereof extended or terms thereof modified or amended) on not
less than five Business Days' prior written notice thereof to the Administrative
Agent (which shall promptly distribute copies thereof to the Lenders) and the LC
Bank. Each such notice (a "REQUEST FOR ISSUANCE") shall specify (i) the date
(which shall be a Business Day) of issuance of such Letter of Credit (or the
date of effectiveness of such extension, modification or amendment) and the
stated expiry date thereof (which shall be not later than the Termination Date),
(ii) the proposed stated amount of such Letter of Credit and (iii) such other
information as shall demonstrate compliance of such Letter of Credit with the
requirements specified therefor in this Agreement. Each Request for Issuance
shall be irrevocable unless modified or rescinded by the Borrower not less than
two days prior to the proposed date of issuance (or effectiveness) specified
therein. If the LC Bank shall have approved the form of such Letter of Credit
(or such extension, modification or amendment thereof), the LC Bank shall not
later than 11:00 A.M. (
New York City time) on the proposed date specified in
such Request for Issuance, and upon fulfillment of the applicable conditions
precedent and the other requirements set forth herein and as otherwise agreed to
between the LC Bank and the Borrower, issue (or extend, amend or modify) such
Letter of Credit and provide notice and a copy thereof to the Administrative
Agent. The Administrative Agent shall furnish (x) to each Lender, a copy of such
notice and (y) to each Lender that may so request, a copy of such Letter of
Credit.
(c) Reimbursement on Demand. Subject to the provisions of Section
2.04(d) hereof, the Borrower hereby agrees to pay (whether with the proceeds of
Loans made pursuant to this Agreement or otherwise) to the LC Bank on demand (i)
on and after each date on which the LC Bank shall pay any amount under any
Letter of Credit a sum equal to such amount so paid (which sum shall constitute
a demand loan from the LC Bank to the Borrower from the date of such payment by
the LC Bank until so paid by the Borrower), plus (ii) interest on any amount
remaining unpaid by the Borrower to the LC Bank under clause (i), above, from
the date such
22
amount becomes payable on demand until payment in full, at a rate per annum
which is equal to 2% plus the then applicable Alternate Base Rate until paid in
full.
(d) Loans for Unreimbursed LC Disbursements. If the LC Bank shall make
any payment under any Letter of Credit and if the conditions precedent set forth
in Section 3.02 of this Agreement have been satisfied as of the date of such
honor, then, each Lender's payment made to the LC Bank pursuant to paragraph (e)
of this Section 2.04 in respect of such Unreimbursed LC Disbursement shall be
deemed to constitute an ABR Loan made for the account of the Borrower by such
Lender. Each such ABR Loan shall have an Interest Period ending on (i) the first
March 31, June 30, September 30 or December 31 to occur following the date such
ABR Loan is made, or (ii) if earlier, the Termination Date.
(e) Participation; Reimbursement of LC Bank.
(i) Upon the issuance of any Letter of Credit by the LC Bank,
the LC Bank hereby sells and transfers to each Lender, and each Lender
hereby acquires from the LC Bank, an undivided interest and
participation to the extent of such Lender's Applicable Percentage in
and to such Letter of Credit, including the obligations of the LC Bank
under and in respect thereof and the Borrower's reimbursement and other
obligations in respect thereof, whether now existing or hereafter
arising.
(ii) If the LC Bank shall not have been reimbursed in full for
any payment made by the LC Bank under any Letter of Credit on the date
of such payment, the LC Bank shall promptly notify the Administrative
Agent and the Administrative Agent shall promptly notify each Lender of
such non-reimbursement and the amount thereof. Upon receipt of such
notice from the Administrative Agent, each Lender shall pay to the
Administrative Agent for the account of the LC Bank an amount equal to
such Lender's Applicable Percentage of such Unreimbursed LC
Disbursement, plus interest on such amount at a rate per annum equal to
the Federal Funds Rate from the date of such payment by the LC Bank to
the date of payment to the LC Bank by such Lender. All such payments by
each Lender shall be made in United States dollars and in same day
funds not later than 3:00 P.M. (
New York City time) on the later to
occur of (A) the Business Day immediately following the date of such
payment by the LC Bank and (B) the Business Day on which such Lender
shall have received notice of such non-reimbursement; provided,
however, that if such notice is received by such Lender later than
11:00 A.M. (New York City time) on such Business Day, such payment
shall be payable on the next Business Day. Each Lender agrees that each
such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. If a Lender shall have paid to the LC Bank its
ratable portion of any Unreimbursed LC Disbursement, together with all
interest thereon required by the second sentence of this subparagraph
(ii), such Lender shall be entitled to receive its ratable share of all
interest paid by the Borrower in respect of such Unreimbursed LC
Disbursement. If such Lender shall have made such payment to the LC
Bank, but without all such interest thereon required by the second
sentence of this subparagraph (ii), such Lender shall be entitled to
receive its ratable share of the interest paid by the Borrower in
respect of such Unreimbursed LC Disbursement only from the date it
shall have paid all interest required by the second sentence of this
subparagraph (ii).
23
(iii) The failure of any Lender to make any payment to the LC
Bank in accordance with subparagraph (ii) above, shall not relieve any
other Lender of its obligation to make payment, but neither the LC Bank
nor any Lender shall be responsible for the failure of any other Lender
to make such payment. If any Lender shall fail to make any payment to
the LC Bank in accordance with subparagraph (ii) above, then such
Lender shall pay to the LC Bank forthwith on demand such corresponding
amount together with interest thereon, for each day until the date such
amount is repaid to the LC Bank at the Federal Funds Rate. Nothing
herein shall in any way limit, waive or otherwise reduce any claims
that any party hereto may have against any non-performing Lender.
(iv) If any Lender shall fail to make any payment to the LC
Bank in accordance with subparagraph (ii), above, then, in addition to
other rights and remedies which the LC Bank may have, the
Administrative Agent is hereby authorized, at the request of the LC
Bank, to withhold and to apply to the payment of such amounts owing by
such Lender to the LC Bank and any related interest, that portion of
any payment received by the Administrative Agent that would otherwise
be payable to such Lender. In furtherance of the foregoing, if any
Lender shall fail to make any payment to the LC Bank in accordance with
subparagraph (ii), above, and such failure shall continue for five
Business Days following written notice of such failure from the LC Bank
to such Lender, the LC Bank may acquire, or transfer to a third party
in exchange for the sum or sums due from such Lender, such Lender's
interest in the related Unreimbursed LC Disbursement and all other
rights of such Lender hereunder in respect thereof, without, however,
relieving such Lender from any liability for damages, costs and
expenses suffered by the LC Bank as a result of such failure, and prior
to such transfer, the LC Bank shall be deemed, for purposes of Section
2.18 and Article VIII hereof, to be a Lender hereunder owed a Loan in
an amount equal to the outstanding principal amount due and payable by
such Lender to the Administrative Agent for the account of such LC Bank
pursuant to subparagraph (ii), above. The purchaser of any such
interest shall be deemed to have acquired an interest senior to the
interest of such Lender and shall be entitled to receive all subsequent
payments which the LC Bank or the Administrative Agent would otherwise
have made hereunder to such Lender in respect of such interest.
(f) Obligations Absolute. The payment obligations of each Lender under
Section 2.04(e) and of the Borrower under Section 2.04(c) of this Agreement in
respect of any payment under any Letter of Credit and any Loan made under
Section 2.04(d) shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of any Credit
Document or any other agreement or instrument relating thereto or to
such Letter of Credit;
(ii) any amendment or waiver of, or any consent to departure
from, all or any of the Credit Documents;
(iii) the existence of any claim, set-off, defense or other
right which the Borrower may have at any time against any beneficiary,
or any transferee, of such Letter
24
of Credit (or any Persons for whom any such beneficiary or any such
transferee may be acting), the LC Bank, or any other Person, whether in
connection with this Agreement, the transactions contemplated herein or
by such Letter of Credit, or any unrelated transaction;
(iv) any statement or any other document presented under such
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(v) payment in good faith by the LC Bank under the Letter of
Credit issued by the LC Bank against presentation of a draft or
certificate which does not comply with the terms of such Letter of
Credit; or
(vi) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing.
(g) Liability of LC Bank and the Lenders. The Borrower assumes all
risks of the acts and omissions of any beneficiary or transferee of any Letter
of Credit. Neither the LC Bank, the Lenders nor any of their respective
officers, directors, employees, agents or Affiliates shall be liable or
responsible for (i) the use that may be made of such Letter of Credit or any
acts or omissions of any beneficiary or transferee thereof in connection
therewith; (ii) the validity, sufficiency or genuineness of documents, or of any
endorsement thereon, even if such documents should prove to be in any or all
respects invalid, insufficient, fraudulent or forged; (iii) payment by the LC
Bank against presentation of documents that do not comply with the terms of such
Letter of Credit, including failure of any documents to bear any reference or
adequate reference to such Letter of Credit; or (iv) any other circumstances
whatsoever in making or failing to make payment under such Letter of Credit,
except that the Borrower or any Lender shall have the right to bring suit
against the LC Bank, and the LC Bank shall be liable to the Borrower and any
Lender, to the extent of any direct, as opposed to consequential, damages
suffered by the Borrower or such Lender which the Borrower or such Lender proves
were caused by the LC Bank's wilful misconduct or gross negligence, including
the LC Bank's wilful or grossly negligent failure to make timely payment under
such Letter of Credit following the presentation to it by the beneficiary
thereof of a draft and accompanying certificate(s) which strictly comply with
the terms and conditions of such Letter of Credit. In furtherance and not in
limitation of the foregoing, the LC Bank may accept sight drafts and
accompanying certificates presented under the Letter of Credit issued by the LC
Bank that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary.
Notwithstanding the foregoing, no Lender shall be obligated to indemnify the
Borrower for damages caused by the LC Bank's wilful misconduct or gross
negligence, and the obligation of the Borrower to reimburse the Lenders
hereunder shall be absolute and unconditional, notwithstanding the gross
negligence or wilful misconduct of the LC Bank.
SECTION 2.05. FUNDING OF BORROWINGS.
(a) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by 3:00
p.m., New York City time, to the account of the Administrative Agent most
recently designated by it for such purpose by
25
notice to the Lenders. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received, in like funds, to
an account established and maintained by the Borrower at the Administrative
Agent's office in New York City.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed time of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the Federal Funds Effective Rate or (ii) in the
case of the Borrower, the interest rate applicable to ABR Loans. If such Lender
pays such amount to the Administrative Agent, then such amount shall constitute
such Lender's Loan included in such Borrowing.
SECTION 2.06. INTEREST ELECTIONS.
(a) Each Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different Type
or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may
elect Interest Periods therefor, all as provided in this Section. The Borrower
may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.02 if the Borrower were
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
26
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request
with respect to a Eurodollar Borrowing prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein, at
the end of such Interest Period such Borrowing shall be converted to an ABR
Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Borrower, then, so long as an Event of
Default is continuing (i) no outstanding Borrowing may be converted to or
continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.07. MANDATORY TERMINATION OR REDUCTION OF COMMITMENTS.
(a) Unless previously terminated, the Commitments shall terminate on
the Termination Date.
SECTION 2.08. MANDATORY PREPAYMENTS.
(a) If at any time the Total Outstanding Principal exceeds the
Aggregate Commitments then in effect for any reason whatsoever (including,
without limitation, as a result of any reduction in the Aggregate Commitments
pursuant to Section 2.09), the Borrower shall prepay Loans in such aggregate
amount (together with accrued interest thereon to the extent required by Section
2.13) as shall be necessary so that, after giving effect to such prepayment, the
Total Outstanding Principal does not exceed the Aggregate Commitments.
(b) Each prepayment of Loans pursuant to this Section 2.08 shall be
accompanied by the Borrower's payment of any amounts payable under Section 2.16
in connection with such prepayment. Prepayments of Revolving Loans shall be
applied ratably to the Loans so prepaid.
27
SECTION 2.09. OPTIONAL REDUCTION OF COMMITMENTS.
(a) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $5,000,000 and not less
than $25,000,000 and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.11, the Total Outstanding Principal would exceed the
Aggregate Commitments thereafter in effect.
(b) The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under Section 2.09(a) at least three
Business Days prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly following
receipt of any notice, the Administrative Agent shall advise the Lenders of the
contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Commitments
delivered by the Borrower may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be
revoked by the Borrower (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied. Any
termination or reduction of the Commitments shall be permanent.
(c) Each reduction of the Commitments pursuant to this Section 2.09
shall be made ratably among the Lenders in accordance with their respective
Commitments immediately preceding such reduction.
SECTION 2.10. REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent (i) for the account of each Lender the then unpaid
principal amount of each Revolving Loan on the Termination Date and (ii) for the
account of the relevant Swingline Lender the then unpaid principal amount of
each Swingline Loan on the maturity date therefor as determined pursuant to
Section 2.03.
(b) Each Lender (including each Swingline 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 (including
each Swingline Loan) made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders (including the Swingline Lenders)
and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain
28
such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this
Agreement.
(e) Any Lender (including any Swingline Lender) may request that Loans
made by it be evidenced by a promissory note. In such event, the Borrower shall
prepare, execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 11.04) be
represented by one or more promissory notes in such form payable to the order of
the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
SECTION 2.11. OPTIONAL PREPAYMENT OF LOANS.
(a) The Borrower shall have the right at any time and from time to time
to prepay any Borrowing (including any Swingline Borrowing) in whole or in part,
subject to prior notice in accordance with paragraph (b) of this Section.
(b) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Borrowing, not later than 11:00 a.m., New York City
time, on the date of prepayment . Each such notice shall be irrevocable and
shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given
in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.09, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.09. Promptly
following receipt of any such notice relating to a Borrowing, the Administrative
Agent shall advise the Lenders of the contents thereof. Each partial prepayment
of any Revolving Borrowing shall be in an amount that would be permitted in the
case of an advance of a Revolving Borrowing of the same Type as provided in
Section 2.02, and each partial prepayment of a Swingline Borrowing shall be in
an amount not less than $100,000 or any integral multiple thereof, it being
understood that the foregoing minimums shall not apply to the prepayment in
whole of the outstanding Revolving Loans of all Lenders or to the prepayment in
whole of the outstanding Swingline Loans of any Swingline Lender. Each
prepayment of a Revolving Borrowing shall be applied ratably to the Loans
included in the prepaid Revolving Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.13 and by any amounts
payable under Section 2.16 in connection with such prepayment.
SECTION 2.12. FEES.
(a) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a facility fee (each a "FACILITY FEE"), which shall
accrue at the Applicable Rate on the daily amount of the Commitment of such
Lender (whether used or unused) during the period from and including the
Effective Date to but excluding the date on which such Commitment
29
terminates; provided that, if such Lender continues to have any Outstanding
Loans after its Commitment terminates, then such Facility Fee shall continue to
accrue on the daily amount of such Lender's Outstanding Loans from and including
the date on which its Commitment terminates to but excluding the date on which
such Lender ceases to have any Outstanding Loans. Accrued Facility Fees shall be
payable in arrears on the last day of March, June, September and December of
each year and on the date on which the Commitments terminate, commencing on the
first such date to occur after the Effective Date; provided that any Facility
Fees accruing after the date on which the Commitments terminate shall be payable
on demand. All Facility Fees shall be computed on the basis of a year of 360
days and shall be payable for the actual number of days elapsed (including the
first day but excluding the last day).
(b) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a letter of credit risk participation fee (each a "LC
RISK PARTICIPATION FEE"), which shall accrue at the Applicable Rate on the
average daily amount of the LC Outstandings during the period from and including
the Effective Date to but excluding the Termination Date or such later date as
on which there shall cease to be any LC Outstandings. Accrued LC Risk
Participation Fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the Commitments
terminate, commencing on the first such date to occur after the Effective Date;
provided that any LC Risk Participation Fees accruing after the date on which
the Commitments terminate shall be payable on demand. All LC Risk Participation
Fees shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding the
last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its own
account and for the account of the other Persons entitled thereto, the fees
provided for in that certain fee letter dated March 1, 2001, executed and
delivered with respect to the credit facility provided for herein, in each case,
in the amounts and at the times set forth therein and in immediately available
funds.
(d) If at any time (i) the sum of (A) the Total Outstanding Principal
plus (B) the "Total Outstanding Principal" under (and as defined in) the Other
Credit Agreement exceeds 33% of (ii) the sum of (X) the Aggregate Commitments
plus (Y) the "Aggregate Commitments" under (and as defined in) the Other Credit
Agreement, the Borrower shall pay to the Administrative Agent, for the account
of the Lenders ratably in proportion to their respective Applicable Percentages,
a utilization fee (the "UTILIZATION FEE") calculated for each day with respect
to the Total Outstanding Principal on such day at the rate for such day
determined in accordance with the Pricing Grid. The accrued Utilization Fee
shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the Commitments terminate,
commencing on the first such date to occur after the Effective Date; provided
that any Utilization Fee accruing after the date on which the Commitments
terminate shall be payable on demand. The Utilization Fee shall be computed on
the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(e) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (for distribution, in
the case of Facility Fees, LC
30
Risk Participation Fees and any Utilization Fee, to the Lenders). Fees due and
paid shall not be refundable under any circumstances.
SECTION 2.13. INTEREST.
(a) The Loans comprising each ABR Borrowing shall bear interest at a
rate per annum equal to the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at a rate per annum equal to the LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Rate.
(c) Each Swingline Loan shall bear interest at a rate per annum equal
to the Swingline Rate, as determined for such Swingline Loan and notified by the
relevant Swingline Lender to the Borrower in accordance with Section 2.03(a).
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided above or (ii) in the case of
any other amount, 2% plus the rate applicable to ABR Loans as provided above.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan; provided that (i) interest accrued pursuant
to paragraph (d) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan, accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or
prepayment, (iii) in the event of any conversion of any Eurodollar Revolving
Loan prior to the end of the current Interest Period therefor, accrued interest
on such Loan shall be payable on the effective date of such conversion and (iv)
all accrued interest shall be payable upon termination of the Commitments.
(f) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.14. ALTERNATE RATE OF INTEREST. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent reasonably determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the LIBO Rate for such Interest Period; or
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(b) the Administrative Agent is advised by the Required Lenders that
the LIBO Rate for such Interest Period will not adequately and fairly reflect
the cost to such Lenders of making or maintaining their Loans included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective and (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing.
SECTION 2.15. INCREASED COSTS. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender or the LC Bank
(except any such reserve requirement described in paragraph (e) of this
Section); or
(ii) impose on any Lender or the LC Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or participation therein or
Unreimbursed LC Disbursements or Letters of Credit and participations
therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender or the LC Bank of making or maintaining any Eurodollar Loan or
Unreimbursed LC Disbursement or issuing or maintaining Letters of Credit and
participation interests therein (or of maintaining its obligation to make any
such Loan or issue or participate in such Letter of Credit) or to reduce the
amount of any sum received or receivable by such Lender or the LC Bank hereunder
(whether of principal, interest or otherwise), then the Borrower will pay to
such Lender or the LC Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or the LC Bank for such additional costs
incurred or reduction suffered.
(b) If any Lender or the LC Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the LC Bank's capital or on the capital of its
holding company, if any, as a consequence of this Agreement to a level below
that which such Lender or the LC Bank or its holding company could have achieved
but for such Change in Law (taking into consideration its policies and the
policies of its holding company with respect to capital adequacy), then from
time to time the Borrower will pay to such Lender or the LC Bank, as the case
may be, such additional amount or amounts as will compensate it or its holding
company for any such reduction suffered.
(c) A certificate of a Lender or the LC Bank, as the case may be,
setting forth the amount or amounts necessary to compensate it or its holding
company as specified in paragraph (a) or (b) of this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay the amount shown as due on any such certificate within 10 days after
receipt thereof.
32
(d) Failure or delay on the part of any Lender or the LC Bank to demand
compensation pursuant to this Section shall not constitute a waiver of its right
to demand such compensation; provided that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than ninety days prior to the date that such Lender or
the LC Bank notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of its intention to claim compensation
therefor; provided, further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the ninety day period
referred to above shall be extended to include the period of retroactive effect
thereof.
(e) The Borrower shall pay (without duplication as to amounts paid
under this Section 2.15) to each Lender, so long as such Lender shall be
required under regulations of the Board to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities,
additional interest on the unpaid principal amount of each Eurodollar Loan of
such Lender, from the date of such Loan until such principal amount is paid in
full, at an interest rate per annum equal at all times to the remainder obtained
by subtracting (i) the LIBO Rate for the Interest Period for such Loan from (ii)
the rate obtained by dividing such LIBO Rate by a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage of such Lender for such Interest Period,
payable on each date on which interest is payable on such Loan. Such additional
interest determined by such Lender and notified to the Borrower and the
Administrative Agent, accompanied by the calculation of the amount thereof,
shall be conclusive and binding for all purposes absent manifest error.
SECTION 2.16. BREAK FUNDING PAYMENTS. In the event of (a) the payment
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice is permitted to be
revocable under Section 2.11(b) and is revoked in accordance therewith), or (d)
the assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.19, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, the loss to any Lender attributable to any such event shall be
deemed to include an amount reasonably determined by such Lender to be equal to
the excess, if any, of (x) the amount of interest that such Lender would pay for
a deposit equal to the principal amount of such Loan for the period from the
date of such payment, conversion, failure or assignment to the last day of the
then current Interest Period for such Loan (or, in the case of a failure to
borrow, convert or continue, the duration of the Interest Period that would have
resulted from such borrowing, conversion or continuation) if the interest rate
payable on such deposit were equal to the LIBO Rate for such Interest Period,
over (y) the amount of interest that such Lender would earn on such principal
amount for such period if such Lender were to invest such principal amount for
such period at the interest rate that would be bid by such Lender (or an
affiliate of such Lender) for dollar deposit from other banks in the eurodollar
market at the commencement of such period. A certificate of any Lender setting
forth any amount or amounts that such Lender is entitled to receive pursuant to
this Section shall be delivered to the Borrower and shall be
33
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.17. TAXES.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if any Credit Party shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) 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) the Administrative Agent, LC Bank or Lender (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Credit Party shall make such deductions and
(iii) such Credit Party shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, the LC Bank
and each Lender, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes (and for any Taxes imposed or
asserted on or attributable to amounts payable under this Section) paid by the
Administrative Agent, the LC Bank or such Lender, as the case may be, and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or the LC Bank, or by the Administrative Agent on its own
behalf or on behalf of a Lender or the LC Bank, shall be conclusive absent
manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by a Credit Party to a Governmental Authority, such Credit Party
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the laws of the jurisdiction in which the
Borrower or the Guarantor is located, or any treaty to which such jurisdiction
is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with an additional original or a photocopy, as required under
applicable rules and procedures, to the Administrative Agent), at the time or
times prescribed by applicable law or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by applicable law as
shall be necessary to permit such payments to be made without withholding or at
a reduced rate. Further, in those circumstances as shall be necessary to allow
payments hereunder to be made free of (or at a reduced rate of) withholding tax,
each other Lender and the Administrative Agent, as applicable, shall deliver to
Borrower such documentation as the Borrower may reasonably request in writing.
34
(f) Except with the prior written consent of the Administrative Agent,
all amounts payable by a Credit Party hereunder shall be made by such Credit
Party in its own name and for its own account from within the United States by a
payor that is a United States person (within the meaning of Section 7701 of the
Code).
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS.
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest or fees, or under Section 2.15, 2.16,
2.17 or 11.03, or otherwise) prior to 12:00 noon, New York City time, on the
date when due, in immediately available funds, without set-off or counterclaim.
Any amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx, except that payments pursuant to Sections 2.15, 2.16, 2.17 and
11.03 shall be made directly to the Persons entitled thereto. The Administrative
Agent shall distribute any such payments received by it for the account of any
other Person to the appropriate recipient promptly following receipt thereof. If
any payment hereunder shall be due on a day that is not a Business Day, the date
for payment shall be extended to the next succeeding Business Day, and, in the
case of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, to pay interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, to pay principal then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal then due to such
parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of the Obligations owing to it resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of such
Obligations and accrued interest thereon than the proportion received by any
other Lender, then the Lender receiving such greater proportion shall purchase
(for cash at face value) participations in the Revolving Loans of other Lenders
to the extent necessary so that the benefit of all such payments shall be shared
by the Lenders ratably in accordance with the aggregate amount of principal of
and accrued interest on their respective Revolving Loans; provided that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans to any assignee
or participant, other than to the Guarantor, the Borrower or any other
Subsidiary or Affiliate of the Guarantor (as to which the provisions of this
paragraph shall apply). The Borrower and the Guarantor consent to the foregoing
and agree, to the extent they may effectively do so under applicable law, that
any Lender acquiring a participation pursuant to the foregoing arrangements
35
may exercise against the Borrower and the Guarantors rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower or the affected Guarantor in the amount of
such participation.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by
it pursuant to Section 2.03(c), 2.04(e), 2.05(b) or 2.18(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS. Any
Lender claiming reimbursement or compensation from the Borrower under either of
Sections 2.15 and 2.17 for any losses, costs or other liabilities shall use
reasonable efforts (including, without limitation, reasonable efforts to
designate a different lending office of such Lender for funding or booking its
Loans or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates) to mitigate the amount of such losses, costs
and other liabilities, if such efforts can be made and such mitigation can be
accomplished without such Lender suffering (i) any economic disadvantage for
which such Lender does not receive full indemnity from the Borrower under this
Agreement or (ii) otherwise be disadvantageous to such Lender.
(b) In determining the amount of any claim for reimbursement or
compensation under Sections 2.15 and 2.17, each Lender will use reasonable
methods of calculation consistent with such methods customarily employed by such
Lender in similar situations.
(c) Each Lender will notify the Borrower either directly or through the
Administrative Agent of any event giving rise to a claim under Section 2.15 or
Section 2.17 promptly after the occurrence thereof which notice shall be
accompanied by a certificate of such Lender setting forth in reasonable detail
the circumstances of such claim.
(d) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, or if any
Lender shall decline to consent to an extension of the Termination Date pursuant
to Section 2.20, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 11.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
36
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent and the LC Bank, which consent, in
the case of the Administrative Agent, shall not unreasonably be withheld and, in
the case of the LC Bank, may be given or withheld in the sole discretion of the
LC Bank, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.15 or payments required
to be made pursuant to Section 2.17, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
SECTION 2.20. EXTENSION OF TERMINATION DATE.
Unless the Commitments shall have been terminated in whole, or an Event
of Default or a Default shall have occurred and then be continuing, the Borrower
may request the Administrative Agent and the Lenders to extend the then
scheduled Termination Date by 364 days, and the Termination Date shall be so
extended if Lenders holding 100% of the Commitments each in its sole discretion
consents in writing to such extension, subject to such terms and conditions as
they shall impose; provided that the Borrower may not request an extension any
earlier than the 60th day, and the Lenders may not provide their consent to an
extension any earlier than the 45th day, prior to the then scheduled Termination
Date. In the event that any Lender shall fail to consent to such a request for
extension, the Borrower shall have the right to replace such Dissenting Lender
in accordance with Section 2.19.
ARTICLE III
CONDITIONS
SECTION 3.01. CONDITIONS PRECEDENT TO THE INITIAL EXTENSION OF CREDIT.
The obligation of each Lender to make the Initial Extension of Credit shall not
become effective until the date on which each of the following conditions, and
each of the conditions set forth in Section 3.02, is satisfied (or waived in
accordance with Section 11.02); provided that each of the conditions set forth
in this Section 3.01 shall be satisfied or waived no later than the Initial
Credit Event Date.
(a) The Administrative Agent (or its counsel) shall have received from
each party thereto either (i) a counterpart of this Agreement signed on behalf
of such party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(b) The Lenders, the Administrative Agent, the Arrangers and each other
Person entitled to the payment of fees or the reimbursement or payment of
expenses, pursuant hereto or to that certain fee letter dated March 1, 2001,
executed and delivered with respect to the credit
37
facility provided for herein, shall have received all fees required to be paid
by the Initial Credit Event Date, and all expenses for which invoices have been
presented on or before the Initial Credit Event Date.
(c) The Administrative Agent shall have received certified copies of
the resolutions of the Board of Directors of each of the Guarantor and the
Borrower approving this Agreement, and of all documents evidencing other
necessary corporate action and governmental and regulatory approvals with
respect to this Agreement.
(d) The Administrative Agent shall have received from each of the
Borrower and the Guarantor, to the extent generally available in the relevant
jurisdiction, a copy of a certificate or certificates of the Secretary of State
(or other appropriate public official) of the jurisdiction of its incorporation,
dated reasonably near the Initial Credit Event Date, (i) listing the charters of
the Borrower or the Guarantor, as the case may be, and each amendment thereto on
file in such office and certifying that such amendments are the only amendments
to the Borrower's or the Guarantor's charter, as the case may be, on file in
such office, and (ii) stating that the Borrower, or the Guarantor, as the case
may be, is duly incorporated and in good standing under the laws of the
jurisdiction of its place of incorporation.
(e) (i) The Administrative Agent shall have received a certificate or
certificates of each of the Borrower and the Guarantor, signed on behalf of the
Borrower and the Guarantor respectively, by a the Secretary, an Assistant
Secretary or a Responsible Officer thereof, dated the Initial Credit Event Date,
certifying as to (A) the absence of any amendments to the charter of the
Borrower or the Guarantor, as the case may be, since the date of the
certificates referred to in paragraph (d) above, (B) a true and correct copy of
the bylaws of each of the Borrower or the Guarantor, as the case may be, as in
effect on the Initial Credit Event Date, (C) the absence of any proceeding for
the dissolution or liquidation of the Borrower or the Guarantor, as the case may
be, (D) the truth, in all material respects, of the representations and
warranties contained in the Credit Documents to which the Borrower or the
Guarantor is a party, as the case may be, as though made on and as of the
Initial Credit Event Date, and (E) the absence, as of the Initial Credit Event
Date, of any Default or Event of Default; and (ii) each of such certifications
shall be true.
(f) The Administrative Agent shall have received a certificate of the
Secretary or an Assistant Secretary of each of the Guarantor and the Borrower
certifying the names and true signatures of the officers of Guarantor or the
Borrower, as the case may be, authorized to sign, and signing, this Agreement
and the other Credit Documents to be delivered hereunder on or before the
Initial Credit Event Date.
(g) The Administrative Agent shall have received from Xxxxxx Xxxxxx &
Xxxxx, counsel for the Guarantor and the Borrower, a favorable opinion,
substantially in the form of Exhibit B hereto and as to such other matters as
any Lender through the Administrative Agent may reasonably request.
(h) The Administrative Agent shall have received such evidence as it
and its counsel may reasonably require of the termination and payment in full of
the Acquisition Facility.
38
SECTION 3.02. CONDITIONS PRECEDENT TO EACH EXTENSION OF CREDIT. The
obligation of each Lender to make any Extension of Credit and of the LC Bank to
issue any Letter of Credit (including the initial Extension of Credit but
excluding any conversion or continuation of any Loan) shall be subject to the
satisfaction (or waiver in accordance with Section 11.02) of each of the
following conditions:
(a) The representations and warranties of the Guarantor and the
Borrower set forth in this Agreement shall be true and correct in all material
respects on and as of the date of such Extension of Credit, except to the extent
that such representations and warranties are specifically limited to a prior
date, in which case such representations and warranties shall be true and
correct in all material respects on and as of such prior date.
(b) After giving effect to (A) such Extension of Credit, together with
all other Extensions of Credit to be made contemporaneously therewith, and (B)
the repayment of any Loans that are to be contemporaneously repaid at the time
such Loan is made, such Extension of Credit will not result in the sum of the
then Total Outstanding Principal exceeding the Aggregate Commitments.
(c) Such Extension of Credit will comply with all other applicable
requirements of Article II, including without limitation Sections 2.01, 2.02,
2.03 and 2.04, as applicable.
(d) At the time of and immediately after giving effect to such
Borrowing, no Default or Event of Default shall have occurred and be continuing.
(e) In the case of a Revolving Loan, the Administrative Agent shall
have timely received a Borrowing Request; and, in the case of a Letter of Credit
issuance, a Request for Issuance.
(f) In the case of any Extension of Credit to be made after March 31,
2001, the Administrative Agent shall have received such evidence as it and its
counsel may reasonably require of the termination and payment in full of the
Terminating Facilities and the release by the holders thereof of any collateral
security securing such facilities.
Each Extension of Credit and the acceptance by the Borrower of the
benefits thereof shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a),
(b), (c) and (d) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES.
Each of the Borrower and the Guarantors represents and warrants as follows:
(a) Each of the Borrower and the Guarantor is a corporation duly
organized, validly existing and in good standing under the laws of the State of
its incorporation.
39
(b) The execution, delivery and performance by each of the Credit
Parties of the Credit Documents to which it is a party are within such Credit
Party's corporate powers, (i) have been duly authorized by all necessary
corporate action, (ii) do not contravene (A) such Credit Party's charter or
by-laws, as the case may be, or (B) any law, rule or regulation (including,
without limitation, the Public Utility Holding Company Act of 1935, as amended),
or any material Contractual Obligation or legal restriction, binding on or
affecting any Credit Party or any Material Subsidiary, as the case may be, and
(iii) do not require the creation of any Lien on the property of any Credit
Party or any Material Subsidiary under any Contractual Obligation binding on or
affecting such Credit Party or any Material Subsidiary.
(c) No authorization or approval or other action by, and no notice to
or filing with, any Governmental Authority or other Person is required for the
due execution, delivery and performance by any Credit Party of this Agreement or
any other Credit Document to which any of them is a party, except for such as
have been obtained or made and that are in full force and effect.
(d) Each Credit Document to which any Credit Party is a party is a
legal, valid and binding obligation of such Credit Party, enforceable against
such Credit Party in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
(e) The balance sheet of Old NiSource as at September 30, 2000, and the
related statements of income and retained earnings of Old NiSource for the nine
months then ended, copies of which have been made available or furnished to each
Lender, fairly present (subject to year-end adjustments) the financial condition
of Old NiSource as at such date and the results of the operations of Old
NiSource for the period ended on such date, all in accordance with generally
accepted accounting principles consistently applied. The balance sheet of
Columbia as at September 30, 2000, and the related statements of income and
retained earnings of Columbia for the nine months then ended, copies of which
have been made available or furnished to each Lender, fairly present (subject to
year-end adjustments) the financial condition of Columbia as at such date and
the results of the operations of Columbia for the period ended on such date, all
in accordance with generally accepted accounting principles consistently
applied.
(f) Since September 30, 2000, there has been no material adverse change
in such condition or operations, or in the business, assets, operations,
condition (financial or otherwise) or prospects of any of the Credit Parties or
of Columbia.
(g) There is no pending or threatened action or proceeding affecting
such Credit Party before any court, governmental agency or other Governmental
Authority or arbitrator that (taking into account the exhaustion of appeals)
would have a Material Adverse Effect, or that (i) purports to affect the
legality, validity or enforceability of this Agreement, or (ii) seeks to
prohibit the ownership or operation, by any Credit Party or any of their
respective Subsidiaries, of all or a material portion of their respective
businesses or assets.
40
(h) The Guarantor and its Subsidiaries, taken as a whole, do not hold
or carry Margin Stock having an aggregate value in excess of 10% of the value of
their consolidated assets, and no part of the proceeds of any Loan hereunder
will be used to buy or carry any Margin Stock.
(i) No ERISA Event has occurred, or is reasonably expected to occur,
with respect to any Plan that could reasonably be expected to have a Material
Adverse Effect.
(j) Schedule B (Actuarial Information) to the 1999 Annual report (Form
5500 Series) for each Plan, copies of which have been filed with the Internal
Revenue Service and made available or furnished to each Lender, is complete and
accurate and fairly presents the funding status of such Plan, and since the date
of such Schedule B there has been no adverse change in such funding status which
may reasonably be expected to have a Material Adverse Effect.
(k) Neither the Guarantor nor any ERISA Affiliate has incurred or is
reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan
which may reasonably be expected to have a Material Adverse Effect.
(l) Neither the Guarantor nor any ERISA Affiliate has been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title VI of ERISA,
and no Multiemployer Plan is reasonably expected to be in reorganization or to
be terminated, within the meaning of Title IV of ERISA, in either such case,
that could reasonably be expected to have a Material Adverse Effect.
(m) No Credit Party is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended.
(n) The Guarantor is a "public utility holding company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended,
registered in compliance therewith.
(o) Each Credit Party has filed all tax returns (Federal, state and
local) required to be filed by it and has paid or caused to be paid all taxes
due for the periods covered thereby, including interest and penalties, except
for any such taxes, interest or penalties which are being contested in good
faith and by proper proceedings and in respect of which such Credit Party has
set aside adequate reserves for the payment thereof in accordance with GAAP.
(p) Each Credit Party and its Subsidiaries are and have been in
compliance with all laws (including, without limitation, the Public Utility
Holding Company Act of 1935, as amended, and all Environmental Laws), except to
the extent that any failure to be in compliance, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(q) No Subsidiary of any Credit Party is party to, or otherwise bound
by, any agreement that prohibits such Subsidiary from making any payments,
directly or indirectly, to such Credit Party, by way of dividends, advances,
repayment of loans or advances, reimbursements of management or other
intercompany charges, expenses and accruals or other returns on investment, or
any other agreement that restricts the ability of such Subsidiary to make
41
any payment, directly or indirectly, to such Credit Party, other than
prohibitions and restrictions permitted to exist under Section 6.01(e).
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any Lender shall have
any Commitment hereunder or any principal of any Loan, interest or fees payable
hereunder shall remain unpaid or any Letter of Credit shall remain outstanding,
each of the Credit Parties will, unless the Required Lenders shall otherwise
consent in writing:
(a) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Subsidiaries to comply, in all material respects with all applicable laws,
rules, regulations and orders (including, without limitation, any of the
foregoing relating to employee health and safety or public utilities and all
Environmental Laws), unless the failure to so comply could not reasonably be
expected to have a Material Adverse Effect.
(b) MAINTENANCE OF PROPERTIES, ETC. Maintain and preserve, and cause
each Material Subsidiary to maintain and preserve, all of its material
properties which are used in the conduct of its business in good working order
and condition, ordinary wear and tear excepted, if the failure to do so could
reasonably be expected to have a Material Adverse Effect.
(c) PAYMENT OF TAXES, ETC. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, (i)
all taxes, assessments and governmental charges or levies imposed upon it or
upon its property, and (ii) all legal claims which, if unpaid, might by law
become a lien upon its property; provided, however, that neither any Credit
Party nor any of its Subsidiaries shall be required to pay or discharge any such
tax, assessment, charge or claim which is being contested in good faith and by
proper proceedings and as to which appropriate reserves are being maintained.
(d) MAINTENANCE OF INSURANCE. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
obtained by companies engaged in similar businesses of comparable size and
financial strength and owning similar properties in the same general areas in
which such Credit Party or such Subsidiary operates, or to the extent such
Credit Party or Subsidiary deems it reasonably prudent to do so, through its own
program of self-insurance.
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(e) PRESERVATION OF CORPORATE EXISTENCE, Etc. Preserve and maintain,
and cause each Material Subsidiary to preserve and maintain, its corporate
existence, rights (charter and statutory) and franchises, except as otherwise
permitted under this Agreement; provided that that no such Person shall be
required to preserve any right or franchise with respect to which the Board of
Directors of such Person has determined that the preservation thereof is no
longer desirable in the conduct of the business of such Person and that the loss
thereof is not disadvantageous in any material respect to such Person or the
Lenders.
(f) VISITATION RIGHTS. At any reasonable time and from time to time,
permit the Administrative Agent or any of the Lenders or any agents or
representatives thereof, on not less than five Business Days' notice, to examine
and make copies of and abstracts from the records and books of account of, and
visit the properties of, such Credit Party or any of its Subsidiaries, and to
discuss the affairs, finances and accounts of the Credit Parties and their
respective Subsidiaries with any of their respective officers and with their
independent certified public accountants; subject, however, in all cases to the
imposition of such conditions as the affected Credit Party or Subsidiary shall
deem necessary based on reasonable considerations of safety and security and
provided that so long as no Default or Event of Default shall have occurred and
be continuing, each Lender will be limited to one visit each year.
(g) KEEPING OF BOOKS. Keep, and cause each of its Subsidiaries to keep,
proper books of record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of each of the
Credit Parties and each of their respective Subsidiaries in accordance with
generally accepted accounting principles consistently applied.
(h) REPORTING REQUIREMENTS. Deliver to the Administrative Agent for
distribution to the Lenders:
(i) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each fiscal year of the
Guarantor, balance sheets of the Guarantor and its Consolidated
Subsidiaries in comparative form as of the end of such quarter and
statements of income and retained earnings of the Guarantor and its
Consolidated Subsidiaries for the period commencing at the end of the
previous fiscal year of the Guarantor and ending with the end of such
quarter, certified by the chief financial officer of the Guarantor.
(ii) as soon as available and in any event within 90 days
after the end of each fiscal year of the Guarantor, a copy of the
annual report for such year for the Guarantor and its Consolidated
Subsidiaries containing financial statements for such year reported on
by independent public accountants of recognized national standing
acceptable to the Required Lenders, together with a certificate of such
accounting firm to the Administrative Agent and the Lenders stating
that in the course of the regular audit of the business of the
Guarantor and its Consolidated Subsidiaries, which audit was conducted
by such accounting firm in accordance with generally accepted auditing
standards, such accounting firm has obtained no knowledge that a
Default or an Event of Default has occurred and is continuing, or if,
in the opinion of such accounting firm, a Default or an Event of
Default has occurred and is continuing, a statement as to the nature
thereof;
43
(iii) concurrently with the delivery of financial statements
pursuant to clauses (i) and (ii) above or the notice relating thereto
contemplated by the final sentence of this Section 5.01(h), a
certificate of a senior financial officer of each of the Guarantor and
the Borrower (A) to the effect that no Default or Event of Default has
occurred and is continuing (or, if any Default or Event of Default has
occurred and is continuing, describing the same in reasonable detail
and describing the action that the Guarantor or the Borrower, as the
case may be, has taken and proposes to take with respect thereto), and
(B) in the case of the certificate relating to the Guarantor, setting
forth calculations, in reasonable detail, establishing Borrower's
compliance, as at the end of such fiscal quarter, with the financial
covenants contained in Article VII;
(iv) as soon as possible and in any event within five days
after the occurrence of each Default or Event of Default continuing on
the date of such statement, a statement of the chief financial officer
of the Borrower setting forth details of such Event of Default or event
and the action which the Borrower has taken and proposes to take with
respect thereto;
(v) promptly after the sending or filing thereof, copies of
all reports which the Guarantor sends to its stockholders, and copies
of all reports and registration statements (other than registration
statements filed on Form S-8 and filings under the Public Utilities
Holding Company Act of 1935, as amended) that the Guarantor, the
Borrower or any Subsidiary of the Guarantor or the Borrower, files with
the Securities and Exchange Commission or any national securities
exchange;
(vi) promptly and in any event within 30 days after the filing
thereof with the Internal Revenue Service, copies of each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) with
respect to each Plan;
(vii) promptly and in any event within 10 days after the
Guarantor knows or has reason to know that any material ERISA Event has
occurred, a statement of the chief financial officer of the Borrower
describing such ERISA Event and the action, if any, which the Guarantor
or any affected ERISA Affiliate proposes to take with respect thereto;
(viii) promptly and in any event within two Business Days
after receipt thereof by the Guarantor (or knowledge being obtained by
the Guarantor of the receipt thereof by any ERISA Affiliate), copies of
each notice from the PBGC stating its intention to terminate any Plan
or to have a trustee appointed to administer any Plan;
(ix) promptly and in any event within five Business Days after
receipt thereof by the Guarantor (or knowledge being obtained by the
Guarantor of the receipt thereof by any ERISA Affiliate) from the
sponsor of a Multiemployer Plan, a copy of each notice received by the
Guarantor or any ERISA Affiliate concerning (A) the imposition of
material Withdrawal Liability by a Multiemployer Plan, (B) the
reorganization or termination, within the meaning of Title IV of ERISA,
of any Multiemployer Plan or (C) the amount of liability incurred, or
which may be incurred, by the Guarantor or any ERISA Affiliate in
connection with any event described in clause (A) or (B) above;
44
(x) promptly after the Guarantor has knowledge of the
commencement thereof, notice of any actions, suits and proceedings
before any court or governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, affecting the Guarantor
or any Material Subsidiary of the type described in Section 4.01(g);
(xi) promptly after the Guarantor or the Borrower knows of any
change in the rating of the Index Debt by S&P or Xxxxx'x, a notice of
such changed rating; and
(xii) such other information respecting the condition or
operations, financial or otherwise, of the Guarantor or any of its
Subsidiaries as any Lender through the Administrative Agent may from
time to time reasonably request.
Notwithstanding the foregoing, the Credit Parties' obligations to deliver the
documents or information required under any of clauses (i), (ii) and (v) above
shall be deemed to be satisfied upon (x) the relevant documents or information
being publicly available on the Guarantor's website or other publicly available
electronic medium (such as XXXXX) within the time period required by such
clause, and (y) the delivery by the Guarantor or the Borrower of notice to the
Administrative Agent and the Lenders, within the time period required by such
clause, that such documents or information are so available.
(i) USE OF PROCEEDS. Use the proceeds of the Loans and the Letters of
Credit hereunder for general corporate purposes, including to provide liquidity
support for commercial paper issued by the Borrower.
(j) RATINGS. At all times maintain ratings by both Xxxxx'x and S&P with
respect to the Index Debt.
(k) TERMINATING FACILITIES. Terminate and pay in full, or cause to be
terminated and paid in full, each of the Terminating Facilities not later than
March 31, 2001; and furnish or cause to be furnished to the Administrative Agent
such evidence as it and its counsel may reasonably require of such termination
and payment and the release by the holders thereof of any collateral security
securing the Terminating Facilities (or any of them).
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. NEGATIVE COVENANTS. So long as any Lender shall have any
Commitment hereunder or any principal of any Loan, interest or fees payable
hereunder shall remain unpaid or any Letter of Credit shall remain outstanding,
no Credit Party will, without the written consent of the Required Lenders:
(a) LIMITATION ON LIENS. Create or suffer to exist, or permit any of
its Subsidiaries (other than a Utility Subsidiary) to create or suffer to exist,
any lien, security interest, or other charge or encumbrance (collectively,
"LIENS") upon or with respect to any of its properties, whether now owned or
hereafter acquired, or collaterally assign for security purposes, or permit any
of its Subsidiaries (other than a Utility Subsidiary) to so assign any right to
receive income
45
in each case to secure or provide for or guarantee the payment of Debt for
Borrowed Money of any Person, without in any such case effectively securing,
prior to or concurrently with the creation, issuance, assumption or guaranty of
any such Debt for Borrowed Money, the Obligations (together with, if the
Guarantor shall so determine, any other Debt for Borrowed Money of or guaranteed
by the Guarantor or any of its Subsidiaries ranking equally with the Loans and
then existing or thereafter created) equally and ratably with (or prior to) such
Debt for Borrowed Money; provided, however, that the foregoing restrictions
shall not apply to or prevent the creation or existence of:
(i) (A) Liens on any property acquired, constructed or
improved by the Guarantor or any of its Subsidiaries (other than a
Utility Subsidiary) after the date of this Agreement that are created
or assumed prior to, contemporaneously with, or within 180 days after,
such acquisition or completion of such construction or improvement, to
secure or provide for the payment of all or any part of the purchase
price of such property or the cost of such construction or improvement;
or (B) in addition to Liens contemplated by clauses (ii) and (iii)
below, Liens on any property existing at the time of acquisition
thereof, provided that the Liens shall not apply to any property
theretofore owned by the Guarantor or any such Subsidiary other than,
in the case of any such construction or improvement, (1) unimproved
real property on which the property so constructed or the improvement
is located, (2) other property (or improvements thereon) that is an
improvement to or is acquired or constructed for specific use with such
acquired or constructed property (or improvement thereof), and (3) any
rights and interests (A) under any agreements or other documents
relating to, or (B) appurtenant to, the property being so constructed
or improved or such other property;
(ii) existing Liens on any property or indebtedness of a
corporation that is merged with or into or consolidated with any Credit
Party or any of its Subsidiaries; provided that such Lien was not
created in contemplation of such merger or consolidation;
(iii) Liens on any property or indebtedness of a corporation
existing at the time such corporation becomes a Subsidiary of any
Credit Party; provided that such Lien was not created in contemplation
of such occurrence;
(iv) Liens to secure Debt for Borrowed Money of a Subsidiary
of a Credit Party to a Credit Party or to another Subsidiary of the
Guarantor;
(v) Liens in favor of the United States of America, any State,
any foreign country or any department, agency or instrumentality or
political subdivision of any such jurisdiction, to secure partial,
progress, advance or other payments pursuant to any contract or statute
or to secure any Debt for Borrowed Money incurred for the purpose of
financing all or any part of the purchase price of the cost of
constructing or improving the property subject to such Liens,
including, without limitation, Liens to secure Debt for Borrowed Money
of the pollution control or industrial revenue bond type;
46
(vi) Liens on any property (including any natural gas, oil or
other mineral property) to secure all or part of the cost of
exploration, drilling or development thereof or to secure Debt for
Borrowed Money incurred to provide funds for any such purpose;
(vii) Liens existing on the date of this Agreement;
(viii) Liens for the sole purposes of extending, renewing or
replacing in whole or in part Debt for Borrowed Money secured by any
Lien referred to in the foregoing clauses (i) through (vii), inclusive,
or this clause (viii); provided, however, that the principal amount of
Debt for Borrowed Money secured thereby shall not exceed the principal
amount of Debt for Borrowed Money so secured at the time of such
extension, renewal or replacement (which, for purposes of this
limitation as it applies to a synthetic lease, shall be deemed to be
(x) the lessor's original cost of the property subject to such lease at
the time of extension, renewal or replacement, less (y) the aggregate
amount of all prior payments under such lease allocated pursuant to the
terms of such lease to reduce the principal amount of the lessor's
investment, and borrowings by the lessor, made to fund the original
cost of the property), and that such extension, renewal or replacement
shall be limited to all or a part of the property or indebtedness which
secured the Lien so extended, renewed or replaced (plus improvements on
such property);
(ix) Liens on any property or assets of a Project Financing
Subsidiary, or on any Capital Stock in a Project Financing Subsidiary,
in either such case, that secure only a Project Financing or a
Contingent Guaranty that supports a Project Financing; or
(x) Any Lien, other than a Lien described in any of the
foregoing clauses (i) through (ix), inclusive, to the extent that it
secures Debt for Borrowed Money, or guaranties thereof, the outstanding
principal balance of which at the time of creation of such Lien, when
added to the aggregate principal balance of all Debt for Borrowed Money
secured by Liens incurred under this clause (x) then outstanding, does
not exceed 5% of Consolidated Net Tangible Assets.
If at any time any Credit Party or any of its Subsidiaries shall
create, issue, assume or guaranty any Debt for Borrowed Money secured by any
Lien and the first paragraph of this Section 6.01(a) requires that the Loans be
secured equally and ratably with such Debt for Borrowed Money, the Borrower
shall promptly deliver to the Administrative Agent and each Lender:
(1) a certificate of a duly authorized officer of the Borrower
stating that the covenant contained in the first paragraph of this
Section 6.01(a) has been complied with; and
(2) an opinion of counsel acceptable to the Required Lenders
to the effect that such covenant has been complied with and that all
documents executed by any Credit Party or any of its Subsidiaries in
the performance of such covenant comply with the requirements of such
covenant.
(b) MERGERS, ETC. Merge or consolidate with or into, or, except in a
transaction permitted under paragraph (c) of this Section, convey, transfer,
lease or otherwise dispose
47
of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to any
Person, or permit any of its Subsidiaries to do so, except that:
(i) any Subsidiary of the Guarantor may merge or consolidate
with or transfer assets to or acquire assets from any other Subsidiary
of the Guarantor; and
(ii) any Subsidiary of the Guarantor may merge into or
transfer assets to the Borrower; and
(iii) the Guarantor or any Subsidiary of the Guarantor may
merge, or consolidate with or transfer all or substantially all of its
assets to any other Person; provided that in each case, immediately
after giving effect thereto, (A) no Event of Default shall have
occurred and be continuing (determined, for purposes of compliance with
Section 7.01 after giving effect to such transaction, on a pro forma
basis for the period of four consecutive fiscal quarters of the
Guarantor then most recently ended, as if such transaction had occurred
on the first day of such period, and, for purposes of compliance with
Section 7.02 after giving effect to such transaction, on a pro forma
basis as if such transaction had occurred on the last day of the
Guarantor's fiscal quarter then most recently ended); (B) in the case
of any merger, consolidation or transfer of assets to which the
Borrower is a party (other than a merger, consolidation or transfer of
assets between the Borrower and the Guarantor), the Borrower shall be
the continuing or surviving corporation; (C) in the case of any merger,
consolidation or transfer of assets between the Borrower and the
Guarantor, the Guarantor shall have assumed all of the obligations of
the Borrower under and in respect of the Credit Documents by written
instrument satisfactory to the Administrative Agent and its counsel in
their reasonable discretion, accompanied by such opinions of counsel
and other supporting documents as they may reasonably require; (D) in
the case of any merger, consolidation, or transfer of assets to which
NIPSCO or Columbia is a party (other than a merger, consolidation or
transfer of assets between such Person and a Credit Party), NIPSCO or
Columbia, as the case may be, shall be the continuing or surviving
corporation; (E) in the case of any merger, consolidation or transfer
of assets to which the Guarantor is a party, the Guarantor shall be the
continuing or surviving corporation; and (F) the Index Debt shall be
rated at least BBB- by S&P and at least Baa3 by Xxxxx'x.
(c) SALES, ETC. OF ASSETS. Sell, lease, transfer or otherwise dispose
of, or permit any of their respective Subsidiaries to sell, lease, transfer or
otherwise dispose of (other than in connection with a transaction authorized by
paragraph (b) of this Section) any substantial part of its assets; provided that
the foregoing shall not prohibit any such sale, conveyance, lease, transfer or
other disposition that (i) constitutes realization on a Lien permitted to exist
under Section 6.01(a); or (ii) (A) (1) is for a price not materially less than
the fair market value of such assets, (2) would not materially impair the
ability of any Credit Party to perform its obligations under this Agreement and
(3) together with all other such sales, conveyances, leases, transfers and other
dispositions, would have no Material Adverse Effect, or (B) would not result in
the sale, lease, transfer or other disposition, in the aggregate, of more than
10% of the consolidated total assets of the Guarantor and its Subsidiaries,
determined in accordance with GAAP, on November 1, 2000 after giving effect to
the Merger.
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(d) COMPLIANCE WITH ERISA. (i) Terminate, or permit any ERISA Affiliate
to terminate, any Plan so as to result in a Material Adverse Effect or (ii)
permit to exist any occurrence of any Reportable Event (as defined in Title IV
of ERISA), or any other event or condition, that presents a material (in the
reasonable opinion of the Required Lenders) risk of such a termination by the
PBGC of any Plan, if such termination could reasonably be expected to have a
Material Adverse Effect.
(e) CERTAIN RESTRICTIONS. Permit any of its Subsidiaries (other than,
in the case of the Guarantor, the Borrower) to enter into or permit to exist any
agreement that by its terms prohibits such Subsidiary from making any payments,
directly or indirectly, to such Credit Party by way of dividends, advances,
repayment of loans or advances, reimbursements of management or other
intercompany charges, expenses and accruals or other returns on investment, or
any other agreement that restricts the ability of such Subsidiary to make any
payment, directly or indirectly, to such Credit Party; provided that the
foregoing shall not apply to prohibitions and restrictions imposed by this
Agreement or (i) (A) imposed under an agreement in existence on the date of this
Agreement, and (B) described on Schedule 6.01(e), (ii) existing with respect to
a Subsidiary on the date it becomes a Subsidiary that are not created in
contemplation thereof (but shall apply to any extension or renewal of, or any
amendment or modification expanding the scope of, any such prohibition or
restriction), (iii) contained in agreements relating to the sale of a Subsidiary
pending such sale, provided that such prohibitions or restrictions apply only to
the Subsidiary that is to be sold and such sale is permitted hereunder, (iv)
imposed on a Project Financing Subsidiary in connection with a Project
Financing, or (v) that could not reasonably be expected to have a Material
Adverse Effect.
ARTICLE VII
FINANCIAL COVENANTS
So long as any Lender shall have any Commitment hereunder or any
principal of any Loan, interest or fees payable hereunder shall remain unpaid or
any Letter of Credit shall remain outstanding, the Guarantor shall:
SECTION 7.01. INTEREST COVERAGE RATIO. (a) Maintain an Interest
Coverage Ratio of not less than 1.75 to 1.00 for each period of four consecutive
fiscal quarters, commencing with the four fiscal quarters ended March 31, 2001.
SECTION 7.02. DEBT TO CAPITALIZATION RATIO. Maintain a Debt to
Capitalization Ratio of not more than 0.70:1:00; provided, however, that neither
the Borrower or the Guarantor shall be deemed to be in default of this covenant
as of any time that all of the following conditions are satisfied:
(a) the Guarantor or any Consolidated Subsidiary of the Guarantor has
incurred indebtedness after the Effective Date to finance a material
acquisition;
(b) the Index Debt shall be rated at least BBB by S&P and Baa2 by
Xxxxx'x and shall not have been downgraded below those levels since the
Effective Date; and
49
(c) the Debt to Capitalization ratio does not exceed 0.75 to 1.00 at
such time and has not exceeded 0.70:1:00 for more than a single period of time
not to exceed six months.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01. EVENTS OF DEFAULT. If any of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan or
Unreimbursed LC Disbursement when the same becomes due and payable or shall fail
to pay any interest, fees or other amounts hereunder within three days after
when the same becomes due and payable; or
(b) Any representation or warranty made by any Credit Party herein or
by any Credit Party (or any of its officers) in connection with this Agreement
shall prove to have been incorrect in any material respect when made; or
(c) Any Credit Party shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(e), 5.01(f), 5.01(h), 5.01(i),
6.01 or Article VII; or
(d) Any Credit Party shall fail to perform or observe any term,
covenant or agreement contained in this Agreement on its part to be performed or
observed (other than one identified in paragraph (a), (b) or (c) above) if the
failure to perform or observe such other term, covenant or agreement shall
remain unremedied for thirty days after written notice thereof shall have been
given to the Borrower by the Administrative Agent or any Lender; or
(e) The Guarantor, the Borrower or any of their respective Subsidiaries
shall fail to pay any principal of or premium or interest on any Indebtedness
(excluding Non-Recourse Debt) which is outstanding in a principal amount of at
least $50,000,000 in the aggregate (but excluding the Loans) of the Guarantor,
the Borrower or such Subsidiary, as the case may be, when the same becomes due
and payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Indebtedness; or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Indebtedness and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the scheduled maturity of such Indebtedness; or any
such Indebtedness shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment), prior to the
stated maturity thereof; or an "Event of Default" shall occur and be continuing
under (and as defined in) the Other Credit Agreement; or
(f) Any Credit Party shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts generally,
or shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against any Credit Party seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the
50
entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against any Credit
Party (but not instituted by any Credit Party), either such proceeding shall
remain undismissed or unstayed for a period of 60 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of an order
for relief against, or the appointment of a receiver, trustee, custodian or
other similar official for, any Credit Party or for any substantial part of its
property) shall occur; or any Credit Party shall take any corporate action to
authorize any of the actions set forth above in this paragraph (f); or
(g) One or more Subsidiaries of the Guarantor (other than any Credit
Party) in which the aggregate sum of (i) the amounts invested by the Guarantor
and its other Subsidiaries in the aggregate, by way of purchases of Capital
Stock, Capital Leases, loans or otherwise, and (ii) the amount of recourse,
whether contractual or as a matter of law (but excluding Non-Recourse Debt),
available to creditors of such Subsidiary or Subsidiaries against the Guarantor
or any of its other Subsidiaries, is $100,000,000 or more (collectively,
"SUBSTANTIAL SUBSIDIARIES") shall generally not pay their respective debts as
such debts become due, or shall admit in writing their respective inability to
pay their debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against Substantial
Subsidiaries seeking to adjudicate them bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of them or theft respective debts under any law relating
to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for them or for any substantial part of
their respective property and, in the case of any such proceeding instituted
against Substantial Subsidiaries (but not instituted by any Subsidiary of the
Guarantor), either such proceeding shall remain undismissed or unstayed for a
period of 60 days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official for, the Substantial
Subsidiaries or for any substantial part of their respective property) shall
occur; or Substantial Subsidiaries shall take any corporate action to authorize
any of the actions set forth above in this paragraph (g); or
(h) Any judgment or order for the payment of money in excess of
$50,000,000 shall be rendered against the Borrower, the Guarantor or any of its
other Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall be any
period of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(i) Any ERISA Event shall have occurred with respect to a Plan and, 30
days after notice thereof shall have been given to the Guarantor or the Borrower
by the Administrative Agent, (i) such ERISA Event shall still exist and (ii) the
sum (determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other Plans with
respect to which an ERISA Event shall have occurred and then exist (or, in the
case of a Plan with respect to which an ERISA Event described in clauses (iii)
through (vi) of the definition of ERISA Event shall have occurred and then
exist, the liability related thereto) is equal to or greater than $10,000,000
(when aggregated with paragraphs (j), (k) and (l) of this Section), and a
Material Adverse Effect could reasonably be expected to occur as a result
thereof; or
51
(j) The Guarantor or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to
such Multiemployer Plan in an amount which, when aggregated with all other
amounts required to be paid to Multiemployer Plans by the Guarantor and its
ERISA Affiliates as Withdrawal Liability (determined as of the date of such
notification), exceeds $10,000,000 or requires payments exceeding $10,000,000
per annum (in either case, when aggregated with paragraphs (i), (k) and (l) of
this Section), and a Material Adverse Effect could reasonably be expected to
occur as a result thereof; or
(k) The Guarantor or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
if as a result of such reorganization or termination the aggregate annual
contributions of the Guarantor and its ERISA Affiliates to all Multiemployer
Plans which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan year of each such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an amount
exceeding $10,000,000 (when aggregated with paragraphs (i), (j) and (l) of this
Section), and a Material Adverse Effect could reasonably be expected to occur as
a result thereof; or
(l) The Guarantor or any ERISA Affiliate shall have committed a failure
described in Section 302(f)(1) of ERISA and the amount determined under Section
302(f)(3) of ERISA is equal to or greater than $10,000,000 (when aggregated with
paragraphs (i), (j) and (k) of this Section), and a Material Adverse Effect
could reasonably be expected to occur as a result thereof; or
(m) Any provision of the Credit Documents shall be held by a court of
competent jurisdiction to be invalid or unenforceable against any Credit Party
purported to be bound thereby, or any Credit Party shall so assert in writing;
or
(n) Any Change of Control shall occur;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitment of each Lender, the obligation of each Swingline Lender
to make or maintain Swingline Loans and the obligation of the LC Bank to issue
or maintain Letters of Credit hereunder to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare all amounts
payable under this Agreement to be forthwith due and payable, whereupon all such
amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower; provided that in the event of an actual or deemed entry
of an order for relief with respect to any Credit Party under the Federal
Bankruptcy Code, (1) the Commitment of each Lender, the obligation of each
Swingline Lender to make or maintain Swingline Loans and the obligation of the
LC Bank to issue or maintain Letters of Credit hereunder shall automatically be
terminated and (2) all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by the Borrower.
52
Notwithstanding anything to the contrary contained herein, no notice
given or declaration made by the Administrative Agent pursuant to this Section
8.01 shall affect (i) the obligation of the LC Bank to make any payment under
any outstanding Letter of Credit in accordance with the terms of such Letter of
Credit, (ii) the obligations of each Lender in respect of each such Letter of
Credit or (iii) the obligation of each Lender to purchase its pro rata share of
any Swingline Loans; provided, however, that upon the occurrence and during the
continuance of any Event of Default, the Administrative Agent shall at the
request, or may with the consent, of the Required Lenders, upon notice to the
Borrower, require the Borrower to deposit with the Administrative Agent an
amount in the cash account (the "CASH ACCOUNT") described below equal to the
then current LC Outstandings. Such Cash Account shall at all times be free and
clear of all rights or claims of third parties. The Cash Account shall be
maintained with the Administrative Agent in the name of, and under the sole
dominion and control of, the Administrative Agent, and amounts deposited in the
Cash Account shall bear interest at a rate equal to the rate generally offered
by Barclays for deposits equal to the amount deposited by the Borrower in the
Cash Account pursuant to this Section 8.01, for a term to be agreed to between
the Borrower and the Administrative Agent. If any drawings then outstanding or
thereafter made are not reimbursed in full immediately upon demand or, in the
case of subsequent drawings, upon being made, then, in any such event, the
Administrative Agent may apply the amounts then on deposit in the Cash Account,
in such priority as the Administrative Agent shall elect, toward the payment in
full of any or all of the Borrower's obligations hereunder as and when such
obligations shall become due and payable. Upon payment in full, after the
termination of the Letters of Credit, of all such obligations, the
Administrative Agent will repay to the Borrower any cash then on deposit in the
Cash Account.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.01. THE ADMINISTRATIVE AGENT.
(a) Each of the Lenders and the LC Bank hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
(b) The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
bank and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the any Credit Party or any of such Credit
Party's Subsidiaries or other Affiliates thereof as if it were not the
Administrative Agent hereunder.
(c) The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (i) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (ii) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
53
required to exercise in writing by the Required Lenders, and (iii) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower, the Guarantor or any of its other Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders or in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have knowledge of
any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (1)
any statement, warranty or representation made in or in connection with this
Agreement, (2) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (3) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth
herein, (4) the validity, enforceability, effectiveness or genuineness of this
Agreement or any other agreement, instrument or document, or (5) the
satisfaction of any condition set forth in Article III or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to the
Administrative Agent and the conformity thereof to such express requirement.
(d) The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for a Credit Party) independent accountants and
other experts selected by it and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.
(e) The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
(f) Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, with the consent of the
Borrower (which consent shall not unreasonably be withheld), to appoint a
successor. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New York,
or an Affiliate of any such bank, in any event having total assets in excess of
$500,000,000 and who shall serve until such time, if any, as an Agent shall have
been appointed
54
as provided above. Upon the acceptance of its appointment as Administrative
Agent hereunder by a successor, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.
After the Administrative Agent's resignation hereunder, the provisions of this
Article and Section 11.03 shall continue in effect for its benefit in respect of
any actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
(g) Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
(h) No Lender identified on the signature pages of this Agreement as a
"Lead Arranger", "Arranger", "Senior Managing Agent", "Manager",
"Co-Documentation Agent" or "Syndication Agent", or that is given any other
title hereunder other than "LC Bank", "Swingline Lender" or "Administrative
Agent", shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Lenders as such.
Without limiting the generality of the foregoing, no Lender so identified as a
"Lead Arranger", "Arranger", "Senior Managing Agent", "Manager",
"Co-Documentation Agent" or "Syndication Agent" or that is given any other title
hereunder, shall have, or be deemed to have, any fiduciary relationship with any
Lender. Each Lender acknowledges that is has not relied, and will not rely, on
the Lenders so identified in deciding to enter into this Agreement or in taking
or not taking action hereunder.
ARTICLE X
GUARANTY
SECTION 10.01. THE GUARANTY.
(a) The Guarantor, as primary obligor and not merely as a surety,
hereby irrevocably, absolutely and unconditionally guarantees to the
Administrative Agent and the Lenders and each of their respective successors,
endorsees, transferees and assigns (each a "BENEFICIARY" and collectively, the
"BENEFICIARIES") the prompt and complete payment by the Borrower, as and when
due and payable, of the Obligations, in accordance with the terms of the Credit
Documents. The provisions of this Article X are sometimes referred to
hereinafter as the "GUARANTY".
(b) The Guarantor hereby guarantees that the Obligations will be paid
strictly in accordance with the terms of the Credit Documents, regardless of any
law now or hereafter in effect in any jurisdiction affecting any such terms or
the rights of the Beneficiaries with respect thereto. The obligations and
liabilities of the Guarantor under this Guaranty shall be absolute
55
and unconditional irrespective of: (i) any lack of validity or enforceability of
any of the Obligations or any Credit Document, or any delay, failure or omission
to enforce or agreement not to enforce, or the stay or enjoining, by order of
court, by operation of law or otherwise, of the exercise of any right with
respect to the foregoing (including, in each case, without limitation, as a
result of the insolvency, bankruptcy or reorganization of any Beneficiary, the
Borrower or any other Person); (ii) any change in the time, manner or place of
payment of, or in any other term in respect of, all or any of the Obligations,
or any other amendment or waiver of or consent to any departure from the Credit
Documents or any agreement or instrument relating thereto; (iii) any exchange or
release of, or non-perfection of any Lien on or in any collateral, or any
release, amendment or waiver of, or consent to any departure from, any other
guaranty of, or agreement granting security for, all or any of the Obligations;
(iv) any claim, set-off, counterclaim, defense or other rights that such
Guarantor may have at any time and from time to time against any Beneficiary or
any other Person, whether in connection with this transaction or any unrelated
transaction; or (v) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Borrower or any other guarantor or
surety in respect of the Obligations or such Guarantor in respect hereof.
(c) The Guaranty provided for herein (i) is a guaranty of payment and
not of collection; (ii) is a continuing guaranty and shall remain in full force
and effect until the Commitments and Letters of Credit have been terminated and
the Obligations have been paid in full in cash; and (iii) shall continue to be
effective or shall be reinstated, as the case may be, if at any time any
payment, or any part thereof, of any of the Obligations is rescinded or must
otherwise be returned by any Beneficiary upon or as a result of the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Borrower or
otherwise, all as though such payment had not been made.
(d) The obligations and liabilities of the Guarantor hereunder shall
not be conditioned or contingent upon the pursuit by any Beneficiary or any
other Person at any time of any right or remedy against the Borrower or any
other Person that may be or become liable in respect of all or any part of the
Obligations or against any collateral security or guaranty therefor or right of
setoff with respect thereto.
(e) The Guarantor hereby consents that, without the necessity of any
reservation of rights against such Guarantor and without notice to or further
assent by such Guarantor, any demand for payment of any of the Obligations made
by any Beneficiary may be rescinded by such Beneficiary and any of the
Obligations continued after such rescission.
(f) The Guarantor's obligations under this Guaranty shall be
unconditional, irrespective of any lack of capacity of the Borrower or any lack
of validity or enforceability of any other provision of this Agreement or any
other Credit Document, and this Guaranty shall not be affected in any way by any
variation, extension, waiver, compromise or release of any or all of the
Obligations or of any security or guaranty from time to time therefor.
(g) The obligations of the Guarantor under this Guaranty shall not be
reduced, limited, impaired, discharged, deferred, suspended or terminated by any
proceeding or action, voluntary or involuntary, involving the bankruptcy,
insolvency, receivership, reorganization, marshalling of assets, assignment for
the benefit of creditors, composition with creditors,
56
readjustment, liquidation or arrangement of the Borrower or any similar
proceedings or actions, or by any defense the Borrower may have by reason of the
order, decree or decision of any court or administrative body resulting from any
such proceeding or action. Without limiting the generality of the foregoing, the
Guarantor's liability shall extend to all amounts and obligations that
constitute the Obligations and would be owed by the Borrower, but for the fact
that they are unenforceable or not allowable due to the existence of any such
proceeding or action.
SECTION 10.02. WAIVERS.
(a) The Guarantor hereby unconditionally waives: (i) promptness and
diligence; (ii) notice of or proof of reliance by the Administrative Agent or
the Lenders upon this Guaranty or acceptance of this Guaranty; (iii) notice of
the incurrence of any Obligation by the Borrower or the renewal, extension or
accrual of any Obligation or of any circumstances affecting the Borrower's
financial condition or ability to perform the Obligations; (iv) notice of any
actions taken by the Beneficiaries or the Borrower or any other Person under any
Credit Document or any other agreement or instrument relating thereto; (v) all
other notices, demands and protests, and all other formalities of every kind in
connection with the enforcement of the Obligations, of the obligations of the
Guarantor hereunder or under any other Credit Document, the omission of or delay
in which, but for the provisions of this Section 10 might constitute grounds for
relieving the Guarantor of its obligations hereunder; (vi) any requirement that
the Beneficiaries protect, secure, perfect or insure any Lien or any property
subject thereto, or exhaust any right or take any action against the Borrower or
any other Person or any collateral; and (vii) each other circumstance, other
than payment of the Obligations in full, that might otherwise result in a
discharge or exoneration of, or constitute a defense to, the Guarantor's
obligations hereunder.
(b) No failure on the part of any Beneficiary to exercise, and no delay
in exercising, any right, remedy, power or privilege hereunder or under any
Credit Document or any other agreement or instrument relating thereto shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder or under any Credit Document or any
other agreement or instrument relating thereto preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
This Guaranty is in addition to and not in limitation of any other rights,
remedies, powers and privileges the Beneficiaries may have by virtue of any
other instrument or agreement heretofore, contemporaneously herewith or
hereafter executed by the Guarantor or any other Person or by applicable law or
otherwise. All rights, remedies, powers and privileges of the Beneficiaries
shall be cumulative and may be exercised singly or concurrently. The rights,
remedies, powers and privileges of the Beneficiaries under this Guaranty against
the Guarantor are not conditional or contingent on any attempt by the
Beneficiaries to exercise any of their rights, remedies, powers or privileges
against any other guarantor or surety or under the Credit Documents or any other
agreement or instrument relating thereto against the Borrower or against any
other Person.
(c) The Guarantor hereby acknowledges and agrees that, until the
Commitments have been terminated and all of the Obligations have been paid in
full in cash, under no circumstances shall it be entitled to be subrogated to
any rights of any Beneficiary in respect of the Obligations performed by it
hereunder or otherwise, and the Guarantor hereby expressly and irrevocably
waives, until the Commitments have been terminated and all of the Obligations
have been paid in full in cash, (i) each and every such right of subrogation and
any claims, reimbursements, right
57
or right of action relating thereto (howsoever arising), and (ii) each and every
right to contribution, indemnification, set-off or reimbursement, whether from
the Borrower or any other Person now or hereafter primarily or secondarily
liable for any of the Obligations, and whether arising by contract or operation
of law or otherwise by reason of the Guarantor's execution, delivery or
performance of this Guaranty.
(d) The Guarantor represents and warrants that it has established
adequate means of keeping itself informed of the Borrower's financial condition
and of other circumstances affecting the Borrower's ability to perform the
Obligations, and agrees that neither the Administrative Agent nor any Lender
shall have any obligation to provide to the Guarantor any information it may
have, or hereafter receive, in respect of the Borrower.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. NOTICES. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to any Credit Party, to it at:
000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Treasurer
Telecopier: (000) 000-0000;
with a copy to such Credit Party at:
000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Director Corporate Finance and Treasury
Telecopier: (000) 000-0000;
(b) if to the Administrative Agent or the LC Bank, to Barclays
Bank PLC at:
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Sydney X. Xxxxxx, Power and Utilities Group
Telecopier: (000) 000-0000
with a copy to such party at:
58
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxx, Customer Service Unit
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(c) if to any Lender or Swingline Lender, to it at its address (or
telecopy number) set forth in its Administrative Questionnaire.
Any Party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.
SECTION 11.02. WAIVERS; AMENDMENTS. (a) No failure or delay by the
Administrative Agent, the LC Bank or any Lender in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent, the LC Bank and the Lenders hereunder are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of this Agreement or consent to any departure by any
Credit Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, no Extension of Credit
shall be construed as a waiver of any Default, regardless of whether the
Administrative Agent, the LC Bank or any Lender may have had notice or knowledge
of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower, the Guarantor and the Required Lenders or by the
Borrower, the Guarantor and the Administrative Agent with the consent of the
Required Lenders; provided that no such agreement shall (i) increase the
Commitment of any Lender without the written consent of such Lender, (ii) reduce
the principal amount of any Loan or reduce the rate of interest thereon, or
reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the scheduled date of payment of the principal
amount of any Loan, or any interest thereon, or any fees payable hereunder, or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the written consent of
each Lender affected thereby, (iv) change Section 2.18(b) or (c) in a manner
that would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, (v) release the Guarantor from its obligations
under the Guaranty, or (vi) change any of the provisions of this Section or the
definition of "Required Lenders" or any other provision hereof specifying the
number or percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender; provided, further, that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent or the LC Bank hereunder without the prior written consent of the
Administrative Agent or the LC Bank, as the case may be.
59
SECTION 11.03. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the initial syndication of the credit facilities provided for herein, the
preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the LC Bank, including the
reasonable fees, charges and disbursements of counsel for the LC Bank, in
connection with the execution, delivery, administration, modification and
amendment of any Letters of Credit to be issued by it hereunder, and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, the LC Bank or any
Lender, including the fees, charges and disbursements of any counsel for the
Administrative Agent, the LC Bank or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made
and Letters of Credit issued hereunder, including in connection with any
workout, restructuring or negotiations in respect thereof.
(b) The Borrower shall indemnify the Administrative Agent, the
Syndication Agent, each Co-Documentation Agent, the LC Bank, each Lender and
Swingline Lender, and each Related Party of any of the foregoing Persons (each
such Person being called an "INDEMNITEE") against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transaction contemplated hereby, (ii) any Loan
or Letter of Credit or the use of the proceeds therefrom, (iii) any actual or
alleged presence or release of Hazardous Materials on or from any property now,
in the past or hereafter owned or operated by the Borrower, the Guarantor or any
of its other Subsidiaries, or any Environmental Liability related in any way to
the Borrower, the Guarantor or any of its other Subsidiaries, or (iv) any actual
or prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required to
be paid by it to the Administrative Agent or the LC Bank under paragraph (a) or
(b) of this Section, each Lender severally agrees to pay to the Administrative
Agent or the LC Bank such Lender's Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent or the LC Bank in its capacity as
such.
60
(d) To the extent permitted by applicable law, each party hereto shall
not assert, and hereby waives, any claim against each other party, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a
result of, this Agreement or any agreement or instrument contemplated hereby,
the Transactions or any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later than
20 days after written demand therefor.
SECTION 11.04. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that no
Credit Party may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender and the LC Bank (and
any attempted assignment or transfer by a Credit Party without such consent
shall be null and void). Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may, in consultation with the Borrower (except in the
case of an assignment to a Lender or an Affiliate of a Lender), assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at the
time owing to it); provided that (i) except in the case of an assignment to a
Lender or an Affiliate of a Lender, each of the Administrative Agent and the LC
Bank must give its prior written consent to such assignment (which consent, in
the case of the Administrative Agent, shall not unreasonably be withheld and, in
the case of the LC Bank, may be given or withheld in the sole discretion of the
LC Bank), (ii) except in the case of an assignment to a Lender or an Affiliate
of a Lender or an assignment of the entire remaining amount of the assigning
Lender's Commitment, the amount of the Commitment of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $10,000,000 unless each of the Borrower and the
Administrative Agent otherwise consent, (iii) each partial assignment shall be
made as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement and the Other Credit Agreement, (iv)
the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a processing and recordation
fee of $3,500, and (v) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire; provided, further,
that any consent of the Borrower otherwise required under this paragraph shall
not be required if an Event of Default under clause (f) or (g) of Article VIII
has occurred and is continuing. Upon acceptance and recording pursuant to
paragraph (d) of this Section, from and after the effective date specified in
each Assignment and Acceptance, the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and
61
obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17
and 11.03), any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this paragraph shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "REGISTER"). The entries in the Register shall be
conclusive (absent manifest error), and the Borrower, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "PARTICIPANT") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrower, the Guarantors and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 11.02(b) that affects such
Participant. Subject to paragraph (f) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and
2.17 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.15 or 2.17 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender
62
if it were a Lender shall not be entitled to the benefits of Section 2.17 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.17(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to a Federal Reserve Bank,
and this Section shall not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute any
such assignee for such Lender as a party hereto.
(h) Anything herein to the contrary notwithstanding, each Lender (the
"GRANTING LENDER") shall have the right, without the prior consent of the
Borrower, to grant to a special purpose funding vehicle (the "SPFV") that is
utilized by such Granting Lender, identified as such in writing from time to
time by the Granting Lender to the Administrative Agent and the Borrower, the
option to provide all or any part of any Loan that such Granting Lender would
otherwise be obligated to make hereunder, provided that (i) nothing herein shall
constitute a commitment to make any Loan by any SPFV or shall relieve its
Granting Lender of any obligation of such Granting Lender hereunder or under any
other Credit Document, except to the extent that such SPFV actually funds all or
part of any Loan such Granting Lender is obligated to make hereunder, (ii) if an
SPFV elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, such Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof, (iii) the Granting Lender hereby indemnifies and
holds the Administrative Agent harmless from and against any liability, loss,
cost or expense (including for or in respect of Taxes) arising out of such
identification and grant or any transaction contemplated thereby, and (iv) the
provisions of this paragraph (h) shall not impose any increased cost or
liability on any Credit Party. The making of a Loan by an SPFV hereunder shall
utilize the Commitment of its Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. Each party hereto agrees that no
SPFV shall be liable for any payment under this Agreement or any other Credit
Document for which a Lender would otherwise be liable, for so long as, and to
the extent that, its Granting Lender makes such payment. As to any Loans or
portions of Loans made by it, each SPFV shall have all the rights that a Lender
making such Loans or such portions of Loans would have had under this Agreement
and otherwise; provided that (1) its voting rights under this Agreement shall be
exercised solely by its Granting Lender and (2) its Granting Lender shall remain
solely responsible to the other parties hereto for the performance of such
SPFV's obligations under this Agreement, including its obligations in respect of
the Loans or portions of Loans made by it. No additional Notes, if any, shall be
required to evidence the Loans or portions of Loans made by a SPFV; and the
Granting Lender shall be deemed to hold its Note, if any, as agent for its SPFV
to the extent of the Loans or portions of Loans funded by such SPFV. Each
Granting Lender shall act as administrative agent for its SPFV and give and
receive notices and other communications on its behalf. Any payments for the
account of any SPFV shall be paid to its Granting Lender as administrative agent
for such SPFV, and neither any Credit Party nor the Administrative Agent shall
be responsible for any Granting Lender's application of such payments. In
furtherance of the foregoing, each party hereto hereby agrees that, until the
date that is one year and one day after the payment in full of all outstanding
senior Debt of any SPFV, it shall not institute against, or join any other
Person in instituting against, such SPFV any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings (or any similar proceedings)
under the laws
63
of the United States of America or any State thereof. In addition,
notwithstanding anything to the contrary contained in this paragraph (h), an
SPFV may (1) (A) with notice to, but without the prior written consent of, the
Administrative Agent or the Borrower and without paying any processing fee
therefor, assign all or any portion of its interest in any Loan to its Granting
Lender or (B) with the consent (which consent shall not be unreasonably
withheld) of the Administrative Agent and (if no Event of Default has occurred
and is continuing) the Borrower, but without paying any processing fee therefor,
assign all or any portion of its interest in any Loan to any financial
institution providing liquidity or credit facilities to or for the account of
such SPFV to fund the Loans funded by such SPFV or to support any securities
issued by such SPFV to fund such Loans, and (2) disclose, on a confidential
basis, any non-public information relating to Loans funded by it to any rating
agency, commercial paper dealer or provider of a surety, guaranty or credit or
liquidity enhancement to such SPFV. The Borrower shall not be required to pay,
or to reimburse any Granting Lender for, its expenses relating to any SPFV
identified by such Granting Lender pursuant to this paragraph (h).
SECTION 11.05. SURVIVAL. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans. The provisions of Sections 2.15, 2.16, 2.17 and 11.03 and Article IX
shall survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby, the repayment of the Loans, the
expiration or termination of the Commitments or the termination of this
Agreement or any provision hereof.
SECTION 11.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement, the
commitment letter relating to the credit facility provided hereby (to the extent
provided therein) and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 3.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 11.07. SEVERABILITY. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 11.08. RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, each Lender or the LC Bank or any Affiliate of
either is hereby authorized at any
64
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such
Lender to or for the credit or the account of any Credit Party against any of
and all the Obligations now or hereafter existing under this Agreement held by
such Lender or the LC Bank, irrespective of whether or not such Lender or the LC
Bank shall have made any demand under this Agreement and although such
Obligations may be unmatured. The rights of each Lender and the LC Bank under
this Section are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
SECTION 11.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS.
(a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York, without regard to principles of conflicts
of law.
(b) Each Credit Party hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against any Credit Party or its properties in the courts of any
jurisdiction.
(c) Each Credit Party hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 11.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 11.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
65
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 11.11. HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 11.12. CONFIDENTIALITY. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any assignee of
or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Borrower
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than a Credit Party or any Subsidiary of a Credit Party. For the purposes
of this Section, "INFORMATION" means all information received from any Credit
Party or any Subsidiary of a Credit Party relating to a Credit Party or any
Subsidiary of a Credit Party or their respective businesses, other than any such
information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by any Credit Party or any Subsidiary
of a Credit Party; provided that, in the case of information received from any
Credit Party or any Subsidiary of a Credit Party after the Effective Date, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
NISOURCE FINANCE CORP., as Borrower
By: /s/ Xxxxxx X. XxXxxxxxx
--------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Vice President
NISOURCE INC., as Guarantor
By: /s/ Xxxxxx X. XxXxxxxxx
--------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Vice President
Signature Page to
364-Day Credit Agreement
S-2
BARCLAYS BANK PLC, as a Lead Arranger and
Lender, as Swingline Lender, as LC Bank and
as Administrative Agent
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
Signature Page to
364-Day Credit Agreement
S-3
CREDIT SUISSE FIRST BOSTON, as a Lead
Arranger and Lender and as Syndication Agent
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxx Xxxxx
-----------------------------------------
Name: Xxx Xxxxx
Title: Director
Signature Page to
364-Day Credit Agreement
Annex A
PRICING GRID
The "Applicable Rate" for any day with respect to any Eurodollar Loan,
ABR Loan, Facility Fee, Utilization Fee or LC Risk Participation Fee, as the
case may be, is the percentage set forth below in the applicable row under the
column corresponding to the Status that exists on such day:
Status Level I Level II Level III Level IV Level V Level VI
------------------------- ------- -------- --------- -------- ------- --------
Eurodollar Revolving
Loans/Eurodollar
Term Loans
(basis points) 47.5 57.5 72.5 100.0 115.0 140.0
ABR Loans
(basis points) 0 0 0 0 15.0 40.0
Facility Fee (basis
points) 10 12.5 15 25 40 50
Utilization Fee (basis
points) 15.0 15.0 15.0 15.0 15.0 15.0
LC Risk Participation Fee
(basis points) 47.5 57.5 72.5 100.0 115.0 140.0
For purposes of this Pricing Grid, the following terms have the
following meanings (as modified by the provisos below):
"LEVEL I STATUS" exists at any date if, at such date, the Index Debt is
rated either A- or higher by S&P or A3 or higher by Xxxxx'x.
"LEVEL II STATUS" exists at any date if, at such date, the Index Debt
is rated either BBB+ by S&P or Baa1 by Xxxxx'x.
"LEVEL III STATUS" exists at any date if, at such date, the Index Debt
is rated either BBB by S&P or Baa2 by Xxxxx'x.
"LEVEL IV STATUS" exists at any date if, at such date, the Index Debt
is rated either BBB- by S&P or Baa3 by Xxxxx'x.
"LEVEL V STATUS" exists at any date if, at such date, the Index Debt is
rated either BB+ or lower by S&P or Ba1 or lower by Xxxxx'x.
"LEVEL VI STATUS" exists at any date if, at such date, no other Status
exists.
"STATUS" refers to the determination of which of Level I Status, Level
II Status, Level III Status, Level IV Status, Level V Status or Level VI Status
exists at any date.
The credit ratings to be utilized for purposes of this Pricing Grid are those
assigned to the Index Debt, and any rating assigned to any other debt security
of the Borrower shall be disregarded. The rating in effect at any date is that
in effect at the close of business on such date.
Provided, that the applicable Status shall change as and when the applicable
Index Debt ratings change.
Provided further, that if the Index Debt is split-rated, the applicable Status
shall be determined on the basis of the higher of the two ratings then
applicable; provided further, that, if such higher rating is BBB-/Baa3 or lower,
the applicable Status shall instead be determined on the basis of the lower of
the two ratings then applicable.
Provided further, that if both Xxxxx'x and S&P, or their successors as
applicable, shall have ceased to issue or maintain such ratings, then the
applicable Status shall be Level VI.
Annex A-2
