EXHIBIT (4)(ii)(A)
[EXECUTION COPY]
$125,000,000
TERM LOAN AGREEMENT
Dated as of November 21, 1995,
Among
CMS ENERGY CORPORATION
as Borrower
and
THE BANKS NAMED HEREIN
as Banks
and
CITIBANK, N.A. and
UNION BANK
as Co-Agents
(i)
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. . 5
SECTION 1.02. Computation of Time Periods 14
SECTION 1.03. Accounting Terms . . . . 14
ARTICLE II
COMMITMENTS
SECTION 2.01. The Commitments. . . . . 14
SECTION 2.02. Fees . . . . . . . . . . 14
SECTION 2.03. Reduction of the Commitments 14
SECTION 2.04. Computations of Outstandings 15
ARTICLE III
ADVANCES
SECTION 3.01. Advances . . . . . . . . 15
SECTION 3.02. Conversion of Advances . 16
SECTION 3.03. Interest Periods . . . . 16
SECTION 3.04.Other Terms Relating to the Making and Conversion
of Advances. . . . . . . . . . 16
SECTION 3.05. Repayment of Advances. . 18
ARTICLE IV
PAYMENTS, COMPUTATIONS AND
YIELD PROTECTION
SECTION 4.01. Payments and Computations 18
SECTION 4.02. Interest Rate Determination 19
SECTION 4.03. Prepayments. . . . . . . 19
SECTION 4.04. Yield Protection . . . . 20
SECTION 4.05. Sharing of Payments, Etc. 21
SECTION 4.06. Taxes. . . . . . . . . . 21
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to the Drawdown 22
SECTION 5.02. Conditions Precedent to Each Conversion 23
SECTION 5.03. Reliance on Certificates 24
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties of the Borrower 24
ARTICLE VII
COVENANTS OF THE BORROWER
SECTION 7.01. Affirmative Covenants. . 26
SECTION 7.02. Negative Covenants . . . 27
SECTION 7.03. Reporting Obligations. . 30
ARTICLE VIII
DEFAULTS
SECTION 8.01. Events of Default. . . . 32
SECTION 8.02. Remedies . . . . . . . . 33
ARTICLE IX
THE AGENTS
SECTION 9.01. Authorization and Action 33
SECTION 9.02. Agents' Reliance, Etc. . 34
SECTION 9.03. Citibank, Union Bank and Affiliates 34
SECTION 9.04. Lender Credit Decision . 34
SECTION 9.05. Indemnification. . . . . 34
SECTION 9.06. Successor Agents . . . . 35
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc.. . . . 35
SECTION 10.02. Notices, Etc. . . . . . 35
SECTION 10.03. No Waiver of Remedies . 36
SECTION 10.04. Costs, Expenses and Indemnification 36
SECTION 10.05. Right of Set-off. . . . 37
SECTION 10.06. Binding Effect. . . . . 37
SECTION 10.07. Assignments and Participation 37
SECTION 10.08. Confidentiality . . . . 39
SECTION 10.09. Waiver of Jury Trial. . 40
SECTION 10.10. Governing Law . . . . . 40
SECTION 10.11. Relation of the Parties; No Beneficiary 40
SECTION 10.12. Execution in Counterparts 40
SECTION 10.13. Survival of Agreement . 40
v
EXHIBITS
EXHIBIT A - Form of Note
EXHIBIT B - Form of Notice of Borrowing
EXHIBIT C - Form of Notice of Conversion
EXHIBIT D - Form of Opinion of Xxxxxx X. Sturdy, Esq.,
Counsel of the Borrower
EXHIBIT E - Form of Opinion of King & Spalding, Counsel to the Agents
EXHIBIT F - Form of Compliance Schedule
EXHIBIT G - Form of Lender Assignment
SCHEDULES
SCHEDULE I Applicable Lending Offices
SCHEDULE II Certain Debt
TERM LOAN AGREEMENT
Dated as of November 21, 1995
THIS TERM LOAN AGREEMENT is made by and among:
(i)CMS Energy Corporation, a Michigan corporation (the "Borrower"),
(ii)the banks (the "Banks") listed on the signature pages hereof and
the other Lenders (as hereinafter defined) from time to time
party hereto,
(iii)Citibank, N.A. ("Citibank") and Union Bank ("Union Bank"), as
co-administrative agents (individually a "Co-Agent" and
collectively, the "Co-Agents") for the Lenders hereunder,
(iv)Citibank, as documentation agent (the "Documentation Agent) for
the Lenders hereunder,
(v)Union Bank, as operational agent (the "Operational Agent") for
the Lenders hereunder, and
(vi)Bank of America Illinois, BZW Division of Barclays Bank PLC, The
Chase Manhattan Bank, N.A., The First National Bank of Boston
and The First National Bank of Chicago, as co-managers
(individually, the "Co-Manager" and, collectively, the "Co-
Managers").
PRELIMINARY STATEMENTS
The Borrower has requested the Banks to provide the credit facility
hereinafter described in the amounts and on the terms and conditions set
forth herein. The Banks have so agreed on the terms and conditions set
forth herein, and the Agents have agreed to act as agents for the Lenders
on such terms and conditions.
The parties hereto acknowledge and agree that neither Consumers (as
hereinafter defined) nor any of its Subsidiaries (as hereinafter defined)
will be a party to, or will in any way be bound by any provision of, this
Agreement or any other Loan Document (as hereinafter defined), and that no
Loan Document will be enforceable against Consumers or any of its
Subsidiaries or their respective assets.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be
applicable to the singular and plural forms of the terms defined):
"Advance" means an Advance by a Lender to the Borrower pursuant
to Section 3.01, and refers to a Base Rate Advance or a Eurodollar
Rate Advance (each of which shall be a "Type" of Advance). All
Advances by a Lender of the same Type, having the same Interest
Period and made or Converted on the same day shall be deemed to be a
single Advance by such Lender until repaid or next Converted.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all
directors and officers of such Person), controlled by, or under
direct or indirect common control with such Person. A Person shall
be deemed to control another entity if such Person possesses,
directly or indirectly, the power to direct or cause the direction of
the management and policies of such entity, whether through the
ownership of voting securities, by contract, or otherwise.
"Agent" means, as the context may require, the Co-Agents, the
Operational Agent or the Documentation Agent; and "Agents" means any
or all of the foregoing.
"Alternate Base Rate" means a fluctuating interest rate per
annum equal at all times to the highest of:
(a) the rate of interest announced publicly by Union Bank
in Los Angeles, California, from time to time, as the Union Bank
Reference Rate;
(b) 1/2 of one percent per annum above the latest
three-week moving average of secondary market morning offering
rates in the United States for three-month certificates of
deposit of major United States money market banks, such
three-week moving average being determined weekly by the
Operational Agent on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal
Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such
rates received by the Operational Agent from three New York
certificate of deposit dealers of recognized standing selected
by the Operational Agent, in either case adjusted to the nearest
1/4 of one percent or, if there is no nearest 1/4 of one
percent, to the next higher 1/4 of one percent; and
(c) 1/2 of one percent per annum above the Federal Funds
Rate.
Each change in the Alternate Base Rate shall take effect concurrently
with any change in such base rate, moving average, or Federal Funds
Rate.
"Applicable Lending Office" means, with respect to each Lender,
(i) such Lender's Domestic Lending Office, in the case of a Base Rate
Advance, and (ii) such Lender's Eurodollar Lending Office, in the
case of a Eurodollar Rate Advance.
"Applicable Margin" means, on any date of determination, (i) for
a Base Rate Advance, 0.25% per annum, and (ii) for a Eurodollar Rate
Advance, 1.75% per annum.
Notwithstanding the foregoing, (i) the foregoing Applicable Margin
applicable to Base Rate Advances shall be increased by 0.50% per
annum in the event that, and at all times during which, the Senior
Notes shall be rated BB- (or its equivalent) or lower by (A) any
three of S&P, Fitch, Xxxxx'x and D&P, or (B) both S&P and Moody's,
(ii) the foregoing Applicable Margin applicable to Eurodollar Rate
Advances shall be increased by 0.25% per annum in the event that, and
at all times during which, the Senior Notes shall be rated BB- (or
its equivalent) or lower by (A) any three of S&P, Fitch, Xxxxx'x and
D&P, or (B) both S&P and Moody's, and (iii) the foregoing Applicable
Margin applicable to Eurodollar Rate Advances shall be decreased by
0.25% per annum in the event that, and at all times during which, the
Senior Notes shall be rated BBB- (or its equivalent) or higher by (x)
any three of S&P, Fitch, Xxxxx'x and D&P, or (y) both S&P and
Moody's. The Applicable Margins shall be increased or decreased in
accordance with this definition upon any change in the applicable
ratings, and such increased or decreased Applicable Margins shall be
effective from the date of announcement of any such new ratings. The
Borrower agrees to notify the Operational Agent promptly after each
change in any rating of the Senior Notes. For purposes of this
definition only, if the Senior Notes shall no longer be outstanding
or shall no longer be rated by any three of S&P, Fitch, Xxxxx'x and
D&P or by both Moody's and S&P, "Senior Notes" shall mean such other
senior unsecured Debt of the Borrower that is both outstanding and so
rated. In the event that no Senior Notes are outstanding and so
rated, the Applicable Margins will be such amounts as may be mutually
agreed by the Borrower and all the Lenders.
"Applicable Rate" means:
(i) in the case of each Base Rate Advance, a rate per
annum equal at all times to the sum of the Alternate Base Rate
in effect from time to time plus the Applicable Margin in effect
from time to time; and
(ii) in the case of each Eurodollar Rate Advance comprising
part of the same Borrowing, a rate per annum during each
Interest Period equal at all times to the sum of the Eurodollar
Rate for such Interest Period plus the Applicable Margin in
effect from time to time during such Interest Period.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 3.05(b)(i).
"Borrowing" means a borrowing consisting of Advances of the same
Type, having the same Interest Period and made or Converted on the
same day by the Lenders, ratably in accordance with their respective
Percentages. Any Borrowing consisting of Advances of a particular
Type may be referred to as being a Borrowing of such "Type". All
Advances of the same Type, having the same Interest Period and made
or Converted on the same day shall be deemed a single Borrowing
hereunder until repaid or next Converted.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City, Los Angeles,
California and Detroit, Michigan, and, if the applicable Business Day
relates to any Eurodollar Rate Advance, on which dealings are carried
on in the London interbank market.
"Cash Dividend Income" means, for any period, the amount of all
cash dividends received by the Borrower from its Subsidiaries during
such period that are paid out of the net income (without giving
effect to any extraordinary gains in excess of $5,000,000) of such
Subsidiaries during such period; provided, however, that for the
fiscal year ending December 31, 1995, "Cash Dividend Income" shall
also include an amount equivalent to 80% of Consumers' consolidated
net income for such year to the extent that such consolidated net
income has not been paid in cash dividends by Consumers to the
Borrower.
"Closing Date" means the date upon which each of the conditions
precedent enumerated in Section 5.01 has been fulfilled to the
satisfaction of the Lenders, the Co-Agents and the Borrower. All
transactions contemplated by the Closing Date shall take place on or
before November 21, 1995, at the offices of King & Spalding, 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M., or such other
time as the parties hereto may mutually agree.
"Commitment" means, for each Lender, the obligation of such
Lender to make Advances to the Borrower in an aggregate amount no
greater than the amount set forth opposite such Lender's name on the
signature pages hereof or, if such Lender has entered into one or
more Lender Assignments, set forth for such Lender in the Register
maintained by the Documentation Agent pursuant to Section 10.07(c),
in each such case as such amount may be reduced from time to time
pursuant to Section 2.03. "Commitments" means the total of the
Lenders' Commitments hereunder. The Commitments shall in no event
exceed$125,000,000 million.
"Confidential Information" has the meaning assigned to that term
in Section 10.08.
"Consolidated Capital" means, at any date of determination, the
sum of (a) Consolidated Debt, (b) consolidated equity of the common
stockholders of the Borrower and the Consolidated Subsidiaries,
(c) consolidated equity of the preference stockholders of the
Borrower and the Consolidated Subsidiaries, and (d) consolidated
equity of the preferred stockholders of the Borrower and the
Consolidated Subsidiaries, in the case of clauses (b) through (d)
above, determined at such date in accordance with GAAP; provided,
however, that Consolidated Capital shall include Project Finance
Equity of the Borrower and the Consolidated Subsidiaries in any
Consolidated Subsidiary only to the extent of the Borrower's
Ownership Interest in such Consolidated Subsidiary.
"Consolidated Debt" means, without duplication, at any date of
determination, the sum of the aggregate Debt of the Borrower plus the
aggregate debt (as such term is construed in accordance with GAAP) of
the Consolidated Subsidiaries, provided, however, that Consolidated
Debt shall not include any Support Obligation described in clause
(iv) or (v) of the definition thereof if such Support Obligation or
the primary obligation so supported is not fixed or conclusively
determined or is not otherwise reasonably quantifiable as of the date
of determination; provided, further, that for purposes of this
definition only, Debt of the Borrower shall (a) include only 50% of
the aggregate principal amount of Subordinated Debt and Preferred
Securities described in clause (b) of the definition thereof, subject
to a maximum exclusion of $100,000,000 in the aggregate, and (b) not
include Subordinated Debt or Preferred Securities if such
Subordinated Debt or Preferred Securities, as the case may be, is
mandatorily convertible into common stock of the Borrower upon terms
and conditions satisfactory to the Majority Lenders; and provided,
further, that for purposes of this definition only, debt of any
Consolidated Subsidiary shall include Project Finance Debt of such
Consolidated Subsidiary only to the extent of the Borrower's
Ownership Interest in such Consolidated Subsidiary.
"Consolidated Subsidiary" means any Subsidiary whose accounts
are or are required to be consolidated with the accounts of the
Borrower in accordance with GAAP.
"Consumers" means Consumers Power Company, a Michigan
corporation, all of whose common stock is on the date hereof owned by
the Borrower.
"Consumers Dividend Restriction" means any restriction enacted
or imposed after October 1, 1992 upon the ability of Consumers to pay
cash dividends to the Borrower in respect of Consumers' capital
stock, whether such restriction is imposed by statute, regulation,
decisions or rulings by the Michigan Public Service Commission or the
Federal Energy Regulatory Commission (or any successor agency or
agencies), final judgments of any court of competent jurisdiction,
indentures, agreements, contracts or restrictions to which Consumers
is a party or by which it is bound or otherwise; provided, that no
restriction on such dividends existing on October 1, 1992 shall be a
Consumers Dividend Restriction at any time.
"Conversion", "Convert" or "Converted" refers to a conversion of
Advances of one Type into Advances of another Type, or to the
selection of a new, or the renewal of the same, Interest Period for
Advances, as the case may be, pursuant to Section 3.02.
"D&P" means Duff & Xxxxxx, Inc. or any successor thereto.
"Debt" means, for any Person, without duplication, any and all
indebtedness, liabilities and other monetary obligations of such
Person (whether for principal, interest, fees, costs, expenses or
otherwise, and whether contingent or otherwise) (i) for borrowed
money or evidenced by bonds, debentures, notes or other similar
instruments, (ii) 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), (iii) as lessee under
leases which shall have been or should be, in accordance with GAAP,
recorded as capital leases, (iv) under reimbursement or similar
agreements with respect to letters of credit issued thereunder, (v)
under any interest rate swap, "cap", "collar" or other hedging
agreements; provided, however, for purposes of the calculation of
Debt for this clause (v) only, the actual amount of Debt of such
Person shall be determined on a net basis to the extent such
agreements permit such amounts to be calculated on a net basis, (vi)
to pay rent or other amounts under leases entered into in connection
with sale and leaseback transactions involving assets of such Person
being sold in connection therewith, (vii) arising from any
accumulated funding deficiency (as defined in Section 412(a) of the
Internal Revenue Code of 1986, as amended) for a Plan, and
(viii) arising from (A) direct or indirect guaranties in respect of,
and obligations to purchase or otherwise acquire, or otherwise to
warrant or hold harmless, pursuant to a legally binding agreement, a
creditor against loss in respect of, Debt of others referred to in
clauses (i) through (vii) above and (B) other guaranty or similar
financial obligations in respect of the performance of others,
including, without limitation, Support Obligations.
"Default Rate" means a rate per annum equal at all times to the
higher of (i) 2% per annum above the higher, from time to time, of
(A) the Applicable Rate for Eurodollar Rate Advances immediately
prior to such Default Rate becoming applicable and (B) the Applicable
Rate in effect from time to time for Base Rate Advances, and (ii) the
highest rate per annum payable pursuant to the Indenture with respect
to any principal amount of the Senior Notes that is not paid when
due.
"Dividend Coverage Ratio" means, at any date, the ratio of (i)
Pro Forma Dividend Amounts to (ii) Issuer Interest Expense, as such
terms are defined in the Indenture as in effect on the date hereof.
"Dollars" and the sign "$" each means lawful money of the United
States.
"Domestic Lending Office" means, with respect to any Lender, the
office or affiliate of such Lender specified as its "Domestic Lending
Office" opposite its name on Schedule I hereto or in the Lender
Assignment pursuant to which it became a Lender, or such other office
or affiliate of such Lender as such Lender may from time to time
specify in writing to the Borrower and the Operational Agent.
"Drawdown" shall mean the Borrowing made on the Closing Date,
in an aggregate amount not to exceed the Commitments on such date.
"Eligible Assignee" means (a) a commercial bank or trust company
organized under the laws of the United States, or any State thereof;
(b) a commercial bank organized under the laws of any other country
that is a member of the OECD, or a political subdivision of any such
country, provided that such bank is acting through a branch or agency
located in the United States; (c) the central bank of any country
that is a member of the OECD; and (d) any other commercial bank or
other financial institution engaged generally in the business of
extending credit or purchasing debt instruments; provided, however,
that (A) any such Person shall also (i) have outstanding unsecured
indebtedness that is rated A- or better by S&P or A3 or better by
Moody's (or an equivalent rating by another nationally-recognized
credit rating agency of similar standing if neither of such
corporations is then in the business of rating unsecured indebtedness
of entities engaged in such businesses) or (ii) have combined capital
and surplus (as established in its most recent report of condition to
its primary regulator) of not less than $250,000,000 (or its
equivalent in foreign currency), (B) any Person described in clause
(b), (c), or (d) above, shall, on the date on which it is to become a
Lender hereunder, (1) be entitled to receive payments hereunder
without deduction or withholding of any United States Federal income
taxes (as contemplated by Section 4.06) and (2) not be incurring any
losses, costs or expenses of the type for which such Person could
demand payment under Section 4.04(a) or (d) (except to the extent
that, in the absence of the making of an assignment to such Person,
the assigning Lender would have incurred an equal or greater amount
of such losses, costs or expenses and such losses, costs or expenses
would have been payable by the Borrower to such assigning Lender
hereunder) and (C) any Person described in clause (d) above shall, in
addition, be acceptable to the Co-Agents.
"Enterprises" means CMS Enterprises Company, a Michigan
corporation, all of whose common stock is on the date hereof owned by
the Borrower.
"Enterprises Significant Subsidiary" means Nomeco,
CMS Generation Co., CMS Gas Transmission and Storage Company and any
other direct subsidiary of Enterprises having a net worth in excess
of $50 million.
"Equity Distributions" shall mean, for any period, the aggregate
amount of cash received by the Borrower from its Subsidiaries during
such period that are paid out of proceeds from the sale of common
equity of Subsidiaries of the Borrower.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means, with respect to any Person, any trade
or business (whether or not incorporated) that is a "commonly
controlled entity" within the meaning of the regulations under
Section 414 of the Internal Revenue Code of 1986, as amended.
"Eurocurrency Liabilities" has the meaning assigned to that term
in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office or affiliate of such Lender specified as its "Eurodollar
Lending Office" opposite its name on Schedule I hereto or in the
Lender Assignment pursuant to which it became a Lender (or, if no
such office or affiliate is specified, its Domestic Lending Office),
or such other office or affiliate of such Lender as such Lender may
from time to time specify in writing to the Borrower and the
Operational Agent.
"Eurodollar Rate" means, for each Interest Period for each
Eurodollar Rate Advance made as part of the same Borrowing, an
interest rate per annum equal to the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average is
not such a multiple) of the rate per annum at which deposits in U.S.
dollars are offered by the principal office of each of the Reference
Banks in London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before the first
day of such Interest Period in an amount substantially equal to such
Reference Bank's Eurodollar Rate Advance made as part of such
Borrowing and for a period equal to such Interest Period. The
Eurodollar Rate for the Interest Period for each Eurodollar Rate
Advance made as part of the same Borrowing shall be determined by the
Operational Agent on the basis of applicable rates furnished to and
received by the Operational Agent from the Reference Banks two
Business Days before the first day of such Interest Period, subject,
however, to the provisions of Sections 3.04(c) and 4.02.
"Eurodollar Rate Advance" means an Advance that bears interest
as provided in Section 3.05(b)(ii).
"Eurodollar Reserve Percentage" of any Lender for each Interest
Period for each Eurodollar Rate Advance 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 Regulation D or other
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (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 specified in Section 8.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Existing Agreement" means the Credit Agreement, dated as of
July 29, 1994, among the Borrower, the lenders named therein, the Co-
Agents, the Documentation Agent and the Operational Agent.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day on such
transactions received by the Operational Agent from three Federal
funds brokers of recognized standing selected by the Operational
Agent.
"Fee Letter" has the meaning assigned to that term in
Section 2.02(b).
"Fitch" means Fitch's Investors Services or any successor
thereto.
"GAAP" has the meaning assigned to that term in Section 1.03.
"Governmental Approval" means any authorization, consent,
approval, license, permit, certificate, exemption of, or filing or
registration with, any governmental authority or other legal or
regulatory body, required in connection with the execution, delivery,
or performance of any Loan Document by the Borrower.
"Hazardous Substance" means any waste, substance, or material
identified as hazardous, dangerous or toxic by any office, agency,
department, commission, board, bureau, or instrumentality of the
United States or of the State or locality in which the same is
located having or exercising jurisdiction over such waste, substance
or material.
"Indemnified Person" has the meaning assigned to that term in
Section 10.04(b).
"Indenture" means that certain Indenture, dated as of
September 15, 1992, between the Borrower and the Trustee, as
supplemented by the First Supplemental Indenture, dated as of October
1, 1992, and the Second Supplemental Indenture, dated as of October
1, 1992, as said Indenture may be further amended or otherwise
modified from time to time in accordance with its terms.
"Interest Period" has the meaning assigned to that term in
Section 3.03.
"Lender Assignment" means an assignment and agreement entered
into by a Lender and an Eligible Assignee, and accepted by the
Documentation Agent, in substantially the form of Exhibit G.
"Lenders" means the Banks listed on the signature pages hereof,
each Eligible Assignee that shall become a party hereto pursuant to
Section 10.07.
"Lien" has the meaning assigned to that term in Section 7.02(a).
"Loan Documents" means this Agreement, the Notes, the Fee Letter
and all other agreements, instruments and documents now or hereafter
executed and/or delivered pursuant hereto or thereto.
"Majority Lenders" means, on any date of determination, Lenders
that, collectively, on such date (i) have Percentages in the
aggregate of at least 66-2/3% and (ii) if the Commitments have been
terminated, hold at least 66-2/3% of the then aggregate unpaid
principal amount of the Advances owing to Lenders. Any determination
of those Lenders constituting the Majority Lenders shall be made by
the Co-Agents and shall be conclusive and binding on all parties
absent manifest error.
"Measurement Quarter" has the meaning assigned to that term in
Section 7.01(j).
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor
thereto.
"Net Worth" means, with respect to any Person, the excess of
such Person's total assets over its total liabilities, total assets
and total liabilities each to be determined in accordance with GAAP
consistently applied, excluding, however, from the determination of
total assets (i) goodwill, organizational expenses, research and
development expenses, trademarks, trade names, copyrights, patents,
patent applications, licenses and rights in any thereof, and other
similar intangibles, (ii) cash held in a sinking or other analogous
fund established for the purpose of redemption, retirement or
prepayment of capital stock or Debt, and (iii) any items not included
in clauses (i) or (ii) above, that are treated as intangibles in
conformity with GAAP.
"Nomeco" means NOMECO Oil & Gas Co., a Michigan corporation, all
of whose capital stock is on the date hereof owned by Enterprises.
"Note" means a promissory note of the Borrower payable to the
order of a Lender, in substantially the form of Exhibit A.
"Noteholders" means, collectively, the owners of record from
time to time of the Senior Notes.
"Notice of Borrowing" has the meaning assigned to that term in
Section 3.01(a).
"OECD" means the Organization for Economic Cooperation and
Development.
"Ownership Interest" of the Borrower in any Consolidated
Subsidiary means, at any date of determination, the percentage
determined by dividing (i) the aggregate amount of Project Finance
Equity in such Consolidated Subsidiary owned or controlled, directly
or indirectly, by the Borrower and any other Consolidated Subsidiary
on such date, by (ii) the aggregate amount of Project Finance Equity
in such Consolidated Subsidiary owned or controlled, directly or
indirectly, by all Persons (including the Borrower and the
Consolidated Subsidiaries) on such date. Notwithstanding anything to
the contrary set forth above, if the "Ownership Interest," calculated
as set forth above, 50% or less, such percentage shall be deemed to
equal 0%.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor entity) established under ERISA.
"Percentage" means, for any Lender on any date of determination,
the percentage obtained by dividing such Lender's Commitment on such
day by the total of the Commitments on such date, and multiplying the
quotient so obtained by 100%.
"Permitted Investments" means each of the following so long as
no such Permitted Investment shall have a final maturity later than
six months from the date of investment therein:
(i)direct obligations of the United States, or of any
agency thereof, or obligations guaranteed as to principal and
interest by the United States or any agency thereof;
(ii)certificates of deposit or bankers' acceptances
issued, or time deposits held, or investment contracts
guaranteed, by any Lender, any nationally-recognized securities
dealer or any other commercial bank, trust company, savings and
loan association or savings bank organized under the laws of the
United States, or any State thereof, or of any other country
which is a member of the OECD, or a political subdivision of any
such country, and in each case having outstanding unsecured
indebtedness that (on the date of acquisition thereof) is rated
AA- or better by S&P or Aa3 or better by Xxxxx'x (or an
equivalent rating by another nationally-recognized credit rating
agency of similar standing if neither of such corporations is
then in the business of rating unsecured bank indebtedness);
(iii)obligations with any Lender, any other bank or trust
company described in clause (ii), above, or any nationally-
recognized securities dealer, in respect of the repurchase of
obligations of the type described in clause (i), above, provided
that such repurchase obligations shall be fully secured by
obligations of the type described in said clause (i) and the
possession of such obligations shall be transferred to, and
segregated from other obligations owned by, such Lender, such
other bank or trust company or such securities dealer;
(iv)commercial paper rated (on the date of acquisition
thereof) A-1 or P-1 or better by S&P or Xxxxx'x, respectively
(or an equivalent rating by another nationally-recognized credit
rating agency of similar standing if neither of such
corporations is then in the business of rating commercial
paper); and
(v)any eurodollar certificate of deposit issued by any
Lender or any other commercial bank, trust company, savings and
loan association or savings bank organized under the laws of the
United States, or any State thereof, or of any country which is
a member of the OECD, or a political subdivision of any such
country, and in each case having outstanding unsecured
indebtedness that (on the date of acquisition thereof) is rated
AA- or better by S&P or Aa3 or better by Xxxxx'x (or an
equivalent rating by another nationally-recognized credit rating
agency of similar standing if neither of such corporations is
then in the business of rating unsecured bank indebtedness).
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"Plan" means, with respect to any Person, an employee benefit
plan (other than a Multiemployer Plan) maintained for employees of
such Person or any ERISA Affiliate of such Person and covered by
Title IV of ERISA.
"Plan Termination Event" means, with respect to any Person,
(i) a Reportable Event described in Section 4043 of ERISA and the
regulations issued thereunder (other than a Reportable Event not
subject to the provision for 30-day notice to the PBGC under such
regulations), or (ii) the withdrawal of such Person or any of its
ERISA Affiliates from a Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA, or
(iii) the filing of a notice of intent to terminate a Plan or the
treatment of a Plan under Section 4041 of ERISA, or (iv) the
institution of proceedings to terminate a Plan by the PBGC, or
(v) any other event or condition which is reasonably likely to
constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Plan.
"Preferred Securities" means (a) any preferred securities issued
by a financing entity (i.e., partnership, trust, limited liability
company) used exclusively to raise capital for the Borrower, where
such financing transaction and preferred securities have the
following characteristics:
(i)the financing entity lends substantially all of the
proceeds from the issuance of the preferred securities to the
Borrower in exchange for Subordinated Debt, which preferred
securities contain terms providing for the deferral of interest
payments corresponding to provisions providing for the deferral
of interest payments on the Subordinated Debt; and
(ii)the Borrower makes periodic interest payments on the
Subordinated Debt, which interest payments are in turn used by
the financing entity to make corresponding payments to the
holders of the preferred securities; and
(b)any other preferred securities issued by the Borrower,
provided that (A) the Borrower requests such preferred securities be
treated as "preferred securities" for the purpose of clause (a) of
the second proviso of Consolidated Debt and (B) such preferred
securities are on terms and conditions satisfactory to the Majority
Lenders.
"Project Finance Debt" means Debt of any Person that is non-
recourse to such Person (unless such Person is a special-purpose
entity) and any Affiliate of such Person, other than with respect to
the interest of the holder of such Debt in the collateral, if any,
securing such Debt.
"Project Finance Equity" means, at any date of determination,
consolidated equity of the common, preference and preferred
stockholders of the Borrower and the Consolidated Subsidiaries
relating to any obligor with respect to Project Finance Debt.
"Recipient" has the meaning assigned to that term in Section
10.08.
"Reference Banks" means Citibank, Union Bank and Bank of America
Illinois, or any additional or substitute Lenders as may be selected
from time to time to act as Reference Banks hereunder by the
Operational Agent, the Majority Lenders and the Borrower.
"Register" has the meaning specified in Section 10.07(c).
"Required Lenders" means, on any date of determination, Lenders
that, collectively, on such date (i) hold at least 51% of the then
aggregate unpaid principal amount of the Advances owing to Lenders
and (ii) if no Advances are then outstanding, have Percentages in the
aggregate of at least 51%. Any determination of those Lenders
constituting the Required Lenders shall be made by the Co-Agents and
shall be conclusive and binding on all parties absent manifest error.
"Restricted Subsidiary" means (i) Enterprises and (ii) any other
Subsidiary of the Borrower (other than Consumers and its
Subsidiaries) that, on a consolidated basis with any of its
Subsidiaries as of any date of determination, accounts for more than
10% of the consolidated assets of the Borrower and its Consolidated
Subsidiaries.
"S&P" means Standard & Poor's Rating Group or any successor
thereto.
"Senior Note Debt" means, collectively, all principal
indebtedness of the Borrower to the Noteholders now or hereafter
existing under the Senior Notes, together with interest and premiums,
if any, thereon and other amounts payable in respect thereof or in
connection therewith in accordance with the terms of the Senior Notes
or the Indenture.
"Senior Notes" means the Series A Senior Deferred Coupon Notes
Due 1997 and the Series B Senior Deferred Coupon Notes Due 1999
issued by the Borrower pursuant to the Indenture.
"Subordinated Debt" means, for any Person, unsecured Debt of
such Person (i) issued in exchange for the proceeds of Preferred
Securities and (ii) subordinated to the rights of the Lenders
hereunder and under the Notes on terms and conditions satisfactory to
the Majority Lenders, including, without limitation, (A) terms
providing for the deferral of interest payments on such Debt
corresponding to provisions providing for the deferral of interest
payments on the Preferred Securities and (B) the maturity thereof.
"Subsidiary" means, with respect to any Person, any corporation
or unincorporated entity of which more than 50% of the outstanding
capital stock (or comparable interest) having ordinary voting power
(irrespective of whether at the time capital stock (or comparable
interest) of any other class or classes of such corporation or entity
shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by said
Person (whether directly or through one or more other Subsidiaries).
In the case of an unincorporated entity, a Person shall be deemed to
have more than 50% of interests having ordinary voting power only if
such Person's vote in respect of such interests comprises more than
50% of the total voting power of all such interests in the
unincorporated entity.
"Support Obligations" means, for any Person, without
duplication, any financial obligation, contingent or otherwise, of
such Person guaranteeing or otherwise supporting any Debt or other
obligation of any other Person in any manner, whether directly or
indirectly, and including, without limitation, any obligation of such
Person, direct or indirect, (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Debt or to purchase
(or to advance or supply funds for the purchase of) any security for
the payment of such Debt, (ii) to purchase property, securities or
services for the purpose of assuring the owner of such Debt of the
payment of such Debt, (iii) to maintain working capital, equity
capital, available cash or other financial statement condition of the
primary obligor so as to enable the primary obligor to pay such Debt,
(iv) to provide equity capital under or in respect of equity
subscription arrangements (to the extent that such obligation to
provide equity capital does not otherwise constitute Debt), or (v) to
perform, or arrange for the performance of, any non-monetary
obligations or non-funded debt payment obligations of the primary
obligor.
"Tax Sharing Agreement" means the Agreement for the Allocation
of Income Tax Liabilities and Benefits, dated as of January 1, 1990,
by and among the Borrower, each of the members of the Consolidated
Group (as defined therein), and each of the corporations that become
members of the Consolidated Group.
"Termination Date" means the earlier to occur of (i)
November 30, 2002 and (ii) the date of termination or reduction in
whole of the Commitments pursuant to Section 2.03 or 8.02.
"Trustee" has the meaning assigned to that term in the
Indenture.
"Type" has the meaning assigned to such term (i) in the
definition of "Advance" when used in such context and (ii) in the
definition of "Borrowing" when used in such context.
"Unmatured Default" means an event that, with the giving of
notice or lapse of time or both, would constitute an Event of
Default.
SECTION 1.02. Computation of Time Periods. Unless otherwise
indicated, each reference in this Agreement to a specific time of day is a
reference to New York City time. In the computation of periods of time
under this Agreement, any period of a specified number of days or months
shall be computed by including the first day or month occurring during
such period and excluding the last such day or month. In the case of a
period of time "from" a specified date "to" or "until" a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each means "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with
generally accepted accounting principles consistent with those applied in
the preparation of the financial statements referred to in Section 6.01(e)
("GAAP").
ARTICLE II
COMMITMENTS
SECTION 2.01. The Commitments. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make a single Advance to
the Borrower on the Closing Date and to Convert Advances during the period
from the Closing Date until the Termination Date as provided in
Section 3.02, in each case in an aggregate outstanding amount not to
exceed on any day such Lender's Commitment.
SECTION 2.02. Fees. (a) The Borrower agrees to pay to the
Operational Agent for the account of each Bank a participation fee equal
to .375% of such Bank's Commitment, such fee to be payable on the Closing
Date.
(b)In addition to the fees provided for in subsection (a) above,
the Borrower shall pay to the Operational Agent, for the account of the
Co-Agents, such other fees as are provided for in that certain letter
agreement between the Borrower and the Co-Agents (the "Fee Letter")
entered into separately herefrom and dated the date hereof.
SECTION 2.03. Reduction of the Commitments. (a) The Borrower may,
upon at least five Business Days' notice to each Co-Agent, terminate in
whole or reduce ratably in part the Commitments; provided that any such
partial reduction shall be in the aggregate amount of $10,000,000 or an
integral multiple of $1,000,000 in excess thereof.
(b)On each date that the Borrower repurchases Senior Notes from any
Noteholder as the result of a Change in Control (as defined in the
Indenture), the Commitments of the Lenders shall automatically be ratably
reduced by an amount equal in the aggregate to the product of (i) the
Commitments on such date and (ii) the percentage obtained by dividing
(A) the aggregate principal amount of such Senior Notes being repurchased
by (B) the aggregate principal amount of the Senior Note Debt then
outstanding.
(c)On any Business Day following the Closing Date on which the sum
of the Commitments shall exceed the aggregate principal amount of Advances
outstanding hereunder, the Commitments of the Lenders shall automatically
and permanently reduce ratably by an amount equal to such excess. In
addition, on the date of any prepayment of the principal amount of the
Advances made hereunder, the Commitments of the Lenders shall
automatically and permanently reduce ratably by an amount equal to the
amount of principal so prepaid.
SECTION 2.04. Computations of Outstandings. Whenever reference is
made in this Agreement to the principal amount outstanding on any date
under this Agreement, such reference shall refer to the aggregate
principal amount of all Advances outstanding on such date. At no time
shall the principal amount outstanding under this Agreement exceed the
aggregate amount of the Commitments.
ARTICLE III
ADVANCES
SECTION 3.01. Advances. (a) The Drawdown shall be made by the
Borrower by delivering a notice (a "Notice of Borrowing") to the
Operational Agent no later than 12:00 noon (New York City time) on the
fourth Business Day or, in the case of Base Rate Advances, on the first
Business Day, prior to the Closing Date. The Operational Agent shall give
each Lender prompt notice of the Notice of Borrowing. The Notice of
Borrowing shall be in substantially the form of Exhibit B and shall
specify the requested (i) date of such Borrowing, (ii) Type of Advances to
be made in connection with such Borrowing and (iii) Interest Period, if
any, for such Advances. Each proposed Borrowing shall conform to the
requirements of Sections 3.03 and 3.04. Amounts borrowed under this
Section 3.01 and repaid or prepaid may not be reborrowed.
(b)Each Lender shall, before 12:00 noon (New York City time) on the
date of such Borrowing, make available for the account of its Applicable
Lending Office to the Operational Agent at the Operational Agent's address
referred to in Section 10.02, in same day funds, such Lender's Percentage
of such Borrowing. After the Operational Agent's receipt of such funds
and upon fulfillment of the applicable conditions set forth in Article V,
the Operational Agent will make such funds available to the Borrower at
the Operational Agent's aforesaid address; provided, however, that the
proceeds of the Drawdown shall be applied first directly by the
Operational Agent on the Closing Date to the prepayment in full of all
outstanding principal, accrued interest and other amounts then owing under
the Existing Agreement (if any), and then, to the extent the proceeds of
such Drawdown exceed the amount necessary to prepay in full all
outstanding principal, accrued interest and other amounts then owing under
the Existing Credit Agreement, to the Borrower at the Operational Agent's
aforesaid address for general corporate purposes. Notwithstanding the
foregoing, unless the Operational Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Operational Agent such Lender's Percentage of such
Borrowing, the Operational Agent may assume that such Lender has made such
Percentage available to the Operational Agent on the date of such
Borrowing in accordance with the first sentence of this subsection (b),
and the Operational Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount.
(c)If and to the extent that any Lender (a "non-performing Lender")
shall not have made available to the Operational Agent, in accordance with
subsection (b) above, such Lender's Percentage of any Borrowing, the
non-performing Lender and the Borrower severally agree to repay to the
Operational Agent forthwith on demand corresponding amounts, together with
interest thereon for each day from the date such amount is made available
to the Borrower until the date such amount is repaid to the Operational
Agent, at (i) in the case of the Borrower, the interest rate applicable at
the time to Advances made in connection with such Borrowing and (ii) in
the case of such Lender, the Federal Funds Rate. If a non-performing
Lender shall repay to the Operational Agent such corresponding amount in
full (with interest as above provided), (x) the Operational Agent shall
apply such corresponding amount and interest to the repayment to the
Operational Agent and shall make any remainder available to the Borrower
and (y) such amount so repaid shall be deemed to constitute such Lender's
Advance, made as part of such Borrowing for purposes of this Agreement as
if funded concurrently with the other Advances made as part of such
Borrowing, and such Lender shall forthwith cease to be deemed a
non-performing Lender; if and so long as such non-performing Lender shall
not repay such amount, and unless and until an Eligible Assignee shall
have assumed and performed the obligations of such non-performing Lender,
all computations by the Operational Agent of Percentages, Commitments and
payments hereunder shall be made without regard to the Commitments, or
outstanding Advances, of such non-performing Lender, and any amounts paid
to the Operational Agent for the account of such non-performing Lender
shall be held by the Operational Agent in trust for such non-performing
Lender in a non-interest-bearing special purpose account. Nothing herein
shall in any way limit, waive or otherwise reduce any claims that any
party hereto may have against any non-performing Lender. The failure of
any Lender to make the Advance to be made by it as part of any Borrowing
shall not relieve any other Lender of its obligation, if any, hereunder to
make its Advance on the date of such Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Borrowing.
SECTION 3.02. Conversion of Advances. The Borrower may from time to
time Convert any Advance (or portion thereof) of any Type to one or more
Advances of the same or any other Type by delivering a notice of such
Conversion (a "Notice of Conversion") to the Operational Agent no later
than 12:00 noon (New York City time) on (x) the fourth Business Day prior
to the date of any proposed Conversion into a Eurodollar Rate Advance and
(y) the first Business Day prior to the date of any proposed Conversion
into a Base Rate Advance. The Operational Agent shall give each Lender
prompt notice of each Notice of Conversion. Each Notice of Conversion
shall be in substantially the form of Exhibit C and shall specify the
requested (i) date of such Conversion, (ii) Type of, and Interest Period,
if any, applicable to, the Advances (or portions thereof) proposed to be
Converted, (iii) Type of Advances to which such Advances (or portions
thereof) are proposed to be Converted, (iv) initial Interest Period, if
any, to be applicable to the Advances resulting from such Conversion and
(i) aggregate amount of Advances (or portions thereof) proposed to be
Converted. Each proposed Conversion shall be subject to the provisions of
Sections 3.03 and 3.04.
SECTION 3.03. Interest Periods. The period between the date of each
Eurodollar Rate Advance and the date of payment in full of such Advance
shall be divided into successive periods of months or days ("Interest
Periods") for purposes of computing interest applicable thereto. The
initial Interest Period for each such Advance shall begin on the day such
Advance is made, and each subsequent Interest Period shall begin on the
last day of the immediately preceding Interest Period for such Advance.
The duration of each Interest Period shall be 1, 2, 3, or 6 months, as the
Borrower may, in accordance with Section 3.01 or 3.02, select; provided,
however, that:
(i)the Borrower may not select any Interest Period that
ends after the Termination Date; and
(ii)whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day
of such Interest Period shall occur on the next succeeding
Business Day, provided that if such extension would cause the
last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur
on the next preceding Business Day.
SECTION 3.04. Other Terms Relating to the Making and Conversion of
Advances. (a) Notwithstanding anything in Section 3.01 or 3.02 to the
contrary:
(i) each Borrowing shall be in an aggregate amount not
less than $10,000,000, or an integral multiple of $1,000,000 in
excess thereof and shall consist of Advances of the same Type,
having the same Interest Period and made or Converted on the
same day by the Lenders ratably according to their respective
Percentages; provided, however, that the Drawdown shall be in an
aggregate amount sufficient to repay in full all outstanding
principal, accrued interest and other amounts owing under the
Existing Agreement (if any) as of the Closing Date;
(ii)the Borrower may request that more than one Borrowing
be made on the same day;
(iii) at no time shall more than five different Borrowings
comprising Eurodollar Rate Advances be outstanding hereunder;
(iv) no Eurodollar Rate Advance may be Converted on a date
other than the last day of the Interest Period applicable to
such Advance unless the corresponding amounts, if any, payable
to the Lenders pursuant to Section 4.04(c) are paid
contemporaneously with such Conversion;
(v) if the Borrower shall either fail to give a timely
Notice of Conversion pursuant to Section 3.02 in respect of any
Advances or fail, in any Notice of Conversion that has been
timely given, to select the duration of any Interest Period for
Advances to be Converted into Eurodollar Rate Advances in
accordance with Section 3.03, such Advances shall, on the last
day of the then existing Interest Period therefor, automatically
Convert into, or remain as, as the case may be, Base Rate
Advances; and
(vi) if, on the date of any proposed Conversion, any Event
of Default or Unmatured Default shall have occurred and be
continuing, all Advances then outstanding shall, on such date,
automatically Convert into, or remain as, as the case may be,
Base Rate Advances; provided, however, that with respect to any
Unmatured Default that occurs and is continuing as a result of
the failure of the Borrower to comply with the ratio set forth
in Section 7.01(j), any such Advances may be Converted into
Eurodollar Rate Advances with an Interest Period not to exceed
three months in duration.
(b)If any Lender shall notify the Operational Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or that any central bank or other
governmental authority asserts that it is unlawful, for such Lender or its
Applicable Lending Office to perform its obligations hereunder to make, or
to fund or maintain, Eurodollar Rate Advances hereunder, (i) the
obligation of such Lender to make, or to Convert Advances into, Eurodollar
Rate Advances for such Borrowing or any subsequent Borrowing from such
Lender shall be forthwith suspended until the earlier to occur of the date
upon which (A) such Lender shall cease to be a party hereto and (B) it is
no longer unlawful for such Lender to make, fund or maintain Eurodollar
Rate Advances, and (ii) if the maintenance of Eurodollar Rate Advances
then outstanding through the last day of the Interest Period therefor
would cause such Lender to be in violation of such law, regulation or
assertion, the Borrower shall either prepay or Convert all Eurodollar Rate
Advances from such Lender within five days after such notice. Promptly
upon becoming aware that the circumstances that caused such Lender to
deliver such notice no longer exist, such Lender shall deliver notice
thereof to the Operational Agent (but the failure to do so shall impose no
liability upon such Lender). Promptly upon receipt of such notice from
such Lender (or upon such Lender's assigning all of its Commitments,
Advances, participation and other rights and obligations hereunder to an
Eligible Assignee), the Operational Agent shall deliver notice thereof to
the Borrower and the Lenders and such suspension shall terminate.
(c)If (i) only one, or none, of the Reference Banks furnishes
timely information to the Operational Agent for determining the Eurodollar
Rate for Eurodollar Rate Advances to be made in connection with any
proposed Borrowing or (ii) the Majority Lenders shall, at least one
Business Day before the date of any requested Borrowing, notify the
Operational Agent that the Eurodollar Rate for Eurodollar Rate Advances to
be made in connection with such Borrowing will not adequately reflect the
cost to such Majority Lenders of making, funding or maintaining their
respective Eurodollar Rate Advances for such Borrowing, the right of the
Borrower to select Eurodollar Rate Advances for such Borrowing and any
subsequent Borrowing shall be suspended until the Operational Agent shall
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist, and each Advance to be made or Converted in
connection with such Borrowing shall be a Base Rate Advance.
(d)If any Lender shall have delivered a notice to the Operational
Agent described in Section 3.04(b), or shall become a non-performing
Lender under Section 3.01(c), and if and so long as such Lender shall not
have withdrawn such notice or corrected such non-performance in accordance
with said Section 3.04(b) or Section 3.01(c), the Borrower or the Co-
Agents may demand that such Lender assign in accordance with Section
10.07, to one or more Eligible Assignees designated by the Borrower or the
Co-Agents, all (but not less than all) of such Lender's Commitment,
Advances, participation and other rights and obligations hereunder;
provided that any such demand by the Borrower during the continuance of an
Event of Default or Unmatured Default shall be ineffective without the
consent of the Majority Lenders. If, within 30 days following any such
demand by the Co-Agents or the Borrower, any such Eligible Assignee so
designated shall fail to consummate such assignment on terms reasonably
satisfactory to such Lender, or the Borrower and the Co-Agents shall have
failed to designate any such Eligible Assignee, then such demand by the
Borrower or the Co-Agents shall become ineffective, it being understood
for purposes of this provision that such assignment shall be conclusively
deemed to be on terms reasonably satisfactory to such Lender, and such
Lender shall be compelled to consummate such assignment forthwith, if such
Eligible Assignee (i) shall agree to such assignment in substantially the
form of the Lender Assignment attached hereto as Exhibit I and (ii) shall
tender payment to such Lender in an amount equal to the full outstanding
dollar amount accrued in favor of such Lender hereunder (as computed in
accordance with the records of the Operational Agent).
(e)The Notice of Borrowing and each Notice of Conversion shall be
irrevocable and binding on the Borrower. In the case of any Borrowing
which the related Notice of Borrowing or Notice of Conversion specifies is
to be comprised of Eurodollar Rate Advances, the Borrower shall indemnify
each Lender against any loss, cost or expense incurred by such Lender as a
result of any failure to fulfill, on or before the date specified in such
Notice of Borrowing or Notice of Conversion for such Borrowing, the
applicable conditions (if any) set forth in this Article III (other than
failure pursuant to the provisions of Section 3.04(b) or (c) hereof) or in
Article V, including, without limitation, any such loss (including loss of
anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender when such Advance, as
a result of such failure, is not made on such date.
SECTION 3.05. Repayment of Advances. (a) Principal. The Borrower
shall repay to the Operational Agent for the ratable account of the
Lenders the aggregate outstanding principal amount of the Advances in
sixteen (16) equal installments each in the amount of $7,812,500, on each
March 31, June 30, September 30 and December 31, commencing on March 31,
1999, and ending on the Termination Date.
(b) Interest. The Borrower shall pay interest on the unpaid
principal amount of each Advance owing to each Lender from the date of
such Advance until such principal amount shall be paid in full, at the
Applicable Rate for such Advance (except as otherwise provided in this
subsection (b)), payable as follows:
(i)Base Rate Advances. If such Advance is a Base Rate
Advance, interest thereon shall be payable quarterly in arrears
on the last day of each January, April, July and October, on the
date of any Conversion of such Base Rate Advance and on the date
such Base Rate Advance shall become due and payable or shall
otherwise be paid in full; provided that any amount of principal
that is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest, from the date on
which such amount is due until such amount is paid in full,
payable on demand, at a rate per annum equal at all times to the
Default Rate.
(ii)Eurodollar Rate Advances. If such Advance is a
Eurodollar Rate Advance, interest thereon shall be payable on
the last day of such Interest Period and, if the Interest Period
for such Advance has a duration of more than three months, on
that day of each third month during such Interest Period that
corresponds to the first day of such Interest Period (or, if any
such month does not have a corresponding day, then on the last
day of such month); provided that any amount of principal that
is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest, from the date on
which such amount is due until such amount is paid in full,
payable on demand, at a rate per annum equal at all times to the
Default Rate.
ARTICLE IV
PAYMENTS, COMPUTATIONS AND
YIELD PROTECTION
SECTION 4.01. Payments and Computations. (a) The Borrower shall
make each payment hereunder and under the other Loan Documents not later
than 11:00 A.M. (New York City time) on the day when due in U.S. Dollars
to the Operational Agent at its address referred to in Section 10.02 in
same day funds; any payment received after 2:00 P.M. (New York City time)
shall be deemed to have been received at the start of business on the next
succeeding Business Day, unless the Operational Agent shall have received
from, or on behalf of, the Borrower a Federal Reserve reference number
with respect to such payment before 3:00 P.M. (New York City time). The
Operational Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal, interest, fees or other
amounts payable to the Lenders, to the respective Lenders to which the
same are payable, for the account of their respective Applicable Lending
Offices, in each case to be applied in accordance with the terms of this
Agreement. If and to the extent that any distribution of any payment from
the Borrower required to be made to any Lender pursuant to the preceding
sentence shall not be made in full by the Operational Agent on the date
such payment was received by the Operational Agent, the Operational Agent
shall pay to such Lender, upon demand, interest on the unpaid amount of
such distribution, at a rate per annum equal to the Federal Funds Rate,
from the date of such payment by the Borrower to the Operational Agent to
the date of payment in full by the Operational Agent to such Lender of
such unpaid amount. Upon the Operational Agent's acceptance of a Lender
Assignment and recording of the information contained therein in the
Register pursuant to Section 10.07, from and after the effective date
specified in such Lender Assignment, the Operational Agent shall make all
payments hereunder and under the Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to such Lender
Assignment shall make all appropriate adjustments in such payments for
periods prior to such effective date directly between themselves.
(b)The Borrower hereby authorizes the Operational Agent and each
Lender, if and to the extent payment owed to the Operational Agent or such
Lender, as the case may be, is not made when due hereunder (or, in the
case of a Lender, under the Note held by such Lender), to charge from
time to time against any or all of the Borrower's accounts with the
Operational Agent or such Lender, as the case may be, any amount so due.
(c)All computations of interest based on the Alternate Base Rate
shall be made by the Operational Agent on the basis of a year of 365 or
366 days, as the case may be. All other computations of interest and fees
hereunder (including computations of interest based on the Eurodollar Rate
and the Federal Funds Rate) shall be made by the Operational Agent on the
basis of a year of 360 days. In each such case, such computation shall be
made for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest or fees are
payable. Each such determination by the Operational Agent or a Lender
shall be conclusive and binding for all purposes, absent manifest error.
(d)Whenever any payment hereunder or under any other Loan Document
shall be stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of payment of
interest and fees hereunder; provided, however, that if such extension
would cause payment of interest on or principal of Eurodollar Rate
Advances to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day and such reduction of
time shall in such case be included in the computation of payment of
interest hereunder.
(e)Unless the Operational Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Operational Agent may assume that the Borrower has made such payment in
full to the Operational Agent on such date, and the Operational Agent may,
in reliance upon such assumption, cause to be distributed to each Lender
on such due date an amount equal to the amount then due such Lender. If
and to the extent the Borrower shall not have so made such payment in full
to the Operational Agent, such Lender shall repay to the Operational Agent
forthwith on demand such amount distributed to such Lender, together with
interest thereon, for each day from the date such amount is distributed to
such Lender until the date such Lender repays such amount to the
Operational Agent, at the Federal Funds Rate.
(f)Any amount payable by the Borrower hereunder or under any of the
Notes that is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall (to the fullest extent permitted by law)
bear interest, from the date when due until paid in full, at a rate per
annum equal at all times to the Default Rate payable on demand.
SECTION 4.02. Interest Rate Determination. (a) Each Reference Bank
agrees to furnish to the Operational Agent timely information for the
purpose of determining the Eurodollar Rate for each Interest Period. If
any one or more of the Reference Banks shall not furnish such timely
information to the Operational Agent for the purpose of determining any
such interest rate, the Operational Agent shall determine such interest
rate on the basis of timely information furnished by the remaining
Reference Banks, subject to Section 3.04(c).
(b)The Operational Agent shall give prompt notice to the Borrower
and the Lenders of the applicable interest rate determined by the
Operational Agent for purposes of Section 3.05(b)(i) or (ii), and the
Eurodollar Rate, if any, furnished by each Reference Bank for the purpose
of determining the applicable interest rate under Section 3.05(b)(ii).
SECTION 4.03. Prepayments. The Borrower shall have no right to
prepay any principal amount of any Advances other than as provided in
subsections (a), (b) and (c) below.
(a)The Borrower may, upon at least five Business Days' notice to
the Operational Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given, the Borrower shall,
prepay the outstanding principal amounts of Advances made as part of the
same Borrowing, in whole or ratably in part, together with (ii) accrued
interest to the date of such prepayment on the principal amount prepaid
and (iii) in the case of Eurodollar Rate Advances, any amount payable to
the Lenders pursuant to Section 4.04(c); provided, however, that each
partial prepayment shall be in an aggregate principal amount of not less
$10,000,000 or an integral multiple of $1,000,000 in excess thereof.
(b)On the date of any termination or optional or mandatory
reduction of the Commitments pursuant to Section 2.03, the Borrower shall
pay or prepay so much of the principal amount outstanding under this
Agreement as shall be necessary in order that such aggregate principal
amount outstanding will not exceed the Commitments following such
termination or reduction, together with (i) accrued interest to the date
of such prepayment on the principal amount repaid and (ii) in the case of
prepayments of Eurodollar Rate Advances, any amount payable to the Lenders
pursuant to Section 4.04(c).
(c)Any prepayments of the principal amount of Advances shall be
applied to the Borrower's obligations under Section 4.03(a) in inverse
order of maturity. To the extent consistent with the foregoing, any such
prepayments shall be applied to outstanding Base Rate Advances up to the
full amount thereof before they are applied to outstanding Eurodollar Rate
Advances.
SECTION 4.04. Yield Protection. (a) Increased Costs. If, due to
either (i) the introduction of or any change in or in the interpretation
of any law or regulation after the date hereof, or (ii) the compliance
with any guideline or request from any central bank or other governmental
authority (whether or not having the force of law) issued or made after
the date hereof, there shall be reasonably incurred any increase in the
cost to any Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances, then the Borrower shall from time to time, upon
demand by such Lender (with a copy of such demand to the Operational
Agent), pay to the Operational Agent for the account of such Lender
additional amounts sufficient to compensate such Lender for such increased
cost. A certificate as to the amount of such increased cost and giving a
reasonable explanation thereof, submitted to the Borrower and the
Operational Agent by such Lender shall constitute such demand and shall be
conclusive and binding for all purposes, absent manifest error.
(b)Eurodollar Reserves. The Borrower shall pay to the Operational
Agent for the account of each Lender, so long as such Lender shall be
required under regulations of the Board of Governors of the Federal
Reserve System 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 Rate Advance of such
Lender, from the date of such Advance until such principal amount is paid
in full, at an interest rate per annum equal at all times to the remainder
obtained by subtracting (iv) the Eurodollar Rate for the Interest Period
for such Advance from (v) the rate obtained by dividing such Eurodollar
Rate by a percentage equal to 100% minus the Eurodollar Reserve Percentage
of such Lender for such Interest Period, payable on each date on which
interest is payable on such Advance. Such additional interest shall be
determined by such Lender and notified to the Borrower and the Operational
Agent. A certificate as to the amount of such additional interest,
submitted to the Borrower and the Operational Agent by such Lender, shall
be conclusive and binding for all purposes, absent manifest error.
(c)Breakage. If, due to any prepayment pursuant to Section 4.03,
an acceleration of maturity of the Advances pursuant to Section 8.02, or
any other reason, any Lender receives payments of principal of any
Eurodollar Rate Advance other than on the last day of the Interest Period
relating to such Advance, or if the Borrower shall Convert any Eurodollar
Rate Advances on any day other than the last day of the Interest Period
therefor, the Borrower shall, promptly after demand by such Lender (with a
copy of such demand to the Operational Agent), pay to the Operational
Agent for the account of such Lender any amounts required to compensate
such Lender for additional losses, costs, or expenses (including
anticipated lost profits) that such Lender may reasonably incur as a
result of such payment or Conversion, including, without limitation, any
loss, cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund or
maintain such Advance. For purposes of this subsection (c), a certificate
setting forth the amount of such additional losses, costs, or expenses and
giving a reasonable explanation thereof, submitted to the Borrower and the
Operational Agent by such Lender, shall constitute such demand and shall
be conclusive and binding for all purposes, absent manifest error.
(d)Capital. If any Lender determines that (i) compliance with any
law or regulation or any guideline or request from any central bank or
other governmental authority (whether or not having the force of law)
affects or would affect the amount of capital required or expected to be
maintained by such Lender, whether directly, or indirectly as a result of
commitments of any corporation controlling such Lender, and (ii) the
amount of such capital is increased by or based upon (1) the existence of
such Lender's commitment to, or (2) the participation in or issuance or
maintenance of any Advance and (3) other similar such commitments, then,
upon demand by such Lender, the Borrower shall immediately pay to the
Operational Agent for the account of such Lender from time to time as
specified by such Lender additional amounts sufficient to compensate such
Lender in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the
transactions contemplated hereby. A certificate as to such amounts and
giving a reasonable explanation thereof (to the extent permitted by law),
submitted to the Borrower and the Operational Agent by such Lender, shall
be conclusive and binding for all purposes, absent manifest error.
(e)Notices. Each Lender hereby agrees to use its best efforts to
notify the Borrower of the occurrence of any event referred to in
subsection (a), (b), (c) or (d) of this Section 4.04 promptly after
becoming aware of the occurrence thereof. The failure of any Lender to
provide such notice or to make demand for payment under said subsection
shall not constitute a waiver of such Lender's rights hereunder; provided
that, notwithstanding any provision to the contrary contained in this
Section 4.04, the Borrower shall not be required to reimburse any Lender
for any amounts or costs incurred under (i) subsection (a), (c) or (d)
above, more than 90 days prior to the date that such Lender notifies the
Borrower in writing thereof, and (ii) subsection (b) above, more than 180
days prior to the date that such Lender notifies the Borrower in writing
thereof, in each case unless, and to the extent that, any such amounts or
costs so incurred shall relate to the retroactive application of any event
notified to the Borrower which entitles such Lender to such compensation.
If any Lender shall subsequently determine that any amount demanded and
collected under this Section 4.04 was done so in error, such Lender will
promptly return such amount to the Borrower.
(f)Survival of Obligations. Subject to subsection (e) above, the
Borrower's obligations under this Section 4.04 shall survive the repayment
of all other amounts owing to the Lenders, the Agents under the Loan
Documents and the termination of the Commitments. If and to the extent
that the obligations of the Borrower under this Section 4.04 are
unenforceable for any reason, the Borrower agrees to make the maximum
contribution to the payment and satisfaction thereof which is permissible
under applicable law.
SECTION 4.05. Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Advances owing to it
(other than pursuant to Section 4.04) in excess of its ratable share of
payments obtained by all the Lenders on account of the Advances of such
Lenders, such Lender shall forthwith purchase from the other Lenders such
participation in the Advances owing to them as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of
them; provided, however, that if all or any portion of such excess payment
is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery
together with an amount equal to such Lender's ratable share (according to
the proportion of (i) the amount of such Lender's required repayment to
(ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrower agrees that any
Lender so purchasing a participation from another Lender pursuant to this
Section 4.05 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. Notwithstanding the
foregoing, if any Lender shall obtain any such excess payment
involuntarily, such Lender may, in lieu of purchasing participations from
the other Lenders in accordance with this Section 4.05, on the date of
receipt of such excess payment, return such excess payment to the
Operational Agent for distribution in accordance with Section 4.01(a).
SECTION 4.06. Taxes. (a) All payments by the Borrower hereunder and
under the other Loan Documents shall be made in accordance with Section
4.01, free and clear of and without deduction for all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender
and each Agent, taxes imposed on its overall net income, and franchise
taxes imposed on it by the jurisdiction under the laws of which such
Lender or Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its
overall net income, and franchise taxes imposed on it by the jurisdiction
of such Lender's Applicable Lending Office or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as
"Taxes"). If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder or under any other Loan
Document to any Lender or Agent, (i) the sum payable shall be increased as
may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 4.06)
such Lender or Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority
in accordance with applicable law.
(b)In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or under any
other Loan Document or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or any other Loan Document
(hereinafter referred to as "Other Taxes").
(c)The Borrower will indemnify each Lender and Agent for the full
amount of Taxes and Other Taxes (including, without limitation, any Taxes
and any Other Taxes imposed by any jurisdiction on amounts payable under
this Section 4.06) paid by such Lender or Agent (as the case may be) and
any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. This indemnification shall be
made within 30 days from the date such Lender or Agent (as the case may
be) makes written demand therefor; provided, that such Lender or Agent (as
the case may be) shall not be entitled to demand payment under this
Section 4.06 for an amount if such demand is not made within one year
following the date upon which such Lender or Agent (as the case may be)
shall have been required to pay such amount.
(d)Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Documentation Agent, at its address referred
to in Section 10.02, the original or a certified copy of a receipt
evidencing payment thereof.
(e)Each Bank represents and warrants that either (i) it is
organized under the laws of a jurisdiction within the United States or
(ii) it has delivered to the Borrower or the Operational Agent duly
completed copies of such form or forms prescribed by the United States
Internal Revenue Service indicating that such Bank is entitled to receive
payments without deduction or withholding of any United States federal
income taxes, as permitted by the Internal Revenue Code of 1986, as
amended. Each other Lender agrees that, on or prior to the date upon
which it shall become a party hereto, and upon the reasonable request from
time to time of the Borrower or the Operational Agent, such Lender will
deliver to the Borrower and the Operational Agent either (A) a statement
that it is organized under the laws of a jurisdiction within the United
States or (B) duly completed copies of such form or forms as may from time
to time be prescribed by the United States Internal Revenue Service,
indicating that such Lender is entitled to receive payments without
deduction or withholding of any United States federal income taxes, as
permitted by the Internal Revenue Code of 1986, as amended. Each Bank
that has delivered, and each other Lender that hereafter delivers, to the
Borrower and the Operational Agent the form or forms referred to in the
two preceding sentences further undertakes to deliver to the Borrower and
the Operational Agent further copies of such form or forms, or successor
applicable form or forms, as the case may be, as and when any previous
form filed by it hereunder shall expire or shall become incomplete or
inaccurate in any respect. Each Lender represents and warrants that each
such form supplied by it to the Operational Agent and the Borrower
pursuant to this subsection (e), and not superseded by another form
supplied by it, is or will be, as the case may be, complete and accurate.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to the Drawdown. The obligation
of each Lender to make its Advance in connection with the Drawdown on the
Closing Date is subject to the fulfillment of the following conditions
precedent:
(a)The Documentation Agent shall have received, on or before the
Closing Date, the following, each dated such day (except where specified
otherwise below), in form and substance satisfactory to each Lender
(except where otherwise specified below) and (except for the Notes) in
sufficient copies for each Lender:
(i)Certified copies of the resolutions of the Board of
Directors, or of the Executive Committee of the Board of
Directors, of the Borrower authorizing the Borrower to enter
into this Agreement, the Notes and the other Loan Documents to
which it is, or is to be, a party, and of all documents
evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Agreement, the Notes and
such Loan Documents.
(ii)A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names, true signatures
and incumbency of (A) the officers of the Borrower authorized to
sign this Agreement, the Notes and the other Loan Documents to
which it is, or is to be, a party, and the other documents to be
delivered hereunder and thereunder and (B) the representatives
of the Borrower authorized to sign notices to be provided under
this Agreement and the other Loan Documents to which it is, or
is to be, a party, which representatives shall be acceptable to
the Co-Agents.
(iii) Copies of the Certificate of Incorporation (or
comparable charter document) and by-laws of the Borrower,
together with all amendments thereto, certified by the Secretary
or an Assistant Secretary of the Borrower.
(iv) An irrevocable notice from the Borrower requesting
termination of the "Commitments" under the Existing Agreement
effective automatically on such date upon the satisfaction (or
waiver) of the other conditions precedent set forth in this
Section 5.01.
(v) A Note, payable to the order of each Lender then party
hereto, duly executed by the Borrower.
(vi) The Fee Letter, duly executed by the Borrower.
(vii) A certified copy of Schedule II hereto, in form and
substance reasonably satisfactory to the Co-Agents setting
forth:
(A)all Project Finance Debt of the Consolidated
Subsidiaries, together with the Borrower's Ownership
Interest in each such Consolidated Subsidiary; and
(B) debt (as such term is construed in accordance
with GAAP) of Enterprises as of the Closing Date.
(viii) Favorable opinions of:
(A)Xxxxxx X. Sturdy, Esq., Assistant General Counsel
of the Borrower, in substantially the form of Exhibit D and
as to such other matters as the Majority Lenders, through
the Documentation Agent, may reasonably request; and
(B)King & Spalding, counsel to the Agents, in
substantially the form of Exhibit E and as to such other
matters as the Majority Lenders, through the Documentation
Agent, may reasonably request.
(b)The Existing Credit Agreement has been (or will have been, upon
the Drawdown and the application of the proceeds thereof) paid in full,
the commitments thereunder terminated and all letters of credit issued
thereunder either canceled or replaced.
(c)The following statements shall be true and the Documentation
Agent shall have received a certificate of a duly authorized officer of
the Borrower, dated the Closing Date and in sufficient copies for each
Lender stating that:
(i)the representations and warranties set forth in
Section 6.01 of this Agreement are true and correct on and as of
the Closing Date as though made on and as of such date, and
(ii)no event has occurred and is continuing that
constitutes an Unmatured Default or an Event of Default.
(d)The Borrower shall have paid all fees under or referenced in
Section 2.02 hereof, to the extent then due and payable; and
SECTION 5.02. Conditions Precedent to Each Conversion. The
obligation of each Lender to make an Advance in connection with a
Conversion shall be subject to the further conditions precedent that, on
the date of such Conversion and after giving effect thereto:
(a)the following statements shall be true (and each of the giving
of the applicable notice or request with respect thereto and the making of
such Conversion without prior correction by the Borrower shall (to the
extent that such correction has been previously consented to by the
Lenders) constitute a representation and warranty by the Borrower that, on
the date of such Conversion, such statements are true):
(i)the representations and warranties contained in
Section 6.01 of this Agreement (other than those contained in
subsections (e)(ii) and (f) thereof) are correct on and as of
the date of such Conversion, before and after giving effect to
such Conversion and to the application of the proceeds thereof,
as though made on and as of such date; and
(ii)no Event of Default has occurred and is continuing, or
would result from such Conversion or the application of the
proceeds thereof; and
(b)the Documentation Agent shall have received such other
approvals, opinions and documents as any Lender through the Documentation
Agent, may reasonably request as to the legality, validity, binding effect
or enforceability of the Loan Documents or the financial condition,
results of operations, properties or business of the Borrower and its
Consolidated Subsidiaries.
SECTION 5.03. Reliance on Certificates. The Lenders and each Agent
shall be entitled to rely conclusively upon the certificates delivered
from time to time by officers of the Borrower as to the names, incumbency,
authority and signatures of the respective persons named therein until
such time as the Documentation Agent may receive a replacement
certificate, in form acceptable to the Documentation Agent, from an
officer of such Person identified to the Documentation Agent as having
authority to deliver such certificate, setting forth the names and true
signatures of the officers and other representatives of such Person
thereafter authorized to act on behalf of such Person.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a)Each of the Borrower, Consumers and each of the Restricted
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of the state of its incorporation and is duly
qualified to do business in, and is in good standing in, all other
jurisdictions where the nature of its business or the nature of property
owned or used by it makes such qualification necessary.
(b)The execution, delivery and performance by the Borrower of each
Loan Document to which it is or will be a party (i) are within the
Borrower's corporate powers, (ii) have been duly authorized by all
necessary corporate action and (iii) do not and will not (A) require any
consent or approval of the stockholders of the Borrower, (B) violate any
provision of the charter or by-laws of the Borrower or of law, (C) violate
any legal restriction binding on or affecting the Borrower, (D) result in
a breach of, or constitute a default under, any indenture or loan or
credit agreement or any other agreement, lease or instrument to which the
Borrower is a party or by which it or its properties may be bound or
affected, or (E) result in or require the creation of any Lien (other than
pursuant to the Loan Documents) upon or with respect to any of its
properties.
(c)No Governmental Approval is required.
(d)This Agreement is, and each other Loan Document to which the
Borrower will be a party when executed and delivered hereunder will be,
legal, valid and binding obligations of the Borrower enforceable against
the Borrower in accordance with their respective terms; subject to the
qualification, however, that the enforcement of the rights and remedies
herein and therein is subject to bankruptcy and other similar laws of
general application affecting rights and remedies of creditors and the
application of general principles of equity (regardless of whether
considered in a proceeding in equity or at law).
(e)(i) The consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at December 31, 1994, and the related
consolidated statements of income, retained earnings and cash flows of the
Borrower and its Consolidated Subsidiaries for the fiscal year then ended,
together with the report thereon of Xxxxxx Xxxxxxxx & Co. included in the
Borrower's Annual Report on Form 10-K for the fiscal year ended December
31, 1994, and the unaudited consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as at September 30, 1995, and the related
unaudited consolidated statements of income, retained earnings and cash
flows for the nine-month period then ended, copies of each of which have
been furnished to each Lender, fairly present (subject, in the case of
such balance sheets and statements of income for the nine months ended
September 30, 1995, to year-end adjustments) the financial condition of
the Borrower and its Consolidated Subsidiaries as at such dates and the
results of operations of the Borrower and its Consolidated Subsidiaries
for the periods ended on such dates, all in accordance with generally
accepted accounting principles consistently applied; (ii) since December
31, 1994, except as disclosed in the Borrower's Quarterly Report on Form
10-Q for the period ended September 30, 1995, there has been no material
adverse change in the business, financial condition or results of
operations of the Borrower and its Subsidiaries, considered as a whole, or
in the Borrower's ability to perform its obligations under this Agreement
or any other Loan Document to which it is or will be a party; and
(iii) the Borrower has no material liabilities or obligations except as
reflected in the foregoing financial statements and in Schedule II hereto,
as evidenced by the Loan Documents and as may be incurred, in accordance
with the terms of this Agreement, in the ordinary course of business (as
presently conducted) following the date of this Agreement.
(f)Except as disclosed in the Borrower's Quarterly Report on Form
10-Q for the period ended September 30, 1995, there are no pending or
threatened actions, suits or proceedings against or, to the knowledge of
the Borrower, affecting the Borrower or any of its Subsidiaries or the
properties of the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator, that would, if adversely determined,
reasonably be expected to materially adversely affect the financial
condition, properties, business or operations of the Borrower and its
Subsidiaries, considered as a whole, or affect the legality, validity or
enforceability of this Agreement or any other Loan Document.
(g)All insurance required by Section 7.01(b) is in full force and
effect.
(h)No Plan Termination Event has occurred nor is reasonably
expected to occur with respect to any Plan of the Borrower or any of its
ERISA Affiliates which would result in a material liability to the
Borrower, except as disclosed and consented to by the Majority Lenders in
writing from time to time. Since the date of the most recent Schedule B
(Actuarial Information) to the annual report of the Borrower (Form 5500
Series), if any, there has been no material adverse change in the funding
status of the Plans referred therein and no "prohibited transaction" has
occurred with respect thereto which is reasonably expected to result in a
material liability to the Borrower. Neither the Borrower nor any of its
ERISA Affiliates has incurred nor reasonably expects to incur any material
withdrawal liability under ERISA to any Multiemployer Plan, except as
disclosed and consented to by the Majority Lenders in writing from time to
time.
(i)No fire, explosion, accident, strike, lockout or other labor
dispute, drought, storm, hail, earthquake, embargo, act of God or of the
public enemy or other casualty (except for any such circumstance, if any,
which is covered by insurance which coverage has been confirmed and not
disputed by the relevant insurer) affecting the properties, business or
operations of the Borrower, Consumers or any Restricted Subsidiary has
occurred that could reasonably be expected to have a material adverse
effect on the business, financial condition or results of operations of
(A) the Borrower and its Subsidiaries, considered as a whole, or
(B) Consumers and its Subsidiaries, considered as a whole.
(j)The Borrower and its Subsidiaries have filed all tax returns
(Federal, state and local) required to be filed and paid all taxes shown
thereon to be due, including interest and penalties, or, to the extent the
Borrower or any of its Subsidiaries is contesting in good faith an
assertion of liability based on such returns, has provided adequate
reserves for payment thereof in accordance with GAAP.
(k)No extraordinary judicial, regulatory or other legal constraints
exist which limit or restrict Consumers' ability to declare or pay cash
dividends with respect to its capital stock.
(l)The Borrower owns 100% of the outstanding shares of common stock
of Enterprises.
(m)The Borrower owns not less than 80% of the outstanding shares of
common stock of Consumers.
(n)The CMS Energy Corporation 1995-1999 Financial Forecast, dated
August 21, 1995 (the "Projections"), copies of which have been distributed
to the Banks, is based upon assumptions that the Borrower believed were
reasonable at the time the Projections were delivered, and all other
financial information previously delivered by the Borrower to the Co-
Agents are true and correct in all material respects as at the dates and
for the periods indicated therein.
(o)The Borrower is not engaged in the business of extending credit
for the purpose of buying or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve
System), and no proceeds of any Advance will be used to buy or carry any
margin stock or to extend credit to others for the purpose of buying or
carrying any margin stock.
(p)The Borrower is not an investment company (within the meaning of
the Investment Company Act of 1940, as amended).
(q)No proceeds of any Advance will be used to acquire any equity
security of a class that is registered pursuant to Section 12 of the
Exchange Act.
(r)Following application of the proceeds of each Advance, not more
than 25 percent of the value of the assets of the Borrower and its
Subsidiaries on a consolidated basis will be margin stock (within the
meaning of Regulation U issued by the Board of Governors of the Federal
Reserve System).
ARTICLE VII
COVENANTS OF THE BORROWER
SECTION 7.01. Affirmative Covenants. So long as any Note shall
remain unpaid or any Lender shall have any Commitment:
(a)Payment of Taxes, Etc. The Borrower shall pay and discharge,
and each of its Subsidiaries shall pay and discharge, before the same
shall become delinquent, all taxes, assessments and governmental charges,
royalties or levies imposed upon it or upon its property except, in the
case of taxes, to the extent the Borrower or any Subsidiary, as the case
may be, is contesting the same in good faith and by appropriate
proceedings and has set aside adequate reserves for the payment thereof in
accordance with GAAP.
(b)Maintenance of Insurance. The Borrower shall maintain, and each
of its Restricted Subsidiaries and Consumers shall maintain, insurance
covering the Borrower, each of its Restricted Subsidiaries, Consumers and
their respective properties in effect at all times in such amounts and
covering such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general geographical
area in which the Borrower, its Restricted Subsidiaries and Consumers
operates, either with reputable insurance companies or, in whole or in
part, by establishing reserves of one or more insurance funds, either
alone or with other corporations or associations.
(c)Preservation of Existence, Etc. The Borrower shall preserve and
maintain, and each of its Restricted Subsidiaries and Consumers shall
preserve and maintain, its corporate existence, material rights (statutory
and otherwise) and franchises, and take such other action as may be
necessary or advisable to preserve and maintain its right to conduct its
business in the states where it shall be conducting its business.
(d)Compliance with Laws, Etc. The Borrower shall comply, and each
of its Restricted Subsidiaries and Consumers shall comply, in all material
respects with the requirements of all applicable laws, rules, regulations
and orders of any governmental authority, including without limitation any
such laws, rules, regulations and orders relating to zoning, environmental
protection, use and disposal of Hazardous Substances, land use,
construction and building restrictions, and employee safety and health
matters relating to business operations.
(e)Inspection Rights. Subject to the requirements of laws or
regulations applicable to the Borrower or its Subsidiaries, as the case
may be, and in effect at the time, at any time and from time to time upon
reasonable notice, the Borrower shall permit (i) the Co-Agents and their
respective agents and representatives to examine and make copies of and
abstracts from the records and books of account of, and the properties of,
the Borrower or any of its Subsidiaries and (ii) the Co-Agents, each of
the Lenders, and their respective agents and representatives to discuss
the affairs, finances and accounts of the Borrower and its Subsidiaries
with the Borrower and its Subsidiaries and their respective officers,
directors and accountants, in each case, to the extent that any out-of-
pocket expenses are incurred in connection therewith at such time as no
Event of Default or Unmatured Default shall have occurred and be
continuing, at the expense of the Co-Agents, each of the Lenders, or their
respective agents and representatives, as the case may be.
(f)Keeping of Books. The Borrower shall keep, and each of its
Subsidiaries shall keep, proper records and books of account, in which
full and correct entries shall be made of all financial transactions of
the Borrower and its Subsidiaries and the assets and business of the
Borrower and its Subsidiaries, in accordance with GAAP.
(g)Maintenance of Properties, Etc. The Borrower shall maintain,
and each of its Restricted Subsidiaries shall maintain, in substantial
conformity with all laws and material contractual obligations, good and
marketable title to all of its properties which are used or useful in the
conduct of its business; provided, however, that the foregoing shall not
restrict the sale of any asset of the Borrower or any Restricted
Subsidiary to the extent not prohibited by Section 7.02(i). In addition,
the Borrower shall preserve, maintain, develop, and operate, and each of
its Subsidiaries shall preserve, maintain, develop and operate, in
substantial conformity with all laws and material contractual obligations,
all of its material properties which are used or useful in the conduct of
its business in good working order and condition, ordinary wear and tear
excepted.
(h)Use of Proceeds. The Borrower shall apply the proceeds of the
Drawdown, to the extent necessary, to the repayment in full and
termination of all outstanding obligations under the Existing Agreement,
whether for principal, interest, fees, or otherwise (if any) (and, in
furtherance thereof, the Borrower hereby expressly and irrevocably
authorizes the Operational Agent to so apply such proceeds to such
repayment), and then for general corporate purposes (subject to the terms
and conditions of this Agreement).
(i)Consolidated Leverage Ratio. The Borrower shall maintain at all
times a ratio of Consolidated Debt to Consolidated Capital of not more
than the amount set forth below during each corresponding period set forth
below:
Period Amount
Closing Date through .70:1.0
9/30/96
10/1/96 through .68:1.0
9/30/97
10/1/97 through .66:1.0
9/30/98
Thereafter .64:1.0
(j)Cash Dividend Coverage Ratio. The Borrower shall maintain, as
of the last day of each fiscal quarter (in each case, the "Measurement
Quarter"), a ratio of (i) the sum of (A) Cash Dividend Income for the
immediately preceding four-fiscal-quarter period ending on the last day of
the fiscal quarter immediately preceding such Measurement Quarter, plus
(B) 25% of the amount of Equity Distributions received by the Borrower
during such period but in no event in excess of $10,000,000, plus (C) all
amounts received by the Borrower from its Subsidiaries and Affiliates
during such period constituting reimbursement of interest expense
(including commitment, guaranty and letter of credit fees) paid by the
Borrower on behalf of any such Subsidiary to (ii) interest expense
(including commitment, guaranty and letter of credit fees) accrued by the
Borrower in respect of all Debt during such period of (1) not less than
2.1 to 1.0 for each such period from the Closing Date until (and
including) the fiscal quarter ending December 31, 1998 and (2) not less
than 2.0 to 1.0 thereafter; provided, that the Borrower shall be deemed
not to be in breach of the foregoing covenant if, during the Measurement
Quarter, it has a) permanently reduced the Commitments and the principal
amount outstanding under this Agreement and the Notes such that the amount
determined pursuant to clause (ii) above, when recalculated on a pro forma
basis assuming that the amount of such reduced Commitments and principal
amount outstanding under this Agreement and the Notes were in effect at
all times during such four-fiscal-quarter period, would result in the
Borrower being in compliance with such ratio, and/or b) increased Cash
Dividend Income during such Measurement Quarter such that the ratio of
(x) Cash Dividend Income for the four-fiscal-quarter period ending on the
last day of the Measurement Quarter to (y) the amount determined pursuant
to clause (ii) above (as recalculated pursuant to clause a) above), equals
or exceeds (1) 2.1 to 1.0 for each such period from the Closing Date until
(and including) the fiscal quarter ending December 31, 1998 and (2) 2.0 to
1.0 thereafter.
(k)Refinancing of Senior Note Debt. In connection with any
refinancings of the Senior Note Debt, the Borrower shall cause the
maturity thereof to be no sooner than the earlier to occur of (vi) the
third anniversary of the date of any such refinancing and (i) the then-
scheduled maturity date of the Senior Notes being refinanced.
(l)Further Assurances. The Borrower shall promptly execute and
deliver all further instruments and documents, and take all further
action, that may be necessary or that any Lender through the Documentation
Agent may reasonably request in order to give effect to the transactions
contemplated by this Agreement and the other Loan Documents. In addition,
the Borrower will use all reasonable efforts to duly obtain or make
Governmental Approvals required from time to time on or prior to such date
as the same may become legally required.
SECTION 7.02. Negative Covenants. So long as any Note shall remain
unpaid or any Lender shall have any Commitment, the Borrower shall not,
without the written consent of the Majority Lenders:
(a)Liens, Etc. Create, incur, assume or suffer to exist, or permit
any of its Restricted Subsidiaries to create, incur, assume or suffer to
exist, any lien, security interest, or other charge or encumbrance
(including the lien or retained security title of a conditional vendor) of
any kind, or any other type of arrangement intended or having the effect
of conferring upon a creditor a preferential interest upon or with respect
to any of its properties of any character (including, without limitation,
capital stock of Consumers, Enterprises, Nomeco and any of the Borrower's
other directly-owned Subsidiaries and accounts) (any of the foregoing
being referred to herein as a "Lien"), whether now owned or hereafter
acquired, or sign or file, or permit any of its Restricted Subsidiaries to
sign or file, under the Uniform Commercial Code of any jurisdiction a
financing statement which names the Borrower or any Restricted Subsidiary
as debtor, sign, or permit any of its Restricted Subsidiaries to sign, any
security agreement authorizing any secured party thereunder to file such
financing statement, or assign, or permit any of its Restricted
Subsidiaries to assign, accounts, excluding, however, from the operation
of the foregoing restrictions the Liens created under the Loan Documents
and the following:
(i)Liens for taxes, assessments or governmental charges
or levies to the extent not past due;
(ii)cash pledges or deposits to secure (A) obligations
under workmen's compensation laws or similar legislation,
(B) public or statutory obligations of the Borrower or any of
its Restricted Subsidiaries, or (C) Support Obligations of the
Borrower; provided that the aggregate amount of pledges or
deposits securing such Support Obligations shall not exceed $30
million at any one time outstanding;
(iii)Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's liens and other
similar Liens arising in the ordinary course of business
securing obligations which are not overdue or which have been
fully bonded and are being contested in good faith; and
(iv)purchase money Liens or purchase money security
interests upon or in property acquired or held by the Borrower
or any of its Restricted Subsidiaries in the ordinary course of
business to secure the purchase price of such property or to
secure indebtedness incurred solely for the purpose of financing
the acquisition of any such property to be subject to such Liens
or security interests, or Liens or security interests existing
on any such property at the time of acquisition, or extensions,
renewals or replacements of any of the foregoing for the same or
a lesser amount, provided that no such Lien or security interest
shall extend to or cover any property other than the property
being acquired and no such extension, renewal or replacement
shall extend to or cover property not theretofore subject to the
Lien or security interest being extended, renewed or replaced,
and provided, further, that the aggregate principal amount of
the Debt at any one time outstanding secured by Liens permitted
by this clause (iv) shall not exceed $10,000,000.
(b)Enterprises Debt. Permit Enterprises to create, incur, assume
or suffer to exist any debt (as such term is construed in accordance with
GAAP) other than:
(i)debt arising by reason of the endorsement of
negotiable instruments for deposit or collection or similar
transactions in the ordinary course of Enterprises' business;
(ii)in the form of indemnities in respect of unfiled
mechanics' liens and Liens affecting Enterprises' properties
permitted under Section 7.02(a)(iii); and
(iii)other debt of Enterprises outstanding on the Closing
Date set forth on Schedule II hereto;
(c)Lease Obligations. Create, incur, assume or suffer to exist, or
permit any of its Restricted Subsidiaries to create, incur, assume or
suffer to exist, any obligations as lessee for the rental or hire of real
or personal property of any kind under leases or agreements to lease
(other than leases which constitute Debt) having an original term of one
year or more which would cause the aggregate direct or contingent
liabilities of the Borrower and its Restricted Subsidiaries in respect of
all such obligations payable in any period of 12 consecutive calendar
months to exceed $10,000,000.
(d)Investments in Other Persons. Upon the occurrence and during
the continuance of an Event of Default or an Unmatured Default (other than
an Unmatured Default that occurs and is continuing prior to the last day
of any Measurement Quarter resulting from the failure of the Borrower to
comply with the ratio set forth in Section 7.01(j)), make, or permit any
of its Restricted Subsidiaries to make, any loan or advance to any Person
or purchase or otherwise acquire any capital stock, obligations or other
securities of, make any capital contribution to, or otherwise invest in,
any Person, other than Permitted Investments.
(e)Restricted Payments. Declare or pay, or permit any of its
Restricted Subsidiaries to declare or pay, directly or indirectly, any
dividend, payment or other distribution of assets, properties, cash,
rights, obligations or securities on account of any share of any class of
capital stock of the Borrower or any of its Restricted Subsidiaries (other
than (1) stock splits and dividends payable solely in nonconvertible
equity securities of the Borrower and (2) distributions made to the
Borrower or a Restricted Subsidiary), or purchase, redeem, retire, or
otherwise acquire for value, or permit any of its Restricted Subsidiaries
to purchase, redeem, retire, or otherwise acquire for value, any shares of
any class of capital stock of the Borrower or any of its Restricted
Subsidiaries or any warrants, rights, or options to acquire any such
shares, now or hereafter outstanding, or make, or permit any of its
Restricted Subsidiaries to make, any distribution of assets to any of its
shareholders (other than distributions to the Borrower or a Restricted
Subsidiary) (any such dividend, payment, distribution, purchase,
redemption, retirement or acquisition being hereinafter referred to as a
"Restricted Payment"), unless (i) no Unmatured Default or Event of Default
has occurred and is continuing or would occur as a result of such
Restricted Payment, and (ii) after giving effect thereto, the aggregate
amount of all such Restricted Payments made since September 30, 1993 shall
not have exceeded the sum of (A) $120,000,000, (B) 100% of Consolidated
Net Income (as defined in the Indenture in effect on the date hereof)
accrued during the period (treated as one accounting period) from
September 30, 1993 to the end of the most recent fiscal quarter of the
Borrower ending at least 45 days prior to the date of such Restricted
Payment (or, in case such amount shall be a deficit, minus 100% of such
deficit), and (C) the aggregate Net Proceeds (as defined in the Indenture
in effect on the date hereof) received by the Borrower from any issuance
or sale of, or contribution with respect to, its capital stock subsequent
to September 30, 1993; provided, however, that the foregoing shall not
prohibit (1) any purchase or redemption of capital stock of the Borrower
made by exchange for, or out of the proceeds of the substantially
concurrent sale of, capital stock of the Borrower (other than Redeemable
Stock or Exchangeable Stock (as such terms are defined in the Indenture in
effect on the date hereof)), provided that such purchase or redemption
shall be excluded from the calculation of the amount of Restricted
Payments permitted by this subsection (e); (2) dividends or other
distributions paid in respect of any class of the Borrower's capital stock
issued in respect of the acquisition of any business or assets by the
Borrower or a Restricted Subsidiary where the dividends or other
distributions with respect to such capital stock are payable solely from
the net earnings of such business or assets; (3) dividends paid within 60
days after the date of declaration thereof if at such date of declaration
such dividend would have complied with this subsection (e), provided that
at the time of payment of such dividend, no Unmatured Default or Event of
Default shall have occurred and be continuing (or result therefrom), and
provided further that such dividends shall be included (without
duplication) in the calculation of the amount of Restricted Payments
permitted by this subsection (e); or (4) payments made by the Borrower or
any Restricted Subsidiary pursuant to the Tax Sharing Agreement. For
purposes of this subsection (e), the amount of any Restricted Payment not
in the form of cash shall be the fair market value of such Restricted
Payment as determined in good faith by the Board of Directors of the
Borrower, provided that if the value of the non-cash portion of such
Restricted Payment as determined by the Borrower's Board of Directors is
in excess of $25 million, such value shall be based on an opinion from a
nationally-recognized firm acceptable to the Co-Agents experienced in the
appraisal of similar types of property or transactions.
(f)Compliance with ERISA. (i) Permit to exist any "accumulated
funding deficiency" (as defined in Section 412(a) of the Internal Revenue
Code of 1986), (ii) terminate, or permit any ERISA Affiliate to terminate,
any Plan so as to result in any material (in the opinion of the Majority
Lenders) liability of the Borrower, any Restricted Subsidiary or Consumers
to the PBGC, or (iii) permit to exist any occurrence of any Reportable
Event (as defined in Title IV of ERISA), or any other event or condition,
which presents a material (in the opinion of the Majority Lenders) risk of
such a termination by the PBGC of any Plan and such a material liability
to the Borrower, any Restricted Subsidiary or Consumers.
(g)Transactions with Affiliates. Enter into, or permit any of its
Subsidiaries to enter into, any transaction with any of its Affiliates
unless such transaction is on terms no less favorable to the Borrower or
such Subsidiary than if the transaction had been negotiated in good faith
on an arm's-length basis with a non-Affiliate.
(h)Mergers, Etc. Merge with or into or consolidate with or into,
or permit any of its Restricted Subsidiaries, Consumers or Nomeco to merge
with or into or consolidate with or into, any other Person, except that
(1) any Restricted Subsidiary (other than Enterprises) may merge into any
other Restricted Subsidiary; (2) Nomeco may merge with or into Enterprises
or the Borrower; (3) Nomeco may merge with or into any other Person,
provided that, in connection with such merger, Enterprises shall have
received fair consideration (as determined by the Board of Directors of
Enterprises or the Borrower); (4) any Restricted Subsidiary may merge with
or into the Borrower, and the Borrower may merge with any other Person,
provided that, immediately after giving effect to any such merger, (A) no
event shall occur and be continuing which constitutes an Unmatured Default
or an Event of Default, (B) the Borrower is the surviving corporation, and
(C) the Borrower shall not be liable with respect to any Debt or allow its
property to be subject to any Lien which it could not become liable with
respect to or allow its property to become subject to under this Agreement
or any other Loan Document on the date of such transaction; (5) Consumers
may merge with any other Person, provided that, immediately after giving
effect thereto, (w) no event shall occur and be continuing which
constitutes an Unmatured Default or an Event of Default, (x) Consumers is
the surviving corporation, (y) the Borrower shall continue to own not less
than 80% of the outstanding shares of common stock of Consumers and (z)
Consumers' Net Worth shall be equal to or greater than its Net Worth
immediately prior to such merger; and (6) any Person (other than the
Borrower and its Affiliates) may merge with or into Enterprises, provided
that, immediately after giving effect thereto, (A) no event shall occur
and be continuing which constitutes an Unmatured Default or an Event of
Default, (B) Enterprises is the surviving corporation, (C) Enterprises'
Net Worth shall be equal to or greater than its Net Worth immediately
prior to such merger and (D) Enterprises shall not be liable with respect
to any Debt or allow its property to be subject to any Lien which it could
not become liable with respect to or allow its property to become subject
to under this Agreement or any other Loan Document on the date of such
transaction; provided, that after giving effect to any merger described in
clause (2), (3), or (5) above, the Borrower shall be in compliance with
Section 7.01(i).
(i)Sales, Etc., of Assets. Sell, lease, transfer, assign, or
otherwise dispose of all or any substantial part of its assets, or permit
any of its Restricted Subsidiaries to sell, lease, transfer, or otherwise
dispose of all or any substantial part of its assets, except to give
effect to a transaction permitted by subsection (h) above or subsection
(j) below.
(j)Maintenance of Ownership of Subsidiaries. Sell, transfer,
assign or otherwise dispose of any shares of capital stock of any of its
Restricted Subsidiaries or Consumers (other than preferred or preference
stock of Consumers) or any warrants, rights or options to acquire such
capital stock, or permit any Restricted Subsidiary or Consumers to issue,
sell, transfer, assign or otherwise dispose of any shares of its capital
stock (other than preferred or preference stock of Consumers) or the
capital stock of any other Restricted Subsidiary or any warrants, rights
or options to acquire such capital stock, except to give effect to a
transaction permitted by subsection (h) above; provided, however, that
(i) the Borrower may sell, transfer, assign or otherwise dispose of not
more than 20% of the common stock of Consumers, provided that after giving
effect to such transaction the Borrower shall be in compliance with
Section 7.01(i) and (ii) Enterprises may, and the Borrower may permit
Enterprises to, sell, transfer, assign or otherwise dispose of not more
than 49% of the common stock of any Enterprises Significant Subsidiary,
provided that after giving effect to such transaction the Borrower shall
be in compliance with Section 7.01(i).
(k)Amendment of Tax Sharing Agreement. Directly or indirectly,
amend, modify, supplement, waive compliance with, seek a waiver under, or
assent to noncompliance with, any term, provision or condition of the Tax
Sharing Agreement if the effect of such amendment, modification,
supplement, waiver or assent is to (i) reduce materially any amounts
otherwise payable to, or increase materially any amounts otherwise owing
or payable by, the Borrower thereunder, or (ii) change materially the
timing of any payments made by or to the Borrower thereunder.
SECTION 7.03. Reporting Obligations. So long as any Note shall
remain unpaid or any Lender shall have any Commitment, the Borrower will,
unless the Majority Lenders shall otherwise consent in writing, furnish to
each Lender, the following:
(a)as soon as possible and in any event within five days after the
Borrower knows or should have reason to know of the occurrence of each
Unmatured Default or Event of Default continuing on the date of such
statement, a statement of the chief financial officer or chief accounting
officer of the Borrower setting forth details of such Unmatured Default or
Event of Default and the action that the Borrower proposes to take with
respect thereto;
(b) 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
Borrower, a consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such quarter and consolidated statements of
income and retained earnings and of cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous fiscal
year and ending with the end of such quarter (which requirement shall be
deemed satisfied by the delivery of the Borrower's quarterly report on
Form 10-Q for such quarter), all in reasonable detail and duly certified
(subject to year-end audit adjustments) by the chief financial officer or
chief accounting officer of the Borrower as having been prepared in
accordance with GAAP, together with (A) a schedule (substantially in the
form of Exhibit F appropriately completed) of (1) the computations used by
the Borrower in determining compliance with the covenants contained in
Sections 7.01(i) and 7.01(j) and, after the enactment of any Consumers
Dividend Restriction, the ratio set forth in Section 8.01(i), (2) all
Project Finance Debt of the Consolidated Subsidiaries, together with the
Borrower's Ownership Interest in each such Consolidated Subsidiary and
(3) all Support Obligations of the Borrower of the types described in
clauses (iv) and (v) of the definition of Support Obligations (whether or
not each such Support Obligation or the primary obligation so supported is
fixed, conclusively determined or reasonably quantifiable) to the extent
such Support Obligations have not been previously disclosed as
"Consolidated Debt" pursuant to clause (1) above, and (B) a certificate of
said officer stating that no Unmatured Default or Event of Default has
occurred and is continuing or, if an Unmatured Default or Event of Default
has occurred and is continuing, a statement as to the nature thereof and
the action that the Borrower proposes to take with respect thereto;
(c)as soon as available and in any event within 120 days after the
end of each fiscal year of the Borrower and its Subsidiaries, a copy of
the Annual Report on Form 10-K (or any successor form) for the Borrower
and its Subsidiaries for such year, including therein a consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of such
fiscal year and consolidated statements of income and retained earnings
and of cash flows of the Borrower and its Subsidiaries for such fiscal
year, accompanied by a report thereon of Xxxxxx Xxxxxxxx & Co. or another
nationally-recognized independent public accounting firm, together with a
schedule in form satisfactory to the Majority Lenders of (A) the
computations used by such accounting firm in determining, as of the end
such fiscal year, compliance with the covenants contained in Sections
7.01(i) and 7.01(j) and, after the enactment of any Consumers Dividend
Restriction, the ratio set forth in Section 8.01(k), (B) all Project
Finance Debt of the Consolidated Subsidiaries, together with the
Borrower's Ownership Interest in each such Consolidated Subsidiary and
(C) all Support Obligations of the Borrower of the types described in
clauses (iv) and (v) of the definition of Support Obligations (whether or
not each such Support Obligation or the primary obligation so supported is
fixed, conclusively determined or reasonably quantifiable) to the extent
such Support Obligations have not been previously disclosed as
"Consolidated Debt" pursuant to clause (A) above;
(d)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
Borrower, a balance sheet of the Borrower as at the end of such quarter
and statements of income and retained earnings and of cash flows of the
Borrower for the period commencing at the end of the previous fiscal year
and ending with the end of such quarter, all in reasonable detail and duly
certified (subject to year-end audit adjustments) by the chief financial
officer or chief accounting officer of the Borrower as having been
prepared in accordance with GAAP;
(e)as soon as available and in any event within 120 days after the
end of each fiscal year of the Borrower, a balance sheet of the Borrower
as at the end of such fiscal year and statements of income and retained
earnings and of cash flows of the Borrower for such fiscal year, all in
reasonable detail and duly certified (subject to year-end audit
adjustments) by the chief financial officer or chief accounting officer of
the Borrower as having been prepared in accordance with GAAP;
(f)as soon as possible and in any event (A) within 30 days after
the Borrower knows or has reason to know that any Plan Termination Event
described in clause (i) of the definition of Plan Termination Event with
respect to any Plan of the Borrower or any ERISA Affiliate of the Borrower
has occurred and could reasonably be expected to result in a material
liability to the Borrower and (B) within 10 days after the Borrower knows
or has reason to know that any other Plan Termination Event with respect
to any Plan of the Borrower or any ERISA Affiliate of the Borrower has
occurred and could reasonably be expected to result in a material
liability to the Borrower, a statement of the chief financial officer or
chief accounting officer of the Borrower describing such Plan Termination
Event and the action, if any, which the Borrower proposes to take with
respect thereto;
(g)promptly after receipt thereof by the Borrower or any of its
ERISA Affiliates from the PBGC copies of each notice received by the
Borrower or any such ERISA Affiliate of the PBGC's intention to terminate
any Plan or to have a trustee appointed to administer any Plan;
(h)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 (if any) to which the Borrower is a contributing
employer;
(i)promptly after receipt thereof by the Borrower or any of its
ERISA Affiliates from a Multiemployer Plan sponsor, a copy of each notice
received by the Borrower or any of its ERISA Affiliates concerning the
imposition or amount of withdrawal liability in an aggregate principal
amount of at least $250,000 pursuant to Section 4202 of ERISA in respect
of which the Borrower is reasonably expected to be liable;
(j)promptly after the Borrower becomes aware of the occurrence
thereof, notice of all actions, suits, proceedings or other events of the
type described in Section 6.01(f);
(k)promptly after the sending or filing thereof, copies of all
proxy statements, financial statements and reports which the Borrower
sends to its public security holders (if any), copies of all regular,
periodic and special reports which the Borrower files with the Securities
and Exchange Commission or any governmental authority which may be
substituted therefor, or with any national securities exchange, pursuant
to the Exchange Act, and copies of all final prospectuses with respect to
any securities issued or to be issued by the Borrower or any of its
Subsidiaries;
(l)as soon as possible and in any event within five days after the
occurrence of any material default under any material agreement to which
the Borrower or any of its Subsidiaries is a party, which default would
materially adversely affect the financial condition, business, results of
operations or property of the Borrower and its Subsidiaries, considered as
a whole, any of which is continuing on the date of such certificate, a
certificate of the chief financial officer of the Borrower setting forth
the details of such material default and the action which the Borrower or
any such Subsidiary proposes to take with respect thereto; and
(m)promptly after requested, such other information respecting the
business, properties, condition or operations, financial or otherwise, of
the Borrower and its Subsidiaries as any Agent or the Majority Lenders may
from time to time reasonably request in writing.
ARTICLE VIII
DEFAULTS
SECTION 8.01. Events of Default. If any of the following events
(each an "Event of Default") shall occur and be continuing, the Co-Agents
and the Lenders shall be entitled to exercise the remedies set forth in
Section 8.02:
(a)The Borrower shall fail to pay (i) any principal of any Note
when due or (ii) any interest thereon within two Business Days after such
interest shall have become due; or
(b)Any representation or warranty made by or on behalf of the
Borrower in any Loan Document or certificate or other writing delivered
pursuant thereto shall prove to have been incorrect in any material
respect when made or deemed made; or
(c)The Borrower or any of its Subsidiaries shall fail to perform or
observe any term or covenant on its part to be performed or observed
contained in Section 7.01(c), (h), (i) or (j) or in Section 7.02 hereof
(and the Borrower, each Lender and each Agent hereby agrees that an Event
of Default under this subsection (c) shall be given effect as if the
defaulting Subsidiary were a party to this Agreement); or
(d)The Borrower or any of its Subsidiaries shall fail to perform or
observe any other term or covenant on its part to be performed or observed
contained in any Loan Document and any such failure shall remain
unremedied, after written notice thereof shall have been given to the
Borrower by the Documentation Agent, for a period of 10 Business Days (and
the Borrower, each Lender and each Agent hereby agrees that an Event of
Default under this subsection (d) shall be given effect as if the
defaulting Subsidiary were a party to this Agreement); or
(e)The Borrower, any Restricted Subsidiary or Consumers shall fail
to pay any of its Debt (including any interest or premium thereon but
excluding Debt evidenced by the Notes) (i) aggregating, in the case of the
Borrower and each Restricted Subsidiary, $6,000,000 or more or, in the
case of Consumers, $25,000,000 or more, or (ii) arising under the
Indenture or any Senior Note, when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise) and such failure
shall continue after the applicable grace period, if any, specified in any
agreement or instrument relating to such Debt; or any other default under
any agreement or instrument relating to any such Debt, or any other event,
shall occur and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such default
or event is to accelerate, or to permit the acceleration of, the maturity
of such Debt; or any such Debt 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; unless in each such case
the obligee under or holder of such Debt shall have waived in writing such
circumstance so that such circumstance is no longer continuing; or
(f)(i) The Borrower, any Restricted Subsidiary or Consumers
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 an
assignment for the benefit of creditors; or (ii) any proceeding shall be
instituted by or against the Borrower, any Restricted Subsidiary or
Consumers seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of its 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, or other similar official for it or for any substantial part of
its property and, in the case of a proceeding instituted against the
Borrower, 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 the
Borrower, a Restricted Subsidiary or Consumers or the appointment of a
receiver, trustee, custodian or other similar official for the Borrower,
such Restricted Subsidiary or Consumers or any of its property) shall
occur; or (iii) the Borrower, any Restricted Subsidiary or Consumers shall
take any corporate or other action to authorize any of the actions set
forth above in this subsection (f); or
(g)Any judgment or order for the payment of money in excess of
$6,000,000 shall be rendered against the Borrower or its properties 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
(h)Any material provision of any Loan Document, after execution
hereof or delivery thereof under Article V, shall for any reason other
than the express terms hereof or thereof cease to be valid and binding on
any party thereto; or the Borrower shall so assert in writing; or
(i)There shall be imposed or enacted any Consumers Dividend
Restriction, the result of which is that the Dividend Coverage Ratio shall
be less than 1.15 to 1.0 at any time after the imposition of such
Consumers Dividend Restriction.
SECTION 8.02. Remedies. If any Event of Default has occurred and is
continuing, then the Co-Agents shall at the request, or may with the
consent, of the Required Lenders, upon notice to the Borrower (i) declare
the Commitments and the obligation of each Lender to make or Convert
Advances to be terminated, whereupon the same shall forthwith terminate,
and (ii) declare the Notes, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to be forthwith
due and payable, whereupon the Notes, all such interest and 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, however, that in
the event of an actual or deemed entry of an order for relief with respect
to the Borrower under the Federal Bankruptcy Code, (A) the Commitments and
the obligation of each Lender to make Advances shall automatically be
terminated and (B) the Notes, all such interest and 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.
ARTICLE IX
THE AGENTS
SECTION 9.01. Authorization and Action. Each Lender hereby appoints
and authorizes each of the Agents to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated
to such Agents by the terms hereof, together with such powers as are
reasonably incidental thereto. The Operational Agent is hereby expressly
authorized on behalf of each Lender, without hereby limiting any implied
authority, to receive on behalf of each of the Lenders any payment of
principal of, or interest on, the Notes and all other amounts accrued
thereunder or hereunder paid to the Operational Agent, and promptly to
distribute in accordance with Section 4.01(a) to each Lender its proper
share of all payments so received. Each Agent is hereby expressly
authorized on behalf of each Lender, without hereby limiting any implied
authority, to distribute to each Lender copies of all notices, agreements
and other materials as provided for in this Agreement and any other Loan
Document received by such Agent. As to any matters not expressly provided
for by this Agreement (including, without limitation, enforcement or
collection of the Notes), the Agents shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain
from acting (and shall be fully protected in so acting or refraining from
acting) upon the instructions of the Majority Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that the Agents shall not be required to take any
action that exposes any Agent to personal liability or that is contrary to
this Agreement or applicable law. Each Agent agrees to give to each
Lender prompt notice of each notice given to it by the Borrower pursuant
to the terms of this Agreement.
SECTION 9.02. Agents' Reliance, Etc. Neither any Agent nor any of
its directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection
with any Loan Document, except for its or their own gross negligence or
wilful misconduct. Without limitation of the generality of the foregoing:
(i) each Agent may treat the payee of any Note as the holder thereof until
the Documentation Agent receives and accepts a Lender Assignment entered
into by the Lender which is the payee of such Note, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 10.07; (ii) each
Agent may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall
not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts;
(iii) the Agents make no warranty or representation to any Lender and
shall not be responsible to any Lender for any statements, warranties or
representations made in or in connection with any Loan Document; (iv) no
Agent shall have any duty to ascertain or to inquire as to the performance
or observance of any of the terms, covenants or conditions of any Loan
Document on the part of the Borrower or to inspect any property (including
the books and records) of the Borrower; (v) no Agent shall be responsible
to any Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Loan Document; and (vi) no Agent
shall incur liability under or in respect of any Loan Document by acting
upon any notice, consent, certificate or other instrument or writing
(which may be by telegram, cable, telex, telecopy or other
teletransmission) believed by it to be genuine and signed or sent by the
proper party or parties.
SECTION 9.03. Citibank, Union Bank and Affiliates. With respect to
its Commitment and the Note issued to it, each of Citibank and Union Bank
shall have the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not an Agent; and the
term "Lender" or "Lenders" shall, unless otherwise expressly indicated,
include Citibank and Union Bank each in its individual capacity. Citibank
and Union Bank and their respective Affiliates may accept deposits from,
lend money to, act as trustee under indentures of, and generally engage in
any kind of business with, the Borrower, any of its Subsidiaries, its
Affiliates and any Person who may do business with or own securities of
the Borrower or any such Subsidiary or Affiliate, all as if Citibank and
Union Bank were not an Agent and without any duty to account therefor to
the Lenders.
SECTION 9.04. Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon the Agents or any other
Lender and based on the financial information referred to in Section
6.01(e) and such other 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 Agents or any other Lender and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement.
SECTION 9.05. Indemnification. The Lenders agree to indemnify the
Agents (to the extent not reimbursed by the Borrower), ratably according
to the respective principal amounts of the Notes then held by each of them
(or if no Notes are at the time outstanding or if any Notes are held by
Persons which are not Lenders, ratably according to the respective
Percentages of the Lenders), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Agents in any way
relating to or arising out of this Agreement or any action taken or
omitted by the Agents under this Agreement, provided that no Lender shall
be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agents' gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Agents promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Agents in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations,
legal proceedings or otherwise) of, or legal advice in respect of rights
or responsibilities under, this Agreement to the extent that the Agents
are entitled to reimbursement for such expenses pursuant to Section 10.04
but are not reimbursed for such expenses by the Borrower.
SECTION 9.06. Successor Agents. Each Agent may resign at any time
by giving written notice thereof to the Lenders and the Borrower and may
be removed at any time with or without cause by the Majority Lenders, with
any such resignation or removal to become effective only upon the
appointment of a successor Agent in such capacity, pursuant to this
Section 9.06. Upon any such resignation or removal, the Majority Lenders
shall have the right to appoint a successor Agent in such capacity which
shall be a Lender or another commercial bank or trust company reasonably
acceptable to the Borrower organized under the laws of the United States,
or of any State thereof. If no successor Agent shall have been so
appointed by the Majority Lenders, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving of notice of
resignation or the Majority Lenders' removal of the retiring Agent, then
the retiring Agent may, on behalf of the Lenders, appoint a successor
Agent in such capacity, which shall be a Lender or shall be another
commercial bank or trust company organized under the laws of the United
States or of any State thereof reasonably acceptable to the Borrower.
Upon the acceptance of any appointment as an Agent hereunder by a
successor Agent and the execution and delivery by the Borrower and the
successor Agent of an agreement relating to the fees to be paid to the
successor Agent under Section 2.02(b) hereof in connection with its acting
as an Agent hereunder, such successor Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
retiring Agent and the retiring Agent shall be discharged from its duties
and obligations under this Agreement. After any retiring Agent's
resignation or removal hereunder as an Agent, the provisions of this
Article IX shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was an Agent in such capacity under this
Agreement.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc. No amendment or waiver of any
provision of any Loan Document, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Majority Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment,
waiver or consent shall, unless in writing and signed by all the Lenders,
do any of the following: (i) waive, modify or eliminate any of the
conditions specified in Article V, (ii) increase the Commitments of the
Lenders that may be maintained hereunder or subject the Lenders to any
additional obligations, (iii) reduce the principal of, or interest on, the
Notes, any Applicable Margin or any fees or other amounts payable
hereunder (other than fees payable to the Operational Agent pursuant to
Section 2.02(b)), (iv) postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other amounts
payable hereunder (other than fees payable to the Operational Agent
pursuant to Section 2.02(b)), (v) change the percentage of the Commitments
or of the aggregate unpaid principal amount of the Notes, or the number of
Lenders which shall be required for the Lenders or any of them to take any
action hereunder, (vi) amend any Loan Document in a manner intended to
prefer one or more Lenders over any other Lenders, or (vii) amend Section
2.03(b) or this Section 10.01; and provided, further, that no amendment,
waiver or consent shall, unless in writing and signed by each Agent in
addition to the Lenders required above to take such action, affect the
rights or duties of any Agent under this Agreement or any Note. Any
request from the Borrower for any amendment, waiver or consent under this
Section 10.01 shall be addressed to the Documentation Agent.
SECTION 10.02. Notices, Etc. All notices and other communications
provided for hereunder and under the other Loan Documents shall be in
writing (including telegraphic, facsimile, telex or cable communication)
and mailed, telegraphed, telecopied, telexed, cabled or delivered, (vii)
if to the Borrower, at its address at Fairlane Plaza South, 000 Xxxx
Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X.
Sturdy, Esq., Assistant General Counsel, with a copy to Xxxxx X. Xxxxxx,
Vice President and Treasurer, 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000; (i) if to any Bank, at its Domestic Lending Office specified
opposite its name on Schedule I hereto; (ii) if to any Lender other than a
Bank, at its Domestic Lending Office specified in the Lender Assignment
pursuant to which it became a Lender; (iii) if to the Operational Agent,
at its address at 000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, Attention: Utilities Department Head; and (iv) if to the
Documentation Agent, at its address at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Utilities Department Head; or, as to each party, at such
other address as shall be designated by such party in a written notice to
the other parties. All such notices and communications shall, when
mailed, telegraphed, telecopied, telexed or cabled, be effective five days
after when deposited in the mails, or when delivered to the telegraph
company, telecopied, confirmed by telex answerback or delivered to the
cable company, respectively, except that notices and communications to any
Agent pursuant to Article II, III, or IX shall not be effective until
received by such Agent.
SECTION 10.03. No Waiver of Remedies. No failure on the part of the
Borrower, any Lender or any Agent to exercise, and no delay in exercising,
any right hereunder or under any Note shall operate as a waiver thereof;
nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 10.04. Costs, Expenses and Indemnification. (a) The
Borrower agrees to (i) reimburse on demand all reasonable costs and
expenses of each Agent (including, without limitation, reasonable fees and
expenses of counsel to the Agents) in connection with (A) the preparation,
negotiation, execution and delivery of the Loan Documents and (B) any
proposed modification, amendment, or consent relating to any Loan
Document, and (ii) to pay on demand all reasonable costs and expenses of
each Agent and, on and after the date upon which the Notes become or are
declared to be due and payable pursuant to Section 8.02 or an Event of
Default specified in Section 8.01(a) shall have occurred and be
continuing, each Lender (including, without limitation, reasonable fees
and expenses of counsel to the Agents, special Michigan counsel to the
Lenders and, from and after such date, counsel for each Lender (including
the allocated costs and expenses of in-house counsel)) in connection with
the enforcement (whether through negotiations, legal proceedings or
otherwise) of this Agreement, the Notes and the other documents to be
delivered hereunder.
(b)The Borrower hereby agrees to indemnify and hold each Lender,
each Agent and their respective officers, directors, employees,
professional advisors and affiliates (each, an "Indemnified Person")
harmless from and against any and all claims, damages, losses,
liabilities, costs or expenses (including reasonable attorney's fees and
expenses, whether or not such Indemnified Person is named as a party to
any proceeding or is otherwise subjected to judicial or legal process
arising from any such proceeding) which any of them may incur or which may
be claimed against any of them by any Person:
(i)by reason of or in connection with the execution,
delivery or performance of any of the Loan Documents or any
transaction contemplated thereby, or the use by the Borrower of
the proceeds of any Advance;
(ii)in connection with any documentary taxes, assessments
or charges made by any governmental authority by reason of the
execution and delivery of any of the Loan Documents; or
(iii)in connection with or resulting from the utilization,
storage, disposal, treatment, generation, transportation,
release or ownership of any Hazardous Substance (i) at, upon or
under any property of the Borrower or any of its Affiliates or
(ii) by or on behalf of the Borrower or any of its Affiliates at
any time and in any place;
provided, however, that nothing contained in this subsection (b) shall
constitute a relinquishment or waiver of the Borrower's rights to any
independent claim that the Borrower may have against any Indemnified
Person for such Indemnified Person's gross negligence or wilful
misconduct, but no Lender shall be liable for any such conduct on the part
of any Agent or any other Lender, and no Agent shall be liable for any
such conduct on the part of any Lender.
(c)The Borrower's other obligations under this Section 10.04 shall
survive the repayment of all amounts owing to the Lenders and the Agents
under the Loan Documents and the termination of the Commitments. If and
to the extent that the obligations of the Borrower under this Section
10.04 are unenforceable for any reason, the Borrower agrees to make the
maximum contribution to the payment and satisfaction thereof which is
permissible under applicable law.
SECTION 10.05. Right of Set-off. (a) Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 8.02 to
authorize the Co-Agents to declare the Notes due and payable pursuant to
the provisions of Section 8.02, each Lender is hereby authorized at any
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 the Borrower,
against any and all of the obligations of the Borrower now or hereafter
existing under this Agreement and the Note held by such Lender,
irrespective of whether or not such Lender shall have made any demand
under this Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees to notify promptly the Borrower after any
such set-off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such set-off
and application. The rights of each Lender under this Section 10.05 are
in addition to other rights and remedies (including, without limitation,
other rights of set-off) which such Lender may have.
(b)The Borrower agrees that it shall have no right of off-set,
deduction or counterclaim in respect of its obligations hereunder, and
that the obligations of the Lenders hereunder are several and not joint.
Nothing contained herein shall constitute a relinquishment or waiver of
the Borrower's rights to any independent claim that the Borrower may have
against any Agent or any Lender for such Agent's or such Lender's, as the
case may be, gross negligence or wilful misconduct, but no Lender shall be
liable for any such conduct on the part of any Agent or any other Lender,
and no Agent shall be liable for any such conduct on the part of any
Lender.
SECTION 10.06. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and the Agents
and when the Documentation Agent shall have been notified by each Bank
that such Bank has executed it and thereafter shall be binding upon and
inure to the benefit of the Borrower, the Agents and each Lender and their
respective successors and assigns, except that the Borrower shall not have
the right to assign its rights hereunder or any interest herein without
the prior written consent of the Lenders.
SECTION 10.07. Assignments and Participation. (a) Each Lender may,
with the consent of the Borrower (such consent not to be unreasonably
withheld or delayed), assign to one or more banks or other entities all or
a portion of its rights and obligations under this Agreement and the other
Loan Documents (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes held by it);
provided, however, that (i) each such assignment shall be of a constant,
and not a varying, percentage of all of the assigning Lender's rights and
obligations under this Agreement, (ii) the amount of the Commitment of the
assigning Lender being assigned pursuant to each such assignment
(determined as of the date of the Lender Assignment with respect to such
assignment) shall in no event be less than the lesser of the amount of
such Lender's Commitment and $10,000,000 and shall be an integral multiple
of $5,000,000, (iii) each such assignment shall be to an Eligible
Assignee, and (iv) the parties to each such assignment shall execute and
deliver to the Documentation Agent (with a copy to the Operational Agent),
for its acceptance and recording in the Register, a Lender Assignment,
together with any Note or Notes subject to such assignment and a
processing and recordation fee of $2,500; and provided further, however,
that the consent of the Borrower shall not be required for any assignments
by a Lender to any of its Affiliates or to any other Lender or any of its
Affiliates. Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in each Lender Assignment, which
effective date shall be at least five Business Days after the execution
thereof, (A) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it
pursuant to such Lender Assignment, have the rights and obligations of a
Lender hereunder and (B) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it to
an Eligible Assignee pursuant to such Lender Assignment, relinquish its
rights and be released from its obligations under this Agreement (and, in
the case of a Lender Assignment covering all or the remaining portion of
an assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto); provided, however, that the
limitation set forth in clause (iii), above, shall not apply if an Event
of Default shall have occurred and be continuing and the Co-Agents shall
have declared all Advances to be immediately due and payable hereunder.
The Documentation Agent agrees to give prompt notice to the Lenders and
the Borrower of any assignment or participation of its rights and
obligations as a Bank hereunder. Notwithstanding anything to the contrary
contained in this Agreement, any Lender may at any time assign all or any
portion of the Advances owing to it to any Affiliate of such Lender. The
assigning Lender shall promptly notify the Borrower of any such
assignment. No such assignment, other than to an Eligible Assignee, shall
release the assigning Lender from its obligations hereunder.
(b)By executing and delivering a Lender Assignment, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as
provided in such Lender Assignment, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection
with any Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of any Loan Document or
any other instrument or document furnished pursuant thereto; (ii) such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or
the performance or observance by the Borrower of any of its obligations
under any Loan Document or any other instrument or document furnished
pursuant thereto; (iii) such assignee confirms that it has received a copy
of each Loan Document, together with copies of the financial statements
referred to in Section 6.01(e) and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to
enter into such Lender Assignment; (iv) such assignee will, independently
and without reliance upon the Agents, such assigning Lender or any other
Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents; (v) such assignee
confirms that it is an Eligible Assignee (unless an Event of Default shall
have occurred and be continuing and the Co-Agents shall have declared all
Advances to be immediately due and payable hereunder, in which case no
such confirmation is necessary); (vi) such assignee appoints and
authorizes each Agent to take such action as agent on its behalf and to
exercise such powers under the Loan Documents as are delegated to each
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of
the Loan Documents are required to be performed by it as a Lender.
(c)The Documentation Agent shall maintain at its address referred
to in Section 10.02 a copy of each Lender Assignment delivered to and
accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of
the Advances owing to, each Lender from time to time (the "Register").
The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Agents and the
Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(d)Upon its receipt of a Lender Assignment executed by an assigning
Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the
Documentation Agent shall, if such Lender Assignment has been completed
and is in substantially the form of Exhibit G, (i) accept such Lender
Assignment, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the Borrower. Within five
Business Days after its receipt of such notice, the Borrower, at its own
expense, shall execute and deliver to the Documentation Agent in exchange
for the surrendered Note or Notes a new Note to the order of such Eligible
Assignee in an amount equal to the Commitment assumed by it pursuant to
such Lender Assignment and, if the assigning Lender has retained a
Commitment hereunder, a new Note to the order of the assigning Lender in
an amount equal to the Commitment retained by it hereunder. Such new Note
or Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note or Notes, shall be dated the
effective date of such Lender Assignment and shall otherwise be in
substantially the form of Exhibit A.
(e)Each Lender may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations
under the Loan Documents (including, without limitation, all or a portion
of its Commitment, the Advances owing to it and the Note or Notes held by
it); provided, however, that (i) such Lender's obligations under this
Agreement (including, without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note
for all purposes of this Agreement, and (iv) the Borrower, the Agents and
the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement.
(f)Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
Section 10.07, disclose to the assignee or participant or proposed
assignee or participant, any information relating to the Borrower
furnished to such Lender by or on behalf of the Borrower; provided that,
prior to any such disclosure, the assignee or participant or proposed
assignee or participant shall agree, in accordance with the terms of
Section 10.08, to preserve the confidentiality of any Confidential
Information received by it from such Lender.
(g)If any Lender (or any bank or other entity to which such Lender
has sold a participation) shall make any demand for payment under Section
4.04(a) or (d), then within 30 days after any such demand (if, but only
if, such demanded payment has been made by the Borrower) or notice, the
Borrower may, with the approval of the Agents (which approval shall not be
unreasonably withheld) and provided that no Event of Default or Unmatured
Default shall then have occurred and be continuing, demand that such
Lender assign in accordance with this Section 10.07 to one or more
Eligible Assignees designated by the Borrower all (but not less than all)
of such Lender's Commitment and the Advances owing to it within the period
ending on the later to occur of (x) 30 days after any such demand or
notice by such Lender under Section 4.04(a) or (d) as applicable, and (y)
the last day of the longest of the then current Interest Periods for such
Advances. If any such Eligible Assignee designated by the Borrower shall
fail to consummate such assignment on terms acceptable to such Lender, or
if the Borrower shall fail to designate any such Eligible Assignees for
all or part of such Lender's Commitment or Advances, then such demand by
the Borrower shall become ineffective; it being understood for purposes of
this subsection (g) that such assignment shall be conclusively deemed to
be on terms acceptable to such Lender, and such Lender shall be compelled
to consummate such assignment to an Eligible Assignee designated by the
Borrower, if such Eligible Assignee (1) shall agree to such assignment by
entering into a Lender Assignment with such Lender and (2) shall offer
compensation to such Lender in an amount equal to all amounts then owing
by the Borrower to such Lender hereunder and under the Note made by the
Borrower to such Lender, whether for principal, interest, fees, costs or
expenses (other than any amount demanded for payment pursuant to clause
4.04(a) or (d), and payable by the Borrower as a condition to the
Borrower's right to demand such assignment) or otherwise. In addition, in
the case of any amount demanded for payment by any Lender (or such a
participant) pursuant to Section 4.04(a) or (d), the Borrower may, in the
case of any such Lender, with the approval of the Agents (which approval
shall not be unreasonably withheld) and provided that no Event of Default
or Unmatured Default shall then have occurred and be continuing, terminate
all (but not less than all) such Lender's Commitment and prepay all (but
not less than all) such Lender's Advances not so assigned, together with
all interest accrued thereon to the date of such prepayment and all fees,
costs and expenses and other amounts then owing by the Borrower to such
Lender hereunder and under the Note made by the Borrower to such Lender,
at any time from and after such later occurring day in accordance with
Sections 2.03 and 4.03(a) hereof (but without the requirement stated
therein for ratable treatment of the other Lenders), if and only if, after
giving effect to such termination and prepayment, the sum of the aggregate
principal amount of the Advances of all Lenders then outstanding does not
exceed the then remaining Commitments of the Lenders. Notwithstanding
anything set forth above in this subsection (g) to the contrary, the
Borrower shall not be entitled to compel the assignment by any Lender
demanding payment under Section 4.04(a) of its Commitment and Advances or
terminate and prepay the Commitment and Advances of such Lender if, prior
to or promptly following any such demand by the Borrower, such Lender
shall have changed or shall change, as the case may be, its Applicable
Lending Office for its Eurodollar Rate Advances so as to eliminate the
further incurrence of such increased cost. In furtherance of the
foregoing, any such Lender demanding payment or giving notice as provided
above agrees to use reasonable efforts to so change its Applicable Lending
Office if, to do so, would not result in the incurrence by such Lender of
additional costs or expenses which it deems material or, in the sole
judgment of such Lender, be inadvisable for regulatory, competitive or
internal management reasons.
(h)Anything in this Section 10.07 to the contrary notwithstanding,
any Lender may assign and pledge all or any portion of its Commitment and
the Advances owing to it to any Federal Reserve Bank (and its transferees)
as collateral security pursuant to Regulation A of the Board of Governors
of the Federal Reserve System and any Operating Circular issued by such
Federal Reserve Bank. No such assignment shall release the assigning
Lender from its obligations hereunder.
SECTION 10.08. Confidentiality. In connection with the negotiation
and administration of this Agreement and the other Loan Documents, the
Borrower has furnished and will from time to time furnish to the Agents
and the Lenders (each, a "Recipient") written information which is
identified to the Recipient when delivered as confidential (such
information, other than any such information which (i) was publicly
available, or otherwise known to the Recipient, at the time of disclosure,
(ii) subsequently becomes publicly available other than through any act or
omission by the Recipient or (iii) otherwise subsequently becomes known to
the Recipient other than through a Person whom the Recipient knows to be
acting in violation of his or its obligations to the Borrower, being
hereinafter referred to as "Confidential Information"). The Recipient
will not knowingly disclose any such Confidential Information to any third
party (other than to those persons who have a confidential relationship
with the Recipient), and will take all reasonable steps to restrict access
to such information in a manner designed to maintain the confidential
nature of such information, in each case until such time as the same
ceases to be Confidential Information or as the Borrower may otherwise
instruct. It is understood, however, that the foregoing will not restrict
the Recipient's ability to freely exchange such Confidential Information
with prospective participants in or assignees of the Recipient's position
herein, but the Recipient's ability to so exchange Confidential
Information shall be conditioned upon any such prospective participant's
entering into an agreement as to confidentiality similar to this Section
10.08. It is further understood that the foregoing will not prohibit the
disclosure of any or all Confidential Information if and to the extent
that such disclosure may be required (i) by a regulatory agency or
otherwise in connection with an examination of the Recipient's records by
appropriate authorities, (ii) pursuant to court order, subpoena or other
legal process or (iii) otherwise, as required by law; in the event of any
required disclosure under clause (ii) or (iii), above, the Recipient
agrees to use reasonable efforts to inform the Borrower as promptly as
practicable to the extent not prohibited by law.
SECTION 10.09. Waiver of Jury Trial. THE BORROWER, THE AGENTS, THE
CO-MANAGER AND THE LENDERS EACH HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OTHER
INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER OR THEREUNDER.
SECTION 10.10. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of
New York. The Borrower, the Lenders, the Co-Manager and the Agents each
(i) irrevocably submits to the jurisdiction of any New York State court or
Federal court sitting in New York City in any action arising out of any
Loan Document, (ii) agrees that all claims in such action may be decided
in such court, (iii) waives, to the fullest extent it may effectively do
so, the defense of an inconvenient forum and (iv) consents to the service
of process by mail. A final judgment in any such action shall be
conclusive and may be enforced in other jurisdictions. Nothing herein
shall affect the right of any party to serve legal process in any manner
permitted by law or affect its right to bring any action in any other
court.
SECTION 10.11. Relation of the Parties; No Beneficiary. No term,
provision or requirement, whether express or implied, of any Loan
Document, or actions taken or to be taken by any party thereunder, shall
be construed to create a partnership, association, or joint venture
between such parties or any of them. No term or provision of the Loan
Documents shall be construed to confer a benefit upon, or grant a right or
privilege to, any Person other than the parties hereto.
SECTION 10.12. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute one and
the same Agreement.
SECTION 10.13. Survival of Agreement. All covenants, agreements,
representations and warranties made herein and in the certificates
pursuant hereto shall be considered to have been relied upon by the Agents
and the Lenders and shall survive the making by the Lenders of the
Advances and the execution and delivery to the Lenders of the Notes
evidencing the Advances and shall continue in full force and effect so
long as any Note or any amount due hereunder is outstanding and unpaid or
any Commitment of any Lender has not been terminated.
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of
the date first above written.
CMS ENERGY CORPORATION
By /s/A. M. Xxxxxx
A. M. Xxxxxx
Senior Vice President and
Chief Financial Officer
S-2
Commitment
$10,000,000 CITIBANK, N.A.,
as Co-Agent, Documentation Agent and Bank
By /s/Xxxx Xxxxxxx
Title: Attorney in Fact
S-3
Commitment
$10,000,000 UNION BANK,
as Co-Agent, Operational Agent and Bank
By /s/Xxxx X. Xxxxxxxxx
Title: V.P.
S-4
Commitment
$10,000,000 BANK OF AMERICA ILLINOIS
as Co-Manager and Bank
By /s/Xxxxxx X. Xxxxx
Title: Authorized Officer
S-5
Commitment
$10,000,000 BZW DIVISION OF
BARCLAYS BANK PLC,
as Co-Manager and Bank
By /s/Sydney X. Xxxxxx
Sydney X. Xxxxxx
Title: Associate Director
S-6
Commitment
$10,000,000 THE FIRST NATIONAL BANK
OF BOSTON, as Co-Manager and Bank
By /s/Xxxxxxx X. Low
Xxxxxxx X. Low
Title: Division Executive
S-7
Commitment
$10,000,000 THE FIRST NATIONAL BANK
OF CHICAGO, as Co-Manager and Bank
By /s/Xxxxx Xxxxxxx
Title: Assistant Vice President
S-8
Commitment
$10,000,000 THE CHASE MANHATTAN BANK,
N.A., as Co-Manager and Bank
By /s/Xxxxxx Xxxxx
Xxxxxx X. Xxxxx
Title: Vice President
S-9
Commitment
$20,000,000 TORONTO DOMINION (TEXAS), INC.
By /s/Xxxx Xxxxxxx
Xxxx Xxxxxxx
Title: Vice President
S-10
Commitment
$15,000,000 COMERICA BANK
By /s/Xxxxxxx X. Xxxxxxx
Title: Vice President
S-11
Commitment
$10,000,000 BANK OF MONTREAL
By /s/Xxxxxx X. Xxxxxx
Title: Director
S-12
Commitment
$10,000,000 MICHIGAN NATIONAL BANK
By /s/Xxxx X. Xxxx
Title: Vice President
___________________________
Total: $125,000,000
EXHIBIT A
FORM OF PROMISSORY NOTE
U.S.$ Dated: November __, 1995
FOR VALUE RECEIVED, the undersigned, CMS ENERGY CORPORATION, a
Michigan corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order
of (the "Lender") for the account of its Applicable
Lending Office (as defined in the Agreement referred to below) the
principal sum of U.S.$[amount of the Lender's Commitment in figures] at
such times and in such installments as are specified in the Agreement;
provided, however, that the last such installment payable on the
Termination Date (as defined in the Agreement) shall be in an amount
necessary to repay in full the unpaid principal amount thereof.
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full,
at such interest rates, and payable at such times, as are specified in the
Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Union Bank, as Operational Agent, at its offices at
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, in
same day funds. All payments made on account of the principal amount
thereof, shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto which is part of this
Promissory Note, provided that the failure to so record any payment on
account thereof shall not affect the payment obligations of the Borrower
hereunder or under the Agreement.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Term Loan Agreement, dated as of
November 21, 1995 (as amended, modified or supplemented from time to time,
the "Agreement", the terms defined therein and not otherwise defined
herein being used herein as therein defined), among the Borrower, the
Lender and certain other Lenders parties thereto, the Co-Agents, the
Documentation Agent and the Operational Agent, and the Loan Documents
referred to therein and entered into pursuant thereto. The Agreement,
among other things, contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof
upon the terms and conditions therein specified.
CMS ENERGY CORPORATION
By
Senior Vice President and
Chief Financial Officer
PAYMENTS OF PRINCIPAL
Unpaid
Amount of Principal PrincipalNotation Made
Date Paid or Prepaid Balance By
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EXHIBIT B
FORM OF NOTICE OF BORROWING
[Date]
Union Bank, as Operational
Agent for the Lenders parties
to the Credit Agreement
referred to below
Attention:Xxxxx Xxxxxxx Xxxxx
Assistant Vice President
Ladies and Gentlemen:
The undersigned, CMS Energy Corporation, refers to the Term
Loan Agreement, dated as of November 21, 1995 (as amended, modified or
supplemented from time to time, the "Agreement", the terms defined therein
and not otherwise defined herein being used herein as therein defined),
among the Borrower, the Lenders named therein, the Co-Agents, the
Documentation Agent and the Operational Agent, and hereby gives you
notice, irrevocably, pursuant to Section 3.01 of the Agreement that the
undersigned hereby requests a Borrowing under the Agreement, and in that
connection sets forth below the information relating to such Borrowing
(the "Proposed Borrowing") as required by Section 3.01(a) of the
Agreement:
(i) The Business Day of the Proposed Borrowing is
, 19 .
(ii) The Type of Advances comprising the Proposed Borrowing
is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$ .
1[(iv) The initial Interest Period for each Advance made as
part of the Proposed Borrowing is ____ months.]
The undersigned hereby acknowledges that the delivery of this
Notice of Borrowing shall constitute a representation and warranty by the
Borrower that, on the date of the Proposed Borrowing, the statements
contained in Section 5.01(c) of the Agreement are true.
Very truly yours,
CMS ENERGY CORPORATION
By
Name:
Title:
------------------
1 To be included for a Proposed Borrowing comprised of
Eurodollar Rate Advances.
EXHIBIT C
FORM OF NOTICE OF CONVERSION
[Date]
Union Bank, as Operational
Agent for the Lenders parties
to the Credit Agreement
referred to below
Attention:Xxxxx Xxxxxxx Xxxxx
Assistant Vice President
Ladies and Gentlemen:
The undersigned, CMS Energy Corporation, refers to the Term
Loan Agreement, dated as of November 21, 1995 (as amended, modified or
supplemented from time to time, the "Agreement", the terms defined therein
and not otherwise defined herein being used herein as therein defined),
among the Borrower, the Lenders named therein, the Co-Agents, the
Documentation Agent and the Operational Agent, and hereby gives you
notice, irrevocably, pursuant to Section 3.02 of the Agreement that the
undersigned hereby requests a Conversion under the Agreement, and in that
connection sets forth below the information relating to such Conversion
(the "Proposed Conversion") as required by Section 3.02 of the Agreement:
(i) The Business Day of the Proposed Conversion is .
(ii)The Type of Advances comprising the Proposed Conversion
is [Base Rate Advances] [Eurodollar Rate Advances].
(iii)The aggregate amount of the Proposed Conversion is
$ .
(iv)The Type of Advances to which such Advances are proposed
to be Converted is [Base Rate Advances] [Eurodollar Rate Advances].
(v) The Interest Period for each Advance made as part of the
Proposed Conversion is ____ month(s).1
The undersigned hereby certifies that the Borrower's request
for the Proposed Conversion is made in compliance with Sections 3.02, 3.03
and 3.04 of the Agreement. The undersigned hereby acknowledges that the
delivery of this Notice of Conversion shall constitute a representation
and warranty by the Borrower that, on the date of the Proposed Conversion,
[(i)] the statements contained in Section 5.02(a) of the Agreement are
true and [(ii) no Unmatured Default [(other than an Unmatured Default
resulting from the failure of the Borrower to comply with the ratio set
forth in Section 7.01(j) of the Agreement)] 2 has occurred and is
continuing]3.
Very truly yours,
CMS ENERGY CORPORATION
By
Name:
Title:
-------------------
1 Delete for Base Rate Advances.
2 Include only if an Unmatured Default has occurred and is
continuing as the result of the failure of the Borrower to comply
with the ratio set forth in Section 7.01(j) of the Agreement. In
such case, a Conversion into Eurodollar Rate Advances with an
Interest Period not to exceed three months in duration is
permitted pursuant to Section 3.04(a)(vi) of the Agreement.
3 Delete if Conversion is into Base Rate Advances.
>
EXHIBIT D
FORM OF OPINION
OF COUNSEL FOR THE BORROWER
November __, 1995
To each of the Lenders parties to the Term Loan Agreement referred to
below, and to Citibank, N.A. and Union Bank, as Agents under the Term
Loan Agreement
Ladies and Gentlemen:
This letter is furnished to you pursuant to
Section 5.01(a)(viii)(A) of the Term Loan Agreement, dated as of
November __, 1995 (the "Agreement"), among CMS Energy Corporation (the
"Borrower"), the Banks parties thereto and the other Lenders from time to
time parties thereto, Citibank, N.A. and Union Bank, as Co-Agents,
Citibank, N.A., as Documentation Agent, and Union Bank, as Operational
Agent. Capitalized terms not defined herein have the meanings ascribed
thereto in the Agreement and the other Loan Documents (as defined in the
Agreement).
I am Assistant General Counsel of the Borrower and I, or an
attorney or attorneys under my general supervision, have represented the
Borrower in connection with the preparation, execution and delivery of,
and the Drawdown made under, the Agreement and other Loan Documents.
In that capacity, I, or an attorney or attorneys under my general
supervision, have examined:
(a) The Agreement;
(b) The Notes;
(c) The Articles of Incorporation of the Borrower and all
amendments thereto (the "Charter"); and
(d) The by-laws of the Borrower and all amendments thereto
(the "By-laws").
In addition, I, or an attorney or attorneys under my general
supervision, have examined the originals, or copies certified to my
satisfaction, of such other corporate records of the Borrower,
certificates of public officials and of officers of the Borrower, and
agreements, instruments and other documents, as I have deemed necessary as
a basis for the opinions expressed below. As to various questions of fact
material to such opinions, I have, when relevant facts were not
independently established by me, relied upon the representations of
officers of the Borrower in the Loan Documents, and upon certificates of
the Borrower or their respective officers or of public officials.
I have assumed (i) the due execution and delivery, pursuant to due
authorization, of each document referred to in clauses (a) through (b)
above by all parties to such document (other than the Borrower), (ii) the
authenticity of all such documents submitted to us as originals, (iii) the
genuineness of all signatures (other than those of the Borrower), and
(iv) the conformity to the originals of all such documents submitted to us
as copies.
Based upon the foregoing and upon such investigation as we have
deemed necessary, I am of the following opinion:
1. The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of Michigan.
2. The execution, delivery and performance by the Borrower of the
Agreement, the Notes and the other Loan Documents to which it is,
or is to be, a party, are within the corporate power and authority
of the Borrower, have been duly authorized by all necessary
corporate action, and do not contravene (a) the Charter or the
By-laws, (b) any provision of applicable law or (c) any legal or
contractual restriction binding on the Borrower or its properties;
and such execution, delivery and performance do not result in or
require the creation or imposition of any mortgage, deed of trust,
pledge, or Lien upon or with respect to any of its properties.
The Agreement and the Notes have been duly executed and delivered
on behalf of the Borrower.
3. Except as disclosed in the Borrower's Quarterly Report on Form
10-Q for the period ended September 30, 1995, there are no pending
or threatened actions or proceedings against the Borrower or its
properties before any court, governmental agency or arbitrator,
that could, if adversely determined, reasonably be expected to
materially adversely affect the financial condition, properties,
business or operations of the Borrower, the legality, validity or
enforceability of the Agreement or any other Loan Document to
which the Borrower is, or is to be, a party.
4. No authorization or approval or other action by, and no notice to
or filing with, any Michigan governmental authority or regulatory
body (including, without limitation, the Michigan Public Service
Commission) is required for the valid execution, delivery and
performance by the Borrower of the Agreement and the other Loan
Documents to which it is, or is to be, a party.
5. In any action or proceeding arising out of or relating to the
Agreement, the Notes or any other Loan Document to which the
Borrower is, or is to be, a party in any Michigan state court or
any Federal court sitting in the State of Michigan, such court
would recognize and give effect to the provisions of the
Agreement, the Notes or any other Loan Document, as the case may
be, wherein the parties thereto agree that the Agreement, the
Notes or such other Loan Document, as the case may be, shall be
governed by, and construed in accordance with, the laws of the
State of New York, except in the case of those provisions set
forth in the Agreement, the Notes and the other Loan Documents the
enforcement of which would contravene a fundamental policy of the
State of Michigan. In the course of our review of the Agreement,
the Notes and the other Loan Documents, nothing has come to my
attention to indicate that any of such provisions would do so.
The opinions expressed herein are limited to the laws of the State
of Michigan and the Federal laws of the United States of America.
I consent to the reliance on this opinion by King & Spalding in
their opinion to you of even date herewith delivered pursuant to Section
5.01(a)(viii)(B) of the Agreement. Except as otherwise specified herein,
this opinion is being delivered solely for the benefit of the parties to
whom it is addressed. Accordingly, it may not be quoted, filed with any
governmental authority or otherwise circulated or utilized for any other
purpose without my prior written consent.
Very truly yours,
EXHIBIT E
FORM OF OPINION OF COUNSEL TO THE AGENTS
November 21, 1995
To the Banks and other Lenders parties
to the Agreement herein referred to and
to Citibank, N.A. and Union Bank, as Agents
CMS Energy Corporation
Ladies and Gentlemen:
We have acted as special New York counsel to Citibank, N.A. and
Union Bank, individually and as Agents, in connection with the execution
and delivery of, and the making of the Drawdown on this date under, the
Term Loan Agreement, dated as of November 21, 1995 (the "Agreement"),
among CMS Energy Corporation, the Banks parties thereto and the other
Lenders from time to time parties thereto, and Citibank, N.A. and Union
Bank, as Co-Agents. Terms defined in the Agreement are used herein as
therein defined.
In this connection, we have examined the following documents:
1. counterparts of the Agreement, executed by the parties
thereto;
2. the Notes to the order of each Bank; and
3. the other documents furnished to the Agents pursuant to
Section 5.01(a) of the Agreement, including (without limitation)
the opinion (the "Opinion") of Xxxxxx X. Sturdy, Esq., Assistant
General Counsel of the Borrower.
In our examination of the documents referred to above, we have
assumed the authenticity of all such documents submitted to us as
originals, the genuineness of all signatures, the due authority of the
parties executing such documents and the conformity to the originals of
all such documents submitted to us as copies. We have further assumed
that you have evaluated, and are satisfied with, the creditworthiness of
the Borrower and the business and financial terms evidenced by the Loan
Documents. We have relied, as to factual matters, on the documents we
have examined.
To the extent that our opinions expressed below involve
conclusions as to matters governed by law other than the law of the State
of New York, we have relied upon the Opinion and have assumed without
independent investigation the correctness of the matters set forth
therein, our opinions expressed below being subject to the assumptions,
qualifications and limitations set forth in the Opinion.
Based upon and subject to the foregoing, and subject to the
qualifications set forth below, we are of the opinion that the Agreement
and the other Loan Documents are, and upon delivery for value received,
the Notes will be, the legal, valid and binding obligations of the
Borrower, enforceable against the Borrower in accordance with their
respective terms.
Our opinion is subject to the following qualifications:
(a) The enforceability of the Borrower's obligations under the
Agreement, the Notes and the other Loan Documents is subject to the effect
of any applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar law affecting creditors' rights
generally.
(b) The enforceability of the Borrower's obligations under the
Agreement, the Notes and the other Loan Documents is subject to the effect
of general principles of equity, including (without limitation) concepts
of materiality, reasonableness, good faith and fair dealing (regardless of
whether considered in a proceeding in equity or at law). Such principles
of equity are of general application, and, in applying such principles, a
court, among other things, might not allow a contracting party to exercise
remedies in respect of a default deemed immaterial, or might decline to
order an obligor to perform covenants.
(c) We note further that, in addition to the application of
equitable principles described above, courts have imposed an obligation on
contracting parties to act reasonably and in good faith in the exercise of
their contractual rights and remedies, and may also apply public policy
considerations in limiting the right of parties seeking to obtain
indemnification under circumstances involving securities laws or where the
conduct of such parties is determined to have constituted negligence.
(d) We express no opinion herein as to (i) Section 9.05 of the
Credit Agreement, (ii) the enforceability of provisions purporting to
grant to a party conclusive rights of determination, (iii) the
availability of specific performance or other equitable remedies, (iv) the
enforceability of rights to indemnity under federal or state securities
laws or (v) the enforceability of waivers by parties of their respective
rights and remedies under law.
(e) Our opinions expressed above are limited to the law of the
State of New York, and we do not express any opinion herein concerning any
other law.
The foregoing opinion is solely for your benefit and may not be
relied upon by any other person or entity, other than any Person that may
become a Lender under the Credit Agreement after the date hereof.
Very truly yours,
MEO:PICS:PSD
EXHIBIT F
COMPUTATIONS USED BY BORROWER
IN DETERMINING COMPLIANCE WITH COVENANTS
CONTAINED IN SECTIONS 7.01(i) AND 7.01(j)
(Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed thereto in the Term Loan Agreement dated as of
November 21, 1995, among CMS Energy Corporation, the banks named therein,
and Citibank, N.A. and Union Bank, as Co-Agents)
I. SECTION 7.01(i) (Consolidated Leverage Ratio)
(i) Consolidated Debt
(a) Debt of the Borrower (See worksheet
set forth on Schedule I hereto)$
------
(b)1 Aggregate debt (as such term is
construed in accordance with GAAP)
of the Consolidated Subsidiaries$
------
Total Consolidated Debt$
------
--------
(ii) Consolidated Capital
(a) Total Consolidated Debt (See (i) above)$
------
(b)2 Consolidated equity of the common
stockholders of the Borrower and the
Consolidated Subsidiaries$
------
(c)2 Consolidated equity of the preference
stockholders of the Borrower and the
Consolidated Subsidiaries$
------
(d)2 Consolidated equity of the preferred
stockholders of the Borrower and the
Consolidated Subsidiaries$
------
Total Consolidated Capital$
--------
(iii)Consolidated Leverage Ratio (i/ii)
---------------------------------------------------------
--------
Maximum Ratio - Section 7.01(i) ------
II. SECTION 7.01(j) (Cash Dividend Coverage Ratio)
(i) Cash Dividend Income
(a) Cash Dividend Income $
------
(b) 25% of Equity Distributions
received by the Borrower
(not to exceed $10,000,000)$
------
--------
---------------------
1 To the extent included, Project Finance Debt of any Consolidated
Subsidiary shall be included only to the extent of the Borrower's
Ownership Interest in such Consolidated Subsidiary.
2 To the extent included in (b), (c) or (d) above, Project Finance
Equity of the Borrower and the Consolidated Subsidiaries in any
Consolidated Subsidiary should be included only to the extent of
the Borrower's Ownership Interest in each such Consolidated
Subsidiary.
(c) All amounts received by the
Borrower from its Subsidiaries
and Affiliates constituting
reimbursement of interest expense
(including commitment, guaranty
and letter of credit fees) paid by
the Borrower on behalf of any
such Subsidiary or Affiliate$
------
Total Cash Dividend Income$
------
--------
(ii) Interest expense (including commitment,
guaranty and letter of credit fees) accrued
by the Borrower in respect of all Debt$
------
(iii)Cash Dividend Income/Interest
Expense Ratio ((i)/(ii)) ------
Maximum Ratio - Section 7.01(j) ------
III. SECTION Project Finance Debt3
IV. SECTION Support Obligations4
-----------------------
3 Set forth all Project Finance Debt of any Consolidated Subsidiary
and the Borrower's Ownership Interest in such Consolidated
Subsidiary.
4 Set forth all Support Obligations of the Borrower of the types
described in clauses (iv) and (v) of the definition of Support
Obligations (whether or not each such Support Obligation or the
primary obligation so supported is fixed, conclusively determined
or reasonably quantifiable) unless such Support Obligation is
previously disclosed as "Consolidated Debt" pursuant to Section I
or II above.
SCHEDULE I
TO EXHIBIT F
Computation of Aggregate Debt of the Borrower
---------------------------------------------
Aggregate Debt of the Borrower1 (without duplication) any and all
indebtedness, liabilities and other monetary obligations of the Borrower
(whether for principal, interest, fees, costs, expenses or otherwise, and
contingent or otherwise):
(i) for borrowed money or evidenced
by bonds, debentures, notes or other
similar instruments $
------
(ii) 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) $
------
(iii)as lessee under leases which shall
have been or should be, in accordance
with GAAP, recorded as capital leases$
------
(iv) under reimbursement or similar
agreements with respect to letters of
credit issued thereunder $
------
(v) under any interest rate swap, "cap",
"collar" or other hedging agreements;
provided, however, for purposes of the
calculation of Debt for this clause
only, the actual amount of Debt of the
Borrower shall be determined on a
net basis to the extent such agreements
permit such amounts to be calculated on
a net basis $
------
(vi) to pay rent or other amounts under leases
entered into in connection with sale and
leaseback transactions involving assets of
the Borrower being sold in connection
therewith $
------
(vii)arising from any accumulated funding
deficiency (as defined in Section 412(a)
of the Internal Revenue Code of 1986,
as amended) for a Plan $
------
(viii)direct or indirect guaranties in respect
of, and obligations to purchase or
otherwise acquire, or otherwise to
warrant or hold harmless, pursuant
to a legally binding agreement, a
creditor against loss in respect of,
Debt of others referred to in clauses
(i) through (vii) above $
------
-------------------
1 Debt of the Borrower shall (a) include only 50% of the aggregate
principal amount of Subordinated Debt and Preferred Securities
described in clause (b) of the definition of Preferred Securities,
subject to a maximum exclusion of $100,000,000 in the aggregate,
and (b) not include Subordinated Debt or Preferred Securities if
such Subordinated Debt or Preferred Securities, as the case may
be, is mandatorily convertible into common stock of the Borrower
upon terms and conditions satisfactory to the Majority Lenders.
(ix) other guaranty or similar financial
obligations in respect of the performance
of others, including, without limitation,
any financial obligation, contingent or
otherwise, of the Borrower guaranteeing
or otherwise supporting any Debt or other
obligation of any other Person in any
manner, whether directly or indirectly,
and including, without limitation, any
obligation of such Person, direct or indirect$
------
(A) to purchase or pay (or advance or
supply funds for the purchase or
payment of) such Debt or to
purchase (or to advance or supply
funds for the purchase of) any
security for the payment of such
Debt $
-------
(B) to purchase property, securities or
services for the purpose of assuring
the owner of such Debt of the
payment of such Debt $
-------
(C) to maintain working capital, equity
capital, available cash or other
financial statement condition of the
primary obligor so as to enable the
primary obligor to pay such Debt$
------
(D)2 to provide equity capital under or
in respect of equity subscription
arrangements (to the extent that
such obligation to provide equity
capital does not otherwise constitute
Debt) $
------
(E)2 to perform, or arrange for the
performance of, any non-monetary
obligations or non-funded debt
payment obligations of the primary
obligor $
------
(F) Other $
------
Total of Debt of the Borrower$
------
------
-----------------------
2 For purposes of this clause do not include Support Obligations if
such Support Obligation or the primary obligation so supported is
not fixed or conclusively determined or is not otherwise
reasonably quantifiable as of the date of determination.
EXHIBIT G
FORM OF LENDER ASSIGNMENT
Dated , 19
Reference is made to the Term Loan Agreement, dated as of November
21, 1995 (said Agreement, as it may hereafter be amended or otherwise
modified from time to time, being the "Agreement", the terms defined
therein and not otherwise defined herein being used herein as therein
defined), among the Borrower, the Lenders, the Co-Agents, the
Documentation Agent and the Operational Agent. Pursuant to the Agreement,
(the "Assignor") has committed to make
advances ("Advances") to the Borrower, which Advances are evidenced by a
promissory note (the "Note") issued by the Borrower to the Assignor.
The Assignor and
(the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, that interest
in and to all of the Assignor's rights and obligations under the Agreement
as of the date hereof which represents the percentage interest specified
on Schedule 1 of all outstanding rights and obligations under the
Agreement (the "Assigned Interest"), including, without limitation, such
interest in the Assignor's Commitment, the Advances owing to the Assignor
and the Note held by the Assignor. After giving effect to such sale and
assignment, the Assignee's Commitment and the amount of the Advances owing
to the Assignee will be as set forth in Section 2 of Schedule 1. The
effective date of this sale and assignment shall be the date specified in
Section 3 of Schedule 1 hereto (the "Effective Date").
2. On , 19 , the Assignee will pay to the
Assignor, in same day funds, at such address and account as the Assignor
shall advise the Assignee, $ , and the sale and assignment
contemplated hereby shall thereupon become effective as of the Effective
Date. From and after the Effective Date, the Assignor agrees that the
Assignee shall be entitled to all rights, powers and privileges of the
Assignor under the Agreement and the Note to the extent of the Assigned
Interest, including without limitation (i) the right to receive all
payments in respect of the Assigned Interest for the period from and after
the Effective Date, whether on account of principal, interest, fees,
indemnities in respect of claims arising after the Effective Date,
increased costs, additional amounts or otherwise, (ii) the right to vote
and to instruct the Agents under the Agreement according to its Percentage
based on the Assigned Interest, (iii) the right to set-off and to
appropriate and apply deposits of the Borrower as set forth in the
Agreement and (iv) the right to receive notices, requests, demands and
other communications. The Assignor agrees that it will promptly remit to
the Assignee any amount received by it in respect of the Assigned Interest
(whether from the Borrower, any Agent or otherwise) in the same funds in
which such amount is received by the Assignor.
3. The Assignor (v) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim; (vi) makes
no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection
with the Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Agreement or any other instrument
or document furnished pursuant thereto; and (vii) makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower
of any of its obligations under the Agreement or any other instrument or
document furnished pursuant thereto. Except as specified in this Section
3, the assignment of the Assigned Interest contemplated hereby shall be
without recourse to the Assignor.
4. The Assignee (viii) confirms that it has received a copy
of the Agreement, together with copies of the financial statements
referred to in Section 6.01(e)(i) thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and purchase the Assigned
Interest, (ix) agrees that it will, independently and without reliance
upon the Assignor and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Agreement, (x) confirms that it
satisfies the requirements of an Eligible Assignee, (xi) appoints and
authorizes each Agent to take such action as agent on its behalf and to
exercise such powers under the Loan Documents as are delegated to each
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto and (xii) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Lender.
5. This Assignment may be executed in any number of
counterparts and by different parties in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute but one and the same instrument.
6. This Assignment shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
to be executed by their respective officers thereunto duly authorized, as
of the date first above written, such execution being made on Schedule 1
hereto.
Schedule 1
to
Assignment Agreement
Dated , 19
Section 1.
---------
Percentage Interest: %
Section 2.
Assignee's Commitment: $
------
Aggregate Outstanding
Principal Amount of
Advances owing to the Assignee: $
------
Section 3.
Effective Date: , 19
[NAME OF ASSIGNOR]
By:
Name:
Title:
[NAME OF ASSIGNEE]
By:
Name:
Title:
Consented to:1
CMS ENERGY CORPORATION
By:
Name:
Title:
----------------------
1 Consent of the Borrower is required for all assignments EXCEPT for any
assignment by a Lender to any of its Affiliates or to any other Lender
or any of its Affiliates.
SCHEDULE I
CMS ENERGY CORPORATION
Term Loan Agreement, dated as of November 21, 1995
among CMS Energy Corporation, the Banks named therein,
Citibank, N.A. and Union Bank, as Co-Agents
Name of Bank Domestic Lending Office Eurodollar Lending Office
--------------------------------------------------------------
Citibank, N.A. 000 Xxxx Xxxxxx, - same -
Xxxx 00, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:Xxxxxx Xxxx
Telephone:212/000-0000
Xxxxxxxxxx:000/000-0000
Xxxxx Bank 000 Xxxxx Xxxxxxxx Xxxxxx - same -
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention:Xxxx X. Xxxxxxxxx
Telephone:213/000-0000
Xxxxxxxxxx:000/000-0000
Xxxx xx Xxxxxxx 000 Xxxx Xxxxxxx Xxxxxxxxx - same -
Illinois Xxxxxxx, Xxxxxxxx 00000
Attention:Xxxxxx Xxxxxxxx
Telephone:312/000-0000
Telecopier:312/974-9626
BZW Division of 000 Xxxxxxxx, 00xx Xxxxx - same -
Barclays Bank Xxx Xxxx, Xxx Xxxx 00000
PLC Attention:Sydney X. Xxxxxx
Telephone:212/000-0000
Telecopier:212/412-6709
The First National 000 Xxxxxxx Xxxxxx - same -
Bank of Boston Mail Stop 01-08-02
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention:Xxxxx X. Xxxxx
Telephone:617/000-0000
Telecopier:617/434-3652
The First National One First National Bank Plaza - same -
Bank of Chicago Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention:Xx. Xxxxxxx X.
Xxxxxx
Telephone:312/000-0000
Telecopier:312/732-3055
The Xxxxx 0 Xxxxx Xxxxxxxxx Xxxxx, - same -
Manhattan 3rd Floor
Bank, N.A. Xxx Xxxx, Xxx Xxxx 00000
Attention:Xxxxxx X. Xxxxx
Telephone:212/000-0000
Xxxxxxxxxx:000/000-0000
Xxxxxxx Dominion Houston Agency - same -
(Texas), Inc. Xxxxx 0000
000 Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention:Xxxx Xxxxxxx
Telephone:713/000-0000
Telecopier:713/951-9921
Comerica Bank One Detroit Center - same -
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention:Xxxxxxx X. Xxxxxxx
Telephone:313/000-0000
Telecopier:313/222-9514
Bank of Montreal 000 Xxxxx XxXxxxx Xxxxxx, - same -
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention:Xxxxxxx X. Xxxxxx
Telephone:312/000-0000
Telecopier:312/750-4314
Michigan National 000 Xxxx Xxxxxxx Xxxxxx - same -
Bank Michigan National Tower
Commercial Loan Document 98-03
Xxxxxxx, Xxxxxxxx 00000
Attention:Xxxx X. Xxxx
Telephone:517/000-0000
Telecopier:517/377-3102
SCHEDULE II
TO THE TERM LOAN AGREEMENT
As of November 21, 1995
Project Finance Debt:
Xxxxxxx Pipeline Company Partnership Debt $ 5,378,948
-----------
Borrowers Ownership Interest 75%
Centrales Termica's Xxxxxxx Debt $23,048,968
Borrowers Ownership Interest 51%
Debt (according to GAAP) of Enterprises -0-
---
