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CREDIT AGREEMENT
dated as of June 12, 1996
among
ILLINOVA CORPORATION,
VARIOUS FINANCIAL INSTITUTIONS
and
CIBC INC.,
as Administrative Agent,
with
CIBC INC. and FIRST CHICAGO CAPITAL MARKETS, INC.,
as Co-Arrangers,
and
FIRST CHICAGO CAPITAL MARKETS, INC.,
as Syndication Agent
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CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of June 12, 1996 (as amended or
otherwise modified from time to time, this "Agreement"), is entered into among
ILLINOVA CORPORATION, an Illinois corporation (the "Company"), the undersigned
financial institutions (collectively the "Lenders" and individually each a
"Lender") and CIBC INC. (in its individual capacity, "CIBC"), as administrative
agent for the Lenders, with CIBC and FIRST CHICAGO CAPITAL MARKETS, INC., as
Co-Arrangers, and FIRST CHICAGO CAPITAL MARKETS, INC., as Syndication Agent.
In consideration of the premises and the mutual agreements herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1 DEFINITIONS AND INTERPRETATION.
1.1 Definitions. When used herein the following terms shall have the
following meanings (such definitions to be applicable to both the singular and
plural forms of such terms):
Administrative Agent means CIBC in its capacity as administrative agent
for the Lenders hereunder and any successor thereto in such capacity.
Affected Lender means any Lender that has given notice to the Company
(which has not been rescinded) of (i) any obligation by the Company to pay any
amount pursuant to Section 7.6 or 8.1 or (ii) the occurrence of any circumstance
of the nature described in Section 8.2 or 8.3.
Affected Loan - see Section 8.3.
Agents means, collectively, the Administrative Agent and the
Syndication Agent.
Agreement - see the Preamble.
Applicable Margin means, at any time, the percentage set forth in
Schedule II opposite the then-current Rating Level; it being understood that the
Applicable Margin shall adjust concurrently with any change in the applicable
Rating Level.
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Assignee - see Section 14.6.1.
Assignment Agreement - see Section 14.6.1.
Business Day means any day (other than a Saturday or Sunday) on which
banks are open for commercial banking business in New York and, in the case of a
Business Day which relates to a Eurodollar Loan, on which dealings are carried
on in the New York eurodollar interbank market.
Capital Lease means, with respect to any Person, any lease of (or other
agreement conveying the right to use) any real or personal property which, in
conformity with generally accepted accounting principles, is accounted for as a
capital lease on the balance sheet of such Person.
CIBC - see the Preamble.
Co-Arrangers means, collectively, CIBC and First Chicago
Capital Markets, Inc. as co-arrangers.
Code means the Internal Revenue Code of 1986, as amended, and
regulations promulgated thereunder.
Commitment as to any Lender means the commitment of such Lender to make
Loans hereunder, as adjusted from time to time pursuant to Section 6.1 or
Section 14.6. The amount of the initial Commitment of each Lender is set forth
on the Schedule I.
Company - see the Preamble.
Consolidated Net Worth means, at any date consolidated stockholders'
equity (excluding any equity attributed to any preferred stock) of the Company
and its Subsidiaries as at such date.
Debt of any Person means, without duplication, (a) all indebtedness of
such Person for borrowed money, whether or not evidenced by bonds, debentures,
notes or similar instruments, (b) all obligations of such Person as lessee under
Capital Leases which have been recorded as liabilities on a balance sheet of
such Person, (c) all obligations of such Person to pay the deferred purchase
price of property or services (other than
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current accounts payable in the ordinary course of business), (d) all
indebtedness secured by a Lien on the property of such Person, whether or not
such indebtedness shall have been assumed by such Person (it being understood
that if such Person has not assumed or otherwise become personally liable for
any such indebtedness, the amount of the Debt of such Person in connection
therewith shall be limited to the lesser of the face amount of such indebtedness
or the fair market value of all property of such Person securing such
indebtedness), (e) all obligations, contingent or otherwise, with respect to the
face amount of all letters of credit (whether or not drawn) and banker's
acceptances issued for the account of such Person, (f) all Suretyship
Liabilities of such Person and (g) all Debt (as defined above) of any
partnership in which such Person is a general partner.
Dollar and the sign "$" mean lawful money of the United States of
America.
Duff & Xxxxxx Rating means, at any time, the rating issued by Duff &
Xxxxxx Rating Co. and then in effect with respect to the First Mortgage Bonds.
Effective Date - see Section 11.1.
Environmental Laws means all federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any governmental authorities, in each case
relating to environmental, health, safety and land use matters.
ERISA means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
Eurocurrency Reserve Percentage means, for any day in any Interest
Period for any Eurodollar Loan of any Lender, the percentage in effect on such
day as prescribed by the Board of Governors of the Federal Reserve System (or
any successor thereto) or other U.S. government agency for determining the
reserve requirement (including, without limitation, any marginal,
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basic, supplemental or emergency reserves) for such Lender in respect of
liabilities or assets (with a term equal to such Interest Period) consisting of
or including "Eurocurrency liabilities" as currently defined in Regulation D or
any other applicable regulation or other liabilities or assets which such Lender
determines are actually maintained and attributable to or allocable to such
Eurodollar Loan. In determining such amount, each Lender may use any reasonable
averaging and attribution methods.
Eurodollar Loan means any Loan which bears interest at a rate
determined by reference to the Eurodollar Rate.
Eurodollar Office means with respect to any Lender the office or
offices of such Lender which shall be making or maintaining the Eurodollar Loans
of such Lender hereunder. A Eurodollar Office of any Lender may be, at the
option of such Lender, either a domestic or foreign office.
Eurodollar Rate means, with respect to any Eurodollar Loan for any
Interest Period, the rate per annum at which Dollar deposits in immediately
available funds are offered to the New York office of CIBC two Business Days
prior to the beginning of such Interest Period by major banks in the interbank
eurodollar market as at or about 10:00 a.m., New York time, for delivery on the
first day of such Interest Period, for the number of days comprised therein and
in an amount equal or comparable to amount of the Eurodollar Loan of CIBC for
such Interest Period.
Existing Agreement means the Credit Agreement dated as of June 16, 1995
among the Company, various financial institutions, and CIBC, as agent.
Event of Default means any of the events described in Section 12.1.
Federal Funds Rate means, for any day, the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor publication, the
"Composite 3:30 p.m. Quotations") for such day under the caption "Federal Funds
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Effective Rate". If such rate is not published in the Composite 3:30 p.m.
Quotations for any Business Day, the rate for such day will be the arithmetic
mean of the rates for the last transaction in overnight Federal funds arranged
prior to 9:00 a.m., New York City time, on such day by each of three leading
brokers of Federal funds transactions in New York City, selected by the
Administrative Agent. The rate for any day which is not a Business Day shall be
the rate for the immediately preceding Business Day.
First Mortgage Bonds means the bonds issued pursuant to or secured by
(i) the Mortgage and Deed of Trust from Illinois Power to Xxxxxx Trust and
Savings Bank, as Trustee, dated as of November 1, 1943, and (ii) the General
Mortgage Indenture and Deed of Trust from the Company to Xxxxxx Trust and
Savings Bank, as Trustee, dated as of November 1, 1992.
Floating Rate means at any time the greater of (a) the Federal Funds
Rate plus 1/2 of 1% and (b) the Prime Rate.
Floating Rate Loan means any Loan which bears interest at or by
reference to the Floating Rate.
Group - see Section 2.2.
Illinois Power means Illinois Power Company, an Illinois
corporation.
Interest Period - see Section 4.3.
Lender - see the Preamble.
Lien means, when used with respect to any Person, any interest of any
other Person in any real or personal property, asset or other right owned or
being purchased or acquired by such Person which secures payment or performance
of any obligation and shall include any mortgage, lien, encumbrance, charge or
other security interest of any kind, whether arising by contract, as a matter
of law, by judicial process or otherwise.
Loan - see Section 2.1.
Loan Documents means this Agreement and the Notes.
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Margin Stock means any "margin stock" as defined in
Regulation G, T, U or X of the Board of Governors of the Federal Reserve System.
Xxxxx'x Rating means, at any time, the rating issued by Xxxxx'x
Investors Service, Inc. and then in effect with respect to the First Mortgage
Bonds.
Non-Use Fee Rate means the percentage set forth in Schedule II opposite
the then-current Rating Level; it being understood that the Non-Use Fee Rate
shall adjust concurrently with any change in the applicable Rating Level.
Note - see Section 3.1.
Participant - see Section 14.6.2.
Percentage means as to any Lender the percentage which such Lender's
Commitment is of the aggregate Commitments (or, if the Commitments have
terminated, which the principal amount of such Lender's outstanding Loans is of
the principal amount of all outstanding Loans). The Percentages of the Lenders
as of the Effective Date are set forth on the Schedule I.
Person means any natural person, corporation, partnership, trust,
association, governmental authority or unit, or any other entity, whether acting
in an individual, fiduciary or other capacity.
Prime Rate means at any time the rate per annum then most recently
announced by CIBC as its prime rate at New York, New York.
Rating Level means at any time the Level set forth in the table below
opposite the then-current Xxxxx'x Rating, S&P Rating or Duff & Xxxxxx Rating,
whichever results in the numerically lower of the two highest (one being
highest) Levels; provided that if at any time there is no Xxxxx'x Rating or no
S&P Rating or no Duff & Xxxxxx Rating, the Rating Level shall be Xxxxx 0.
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Xxxx & Xxxxxx
Level Xxxxx'x Rating S&P Rating Rating
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1 Baa1 or better BBB+ or better BBB+ or
better
2 Baa2 or better but BBB or better but BBB or better
less than Baa1 less than BBB+ but less than
BBB+
3 Baa3 or better but BBB- or better BBB- or
less than Baa2 but less than BBB better but
less than BBB
4 less than Baa3 less than BBB less than
BBB--
Reportable Event means a "reportable event" as defined in Section 4043
of ERISA.
Required Lenders means Lenders having an aggregate Percentage of
66-2/3% or more.
SEC means the Securities and Exchange Commission.
Significant Subsidiary means any Subsidiary of the Company which is a
"significant subsidiary" as defined in Regulation S-X of the SEC.
S&P Rating means, at any time, the rating issued by Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. and then in
effect with respect to the First
Mortgage Bonds.
Stock Repurchase Capacity means the maximum amount of common stock of
Illinois Power which Illinois Power is permitted to repurchase pursuant to the
order of the Illinois Commerce Commission dated March 22, 1995, Docket No.
94-0518.
Subsidiary means, with respect to any Person, any corporation of which
such Person and/or its other Subsidiaries own, directly or indirectly, such
number of outstanding shares as have not less than 50% of the ordinary voting
power for the election of directors. Unless the context otherwise requires, each
reference to Subsidiaries herein shall be a reference to Subsidiaries of the
Company.
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Suretyship Liability means any agreement, undertaking or other
contractual arrangement by which any Person guarantees, endorses or otherwise
becomes or is contingently liable upon (by direct or indirect agreement,
contingent or otherwise, to provide funds for payment, to supply funds to or
otherwise to invest in a debtor, or otherwise to assure a creditor against loss)
any indebtedness, obligation or other liability (including accounts payable) of
any other Person (other than by endorsements of instruments in the course of
collection), or guarantees the payment of dividends or other distributions upon
the shares of any other Person. The amount of any Person's obligation under any
Suretyship Liability shall (subject to any limitation set forth therein) be
deemed to be the principal amount of the indebtedness, obligation or other
liability guaranteed thereby; provided that the amount of any Person's
obligation under any Suretyship Liability relating to an interest rate swap,
currency swap, commodity swap or similar hedging arrangement shall be deemed to
be equal to the net liabilities of the primary obligor under all such
arrangements with the same counterparty calculated on a xxxx-to-market basis as
of the date of determination; and provided, further, that if the amount of any
Person's obligation under any Suretyship Liability is not determinable, the
amount thereof for purposes of this Agreement shall be the maximum reasonably
anticipated liability of such Person in respect thereof as reasonably estimated
by such Person as of the date of determination.
Syndication Agent means First Chicago Capital Markets, Inc., in its
capacity as syndication agent.
Termination Date means June 11, 1997 or such other date on which the
Commitments shall terminate pursuant to Section 6.1 or 12.2.
Type of Loan or Borrowing - see Section 2.2. The types of Loans or
borrowings under this Agreement are as follows: Floating Rate Loans or
borrowings and Eurodollar Loans or borrowings.
Unmatured Event of Default means any event which if it continues
uncured will, with lapse of time or notice or lapse of time and notice,
constitute an Event of Default.
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1.2 Computations. Where the character or amount of any asset or liability
or any item of income or expense is required to be determined, or any
consolidation or other accounting computation is required to be made, for
purposes of this Agreement, such determination or calculation shall, to the
extent applicable and except as otherwise specified in this Agreement, be made
in accordance with generally accepted accounting principles in effect from time
to time.
1.3 Cross-References; Section Captions. A Section, an Exhibit or a Schedule
is, unless otherwise stated, a reference to a section hereof or an exhibit or
schedule hereto, as the case may be. Section captions are for convenience only
and shall not affect the interpretation of this Agreement.
SECTION 2 COMMITMENTS OF THE LENDERS; TYPES OF LOANS;
BORROWING AND CONVERSION PROCEDURES.
2.1 Commitments. Subject to the terms and conditions of this Agreement,
each of the Lenders, severally and for itself alone, agrees to make loans to the
Company on a revolving basis (collectively the "Loans" and individually each a
"Loan") from time to time before the Termination Date in such Lender's
Percentage of such aggregate amounts as the Company may from time to time
request from all Lenders; provided, however, that (i) the aggregate principal
amount of all Loans which any Lender shall be committed to have outstanding
hereunder on loan to the Company shall not at any one time exceed the amount set
forth opposite such Lender's name on Schedule I hereto (as adjusted from time to
time pursuant to Section 6.1 and 14.6) and (ii) the aggregate principal amount
of all Loans which all Lenders shall be committed to have outstanding hereunder
on loan to the Company shall not at any one time exceed $100,000,000 (less any
reductions made pursuant to Section 6.1).
2.2 Various Types of Loans. Each Loan shall be either a Floating Rate Loan
or a Eurodollar Loan (each a "type" of Loan), as the Company shall specify in
the related notice of borrowing or conversion pursuant to Section 2.3 or 2.4.
Eurodollar Loans having the same Interest Period are sometimes called a "Group"
or collectively "Groups". Floating Rate Loans and Eurodollar Loans may be
outstanding at the same time, provided that (i) not more than five different
Groups of Loans shall be outstanding at any
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one time and (ii) the aggregate principal amount of each Group of Loans shall at
all times (including after giving effect to any conversion or continuation of
any Loans) be an integral multiple of $1,000,000.
2.3 Borrowing Procedures. The Company shall give notice to the
Administrative Agent (which may be by telephone if promptly confirmed in
writing) of each proposed borrowing not later than (a) in the case of a Floating
Rate borrowing, 10:00 a.m., Chicago time, on the proposed date of such
borrowing, and (b) in the case of a Eurodollar borrowing, 10:00 a.m., Chicago
time, at least three Business Days prior to the proposed date of such borrowing.
Each such notice shall be effective upon receipt by the Administrative Agent and
shall specify the date, amount and type of borrowing and, in the case of a
Eurodollar borrowing, the initial Interest Period therefor. Promptly upon
receipt of such notice, the Administrative Agent shall advise each Lender
thereof. Not later than noon, New York time, on the date of a proposed
borrowing, each Lender shall provide the Administrative Agent at the principal
office of the Administrative Agent in New York with immediately available funds
covering such Lender's Percentage of such borrowing and, subject to the
satisfaction of the conditions precedent set forth in Section 11 with respect to
such borrowing, the Administrative Agent shall pay over such funds to the
Company on the requested borrowing date. Each borrowing shall be on a Business
Day.
2.4 Conversion Procedures. Subject to the last sentence of Section 2.2, the
Company may convert all or any part of any outstanding Loan into a Loan of a
different type by giving notice (which may be by telephone if promptly confirmed
in writing) to the Administrative Agent not later than (a) in the case of
conversion into a Floating Rate Loan, 10:00 a.m., Chicago time, on the proposed
date of such conversion, and (b) in the case of a conversion into a Eurodollar
Loan, 10:00 a.m., Chicago time, at least three Business Days prior to the
proposed date of such conversion. Each such notice shall be effective upon
receipt by the Administrative Agent and shall specify the date and amount of
such conversion, the Loan to be so converted, the type of Loan to be converted
into and, in the case of a conversion into a Eurodollar Loan, the initial
Interest Period therefor. Promptly upon receipt of such notice, the
Administrative Agent shall advise each Lender thereof. Subject to Section 2.6,
such Loan
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shall be so converted on the requested date of conversion. Each conversion shall
be on a Business Day.
2.5 Warranty upon Conversion. Each notice of conversion pursuant to Section
2.4 shall automatically constitute a warranty by the Company to the
Administrative Agent and each Lender to the effect that, on the date of such
requested conversion, no Event of Default or Unmatured Event of Default shall
have then occurred and be continuing.
2.6 Conditions. Notwithstanding any other provision of this Agreement, no
Lender shall be obligated to make any Loan, or to convert into or permit the
continuation at the end of the applicable Interest Period of any Eurodollar
Loan, if an Event of Default or Unmatured Event of Default exists or would
result therefrom.
2.7 Pro Rata Treatment. All borrowings, conversions and repayments shall be
effected so that after giving effect thereto each Lender will have a pro rata
share (according to its Percentage) of all types and Groups of Loans.
2.8 Commitments Several. The failure of any Lender to make a requested Loan
on any date shall not relieve any other Lender of its obligation (if any) to
make a Loan on such date, but no Lender shall be responsible for the failure of
any other Lender to make any Loan to be made by such other Lender.
SECTION 3 NOTES EVIDENCING LOANS.
3.1 Notes. The Loans of each Lender shall be evidenced by a promissory note
(as amended, supplemented, replaced or otherwise modified from time to time,
individually each a "Note" and collectively for all Lenders the "Notes")
substantially in the form set forth in Exhibit A, with appropriate insertions,
dated the Effective Date (or such other date as shall be satisfactory to the
Administrative Agent), payable to the order of such Lender in the principal
amount of the Commitment of such Lender (or, if less, in the aggregate unpaid
principal amount of such Lender's Loans) on the Termination Date.
3.2 Recordkeeping. Each Lender shall record in its records, or at its
option on the schedule attached to its Note,
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the date and amount of each Loan made by such Lender, each repayment or
conversion thereof and, in the case of each Eurodollar Loan, the dates on which
each Interest Period for such Loan shall begin and end. The aggregate unpaid
principal amount so recorded shall be rebuttable presumptive evidence of the
principal amount owing and unpaid on such Note. The failure to so record any
such amount or any error in so recording any such amount shall not, however,
limit or otherwise affect the obligations of the Company hereunder or under any
Note to repay the principal amount of the Loans evidenced by such Note together
with all interest accruing thereon.
SECTION 4 INTEREST.
4.1 Interest Rates. (a) The Company promises to pay interest on the unpaid
principal amount of each Loan for the period commencing on and including the
date of such Loan to but excluding the date such Loan is paid in full, as
follows:
(i) at all times while such Loan is a Floating Rate Loan, at a
rate per annum equal to the Floating Rate from time to time in effect;
and
(ii) at all times while such Loan is a Eurodollar Loan, at a
rate per annum equal to the Eurodollar Rate applicable to each Interest
Period for such Loan plus the Applicable Margin;
provided, however, that after maturity of any Loan (whether by acceleration or
otherwise), such Loan shall bear interest on the unpaid principal amount thereof
at a rate per annum equal to the Prime Rate from time to time in effect (but not
less than the interest rate in effect for such Loan immediately prior to
maturity) plus 2%.
(b) The Company also promises to pay, to each Lender that incurs
reserve requirements as a consequence of funding any Eurodollar Loan, additional
interest on such Eurodollar Loan at a rate per annum equal to the excess of (i)
the rate obtained by dividing the Eurodollar Rate applicable to each Interest
Period for such Loan by a percentage (expressed as a decimal) equal to 100%
minus the Eurocurrency Reserve Percentage for such Lender for such Interest
Period over (ii) the Eurodollar Rate for such
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Interest Period; it being understood that each Lender shall invoice the Company
(and provide a copy of such invoice to the Administrative Agent), from time to
time for the interest due to such Lender pursuant to this Section 4.1(b), which
invoice shall be (x) payable within 10 days after receipt thereof by the Company
and (y) accompanied by a statement setting forth in reasonable detail the
computation of such additional interest and shall be conclusive and binding upon
the parties hereto, in the absence of demonstrable error.
4.2 Interest Payment Dates. Accrued interest on each Floating Rate Loan
shall be payable on the last day of each calendar quarter and at maturity.
Accrued interest on each Eurodollar Loan shall be payable on the last day of
each Interest Period relating to such Loan (and, in the case of any Eurodollar
Loan with an Interest Period exceeding three months, on each three-month
anniversary of the first day of such Interest Period) and at maturity. After
maturity, accrued interest on all Loans shall be payable on demand.
4.3 Interest Periods. Each "Interest Period" for a Eurodollar Loan shall
commence on the date such Eurodollar Loan is made or converted from a Floating
Rate Loan, or on the expiration of the immediately preceding Interest Period for
such Eurodollar Loan, and shall end on the date which is one, two, three or six
months thereafter, as the Company may specify:
(a) in the case of an Interest Period which commences on the
date a Eurodollar Loan is made or converted from a Floating Rate Loan,
in the related notice of borrowing or conversion pursuant to Section
2.3 or 2.4, or
(b) in the case of a succeeding Interest Period with respect
to any Eurodollar Loan, by notice to the Administrative Agent (which
may be by telephone if promptly confirmed in writing) not later than
10:00 a.m., Chicago time, at least three Business Days prior to the
first day of such succeeding Interest Period, it being understood that
(i) each such notice shall be effective upon receipt by the
Administrative Agent (which shall promptly advise each Lender thereof)
and (ii) if the Company fails to give such notice, such Loan shall
automatically become a Floating Rate Loan at the end of its
then-current Interest Period.
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Each Interest Period for a Eurodollar Loan that begins on the last day of a
calendar month (or on a day for which there is no numerically corresponding day
in the appropriate subsequent month) shall end on the last Business Day of the
appropriate subsequent calendar month. Each Interest Period for a Eurodollar
Loan which would otherwise end on a day which is not a Business Day shall end on
the immediately succeeding Business Day (unless such immediately succeeding
Business Day is in another calendar month, in which case such Interest Period
shall end on the immediately preceding Business Day). The Company may not select
any Interest Period which would end after the scheduled Termination Date.
4.4 Setting and Notice of Eurodollar Rates. The applicable Eurodollar Rate
for each Interest Period shall be determined by the Administrative Agent, and
notice thereof shall be given by the Administrative Agent promptly to the
Company and each Lender. Each determination of the applicable Eurodollar Rate by
the Administrative Agent shall be conclusive and binding upon the parties
hereto, in the absence of demonstrable error. The Administrative Agent shall,
upon written request of the Company or any Lender, deliver to the Company or
such Lender a statement showing the computations used by the Administrative
Agent in determining any applicable Eurodollar Rate hereunder.
4.5 Computation of Interest. Interest shall be computed for the actual
number of days elapsed on the basis of a year of 360 days. The applicable
interest rate for each Floating Rate Loan shall change simultaneously with each
change in the Floating Rate.
SECTION 5 FEES.
5.1 Non-Use Fee. The Company agrees to pay to the Administrative Agent
for the account of each Lender a non-use fee for the period from and including
June 12, 1996 to but excluding the Termination Date in an amount equal to the
Non-Use Fee Rate multiplied by the daily average of the unused amount of such
Lender's Commitment. Such non-use fee shall be payable in arrears on the last
day of each calendar quarter and on the Termination Date for any period then
ending for which such nonuse fee shall not have been theretofore paid. The
non-use fee shall be computed for the actual number of days elapsed on the
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basis of a year of 360 days.
Administrative Agent's Fees. The Company agrees to pay to the
Administrative Agent for its own account such fees as are agreed to from time to
time by the Company and the Administrative Agent.
SECTION 6 REDUCTION OR TERMINATION OF THE COMMITMENTS;
PREPAYMENTS.
6.1 Reduction or Termination of the Commitments. The Company may from time
to time on at least five Business Days' prior written notice received by the
Administrative Agent (which shall promptly advise each Lender thereof)
permanently reduce the amount of the Commitments to an amount not less than the
aggregate unpaid principal amount of the Loans. Any such reduction shall be in
an amount that is an integral multiple of $1,000,000 and shall be pro rata among
the Lenders according to their respective Percentages. The Company may at any
time on like notice terminate the Commitments upon payment in full of all Loans
and all other obligations of the Company hereunder.
6.2 Prepayments. The Company may from time to time prepay the Loans in
whole or in part, provided that (a) the Company shall give the Administrative
Agent (which shall promptly advise each Lender) written notice thereof not later
than noon, New York time, on the date of such prepayment, in the case of
Floating Rate Loans, and not less than three Business Days' prior to the date of
such prepayment, in the case of Eurodollar Loans, in each case specifying the
Loans to be prepaid and the date (which shall be a Business Day) and amount of
prepayment, (b) each partial prepayment of Loans shall be in an integral
multiple of $1,000,000 and (c) any prepayment of Eurodollar Loans on a day other
than the last day of an Interest Period therefor shall be subject to Section
8.4. After giving effect to any prepayment of Eurodollar Loans, each Group of
Eurodollar Loans shall be an integral multiple of $1,000,000.
SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES.
7.1 Making of Payments. All payments of principal of or interest on the
Notes, and of all fees, shall be made by the Company to the Administrative Agent
in immediately available
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funds at its office in New York not later than 1:00 p.m., New York time, on the
date due; and funds received after that hour shall be deemed to have been
received by the Administrative Agent on the immediately following Business Day.
The Administrative Agent shall promptly remit to each Lender its share of all
such payments received in collected funds by the Administrative Agent for the
account of such Lender.
All payments under Sections 8.1 and 8.4 shall be made by the Company
directly to the Lender entitled thereto.
7.2 Application of Certain Payments. Each payment of principal shall be
applied to such Loans as the Company shall direct by notice to be received by
the Administrative Agent on or before the date of such payment or, in the
absence of such notice, as the Administrative Agent shall determine in its
discretion. Concurrently with each remittance to any Lender of its share of any
such payment, the Administrative Agent shall advise such Lender as to the
application of such payment.
7.3 Due Date Extension. If any payment of principal or interest with
respect to any of the Notes, or of any fee, falls due on a day which is not a
Business Day, then such due date shall be extended to the immediately following
Business Day and, in the case of principal, additional interest shall accrue and
be payable for the period of any such extension.
7.4 Setoff. To the extent not prohibited by applicable law (and without
waiving any other rights of the Administrative Agent or any Lender), the
Administrative Agent and each Lender shall, upon the occurrence of any Event of
Default described in Section 12.1.4 or any Unmatured Event of Default that may
result in such an Event of Default, have the right to appropriate and apply to
the payment of any amount payable by the Company hereunder any and all balances,
credits, deposits, accounts or moneys of the Company then or thereafter with
such Person, other than as trustee or custodian for the benefit of Persons other
than the Company.
7.5 Proration of Payments. If any Lender shall obtain by payment or other
recovery (whether voluntary, involuntary, by application of offset or otherwise)
on account of principal of or interest on any Note in excess of its pro rata
share of payments
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and other recoveries obtained by all Lenders on account of principal of and
interest on all Notes (other than any non-pro rata interest payment resulting
from a Loan being an Affected Loan or as a result of replacement of a Lender
pursuant to Section 8.7), such Lender shall purchase from the other Lenders such
participations in the Notes held by them as shall be necessary to cause such
purchasing Lender to share the excess payment or other recovery ratably with
each of them; provided, however, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing Lender,
the purchase shall be rescinded and the purchase price restored to the extent of
such recovery.
7.6 Payments Net of Taxes. All payments under this Agreement shall
be made without setoff or counterclaim and in such amounts as may be necessary
in order that all such payments (after deduction or withholding for or on
account of any present or future taxes, levies, imposts, duties, or other
charges of whatsoever nature imposed by any government or any political
subdivision or taxing authority thereof (collectively, "Taxes"), other than any
Taxes on or measured by the net income, net worth, or shareholder's capital of a
Lender pursuant to the income tax laws of the jurisdiction where such Lender's
principal office or Eurodollar Office is located) shall not be less than the
amounts otherwise specified to be paid under this Agreement and the Notes. A
certificate as to any additional amounts payable to any Lender under this
Section 7.6 submitted to the Company by such Lender shall show in reasonable
detail the amount payable and the calculations used to determine such amount,
and shall be conclusive and binding upon the parties hereto in the absence of
demonstrable error. With respect to each deduction or withholding for or on
account of any Taxes, the Company shall promptly (and in no event later than 45
days thereafter) furnish to each Lender such certificates, receipts and other
documents as may be required (in the reasonable judgment of such Lender) to
establish any tax credit to which such Lender may be entitled. All payments
under this Agreement shall be made under all circumstances, irrespective of
any bilateral or multilateral payment or clearing agreement that may be in
force, and of any restrictions then existing in any jurisdiction, and without
regard to the nationality, residence or domicile of any Lender, and without
requiring any affidavit or the fulfillment of any other formality. All
obligations provided for in this
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Section 7.6 shall survive repayment of the Loans, cancellation of the Notes or
any termination of this Agreement.
SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR
EURODOLLAR LOANS.
8.1 Increased Costs. (a) If, after the date hereof, the adoption of any
applicable law, rule or regulation, or any change in any applicable law, rule or
regulation (including, without limitation, Regulation D of the Board of
Governors of the Federal Reserve System), or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or any Eurodollar Office of such Lender) with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency
(A) shall subject any Lender (or any Eurodollar Office of such
Lender) to any tax, duty or other charge with respect to its Eurodollar
Loans, its Note or its obligation to make Eurodollar Loans, or shall
change the basis of taxation of payments to any Lender of the principal
of or interest on its Eurodollar Loans or any other amounts due under
this Agreement in respect of its Eurodollar Loans or its obligation to
make Eurodollar Loans (except for taxes imposed on or measured by the
overall net income of such Lender or its Eurodollar Office imposed by
the jurisdiction, or any political subdivision thereof or taxing
authority therein, in which such Lender's principal executive office or
Eurodollar Office is located or in which such Lender is incorporated);
or
(B) shall impose, modify or deem applicable any reserve
(including, without limitation, any reserve imposed by the Board of
Governors of the Federal Reserve System, but excluding any reserve
included in the determination of interest rates pursuant to Section 4),
special deposit or similar requirement against assets of, deposits with
or for the account of, or credit extended by any Lender (or any
Eurodollar Office of such Lender); or
(C) shall impose on any Lender (or its Eurodollar
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Office) any other condition affecting its Eurodollar Loans,
its Note or its obligation to make Eurodollar Loans;
and the result of any of the foregoing is to increase the cost to (or in the
case of Regulation D referred to above, to impose a cost on) such Lender (or any
Eurodollar Office of such Lender) of making or maintaining any Eurodollar Loan,
or to reduce the amount of any sum received or receivable by such Lender (or its
Eurodollar Office) under this Agreement or under its Note with respect thereto,
then within 10 days after demand by such Lender (which demand shall be
accompanied by a statement setting forth the basis of such demand, a copy of
which shall be furnished to the Administrative Agent), the Company shall pay
directly to such Lender such additional amount or amounts as will compensate
such Lender for such increased cost or such reduction.
(b) If any Lender shall reasonably determine that the adoption or
phase-in of any applicable law, rule or regulation regarding capital adequacy,
or any change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its Eurodollar Office) or any Person
controlling such Lender with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Lender's or such controlling Person's capital as a consequence of such
Lender's obligations hereunder (including, without limitation, such Lender's
Commitment) to a level below that which such Lender or such controlling Person
could have achieved but for such adoption, change or compliance (taking into
consideration such Lender's or such controlling Person's policies with respect
to capital adequacy) by an amount deemed by such Lender or such controlling
Person to be material, then from time to time, within 10 days after demand by
such Lender (which demand shall be accompanied by a statement setting forth the
basis of such demand, a copy of which shall be furnished to the Administrative
Agent), the Company shall pay to such Lender such additional amount or amounts
as will compensate such Lender or such controlling Person for such reduction.
8.2 Basis for Determining Interest Rate Inadequate or
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Unfair. If with respect to any Interest Period:
(a) deposits in Dollars (in the applicable amounts) are not being
offered to one or more Lenders in the London interbank eurodollar market for
such Interest Period, or the Administrative Agent otherwise reasonably
determines (which determination shall be binding and conclusive on the Company)
that by reason of circumstances affecting the London interbank eurodollar market
adequate and reasonable means do not exist for ascertaining the applicable
Eurodollar Rate; or
(b) Lenders having an aggregate Percentage of 30% or more advise the
Administrative Agent that the Eurodollar Rate as determined by the
Administrative Agent will not adequately and fairly reflect the cost to such
Lenders of maintaining or funding such Loans for such Interest Period, or that
the making or funding of Eurodollar Loans has become impracticable as a result
of an event occurring after the date of this Agreement which in the reasonable
opinion of such Lenders materially affects such Loans,
then the Administrative Agent shall promptly notify the other parties thereof
and, so long as such circumstances shall continue, (i) no Lender shall be under
any obligation to make or convert into Eurodollar Loans and (ii) on the last day
of the current Interest Period for each Eurodollar Loan, such Loan shall, unless
then repaid in full, automatically convert to a Floating Rate Loan.
8.3 Changes in Law Rendering Eurodollar Loans Unlawful. In the
event that any change in (including the adoption of any new) applicable laws or
regulations, or any change in the interpretation of applicable laws or
regulations by any governmental or other regulatory body charged with the
administration thereof, should make it (or in the good faith judgment of any
Lender cause a substantial question as to whether it is) unlawful for any
Lender to make, maintain or fund Eurodollar Loans, then such Lender shall
promptly notify each of the other parties hereto and, so long as such
circumstances shall continue, (a) such Lender shall have no obligation to make
or convert into Eurodollar Loans (but shall make Floating Rate Loans
concurrently with the making of or conversion into Eurodollar Loans by the
Lenders which are not so affected, in each case in
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an amount equal to such Lender's Percentage of all Eurodollar Loans which would
be made or converted into at such time in the absence of such circumstances) and
(b) on the last day of the current Interest Period for each Eurodollar Loan of
such Lender (or, in any event, if such Lender so requests, on such earlier date
as may be required by the relevant law, regulation or interpretation), such
Eurodollar Loan shall, unless then repaid in full, automatically convert to a
Floating Rate Loan. Each Floating Rate Loan made by a Lender which, but for the
circumstances described in the foregoing sentence, would be a Eurodollar Loan
(an "Affected Loan") shall, notwithstanding any other provision of this
Agreement, remain outstanding for the same period as the Group of Eurodollar
Loans of which such Affected Loan would be a part absent such circumstances.
8.4 Funding Losses. The Company hereby agrees that upon demand by any
Lender (which demand shall be accompanied by a statement setting forth the basis
for the calculations of the amount being claimed, a copy of which shall be
furnished to the Administrative Agent) the Company will indemnify such Lender
against any net loss or expense which such Lender may sustain or incur
(including, without limitation, any net loss or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund or maintain any Eurodollar Loan), as reasonably determined by
such Lender, as a result of (a) any payment or prepayment or conversion of any
Eurodollar Loan of such Lender on a date other than the last day of an Interest
Period for such Loan (including, without limitation, any conversion pursuant to
Section 8.3) or (b) any failure of the Company to borrow or convert any Loans on
a date specified therefor in a notice of borrowing or conversion pursuant to
this Agreement (other than as a result of a default by such Lender or the
Administrative Agent). For this purpose, all notices to the Administrative Agent
pursuant to this Agreement shall be deemed to be irrevocable.
8.5 Right of Lenders to Fund through Other Offices. Each Lender may, if
it so elects, fulfill its commitment as to any Eurodollar Loan by causing a
foreign branch or affiliate of such Lender to make such Loan, provided that in
such event for the purposes of this Agreement such Loan shall be deemed to have
been made by such Lender and the obligation of the Company to repay such Loan
shall nevertheless be to such Lender and shall be
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deemed held by it, to the extent of such Loan, for the account of such branch or
affiliate.
8.6 Discretion of Lenders as to Manner of Funding. Notwithstanding any
provision of this Agreement to the contrary, each Lender shall be entitled to
fund and maintain its funding of all or any part of its Loans in any manner it
sees fit, it being understood, however, that for the purposes of this Agreement
all determinations hereunder shall be made as if such Lender had actually funded
and maintained each Eurodollar Loan during each Interest Period for such Loan
through the purchase of deposits having a maturity corresponding to such
Interest Period and bearing an interest rate equal to the Eurodollar Rate for
such Interest Period.
8.7 Mitigation of Circumstances; Replacement of Affected Lender. (a) Each
Lender shall promptly notify the Company and the Administrative Agent of any
event of which it has knowledge which will result in, and will use reasonable
commercial efforts available to it (and not, in such Lender's sole judgment,
otherwise disadvantageous to such Lender) to mitigate or avoid, (i) any
obligation by the Company to pay any amount pursuant to Section 7.6 or 8.1 (ii)
the occurrence of any circumstance of the nature described in Section 8.2 or 8.3
(and, if any Lender has given notice of any such event described in clause (i)
or (ii) above and thereafter such event ceases to exist, such Lender shall
promptly so notify the Company and the Administrative Agent). Without limiting
the foregoing, each Lender will designate a different funding office if such
designation will avoid (or reduce the cost to the Company of) any event
described in clause (i) or (ii) of the preceding sentence and such designation
will not, in such Lender's sole judgment, be otherwise disadvantageous to such
Lender.
(b) At any time any Lender is an Affected Lender, the Company may
replace such Affected Lender as a party to this Agreement with one or more other
bank(s) or financial institution(s) reasonably satisfactory to the
Administrative Agent, such bank(s) or financial institution(s) to have a
Commitment or Commitments, as the case may be, in such amounts as shall be
reasonably satisfactory to the Administrative Agent (and upon notice from the
Company such Affected Lender shall assign, without recourse or warranty, its
Commitment, its Loans, its Note
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and all of its other rights and obligations hereunder to such replacement
bank(s) or other financial institution(s) for a purchase price equal to the sum
of the principal amount of the Loans so assigned, all accrued and unpaid
interest thereon, its ratable share of all accrued and unpaid non-use fees, any
amounts payable under Section 8.4 as a result of such Lender receiving payment
of any Eurodollar Loan prior to the end of an Interest Period therefor and all
other obligations owed to such Affected Lender hereunder).
8.8 Conclusiveness of Statements; Survival of Provisions. Determinations
and statements of any Lender pursuant to Section 8.1, 8.2, 8.3 or 8.4 shall be
conclusive absent demonstrable error. Lenders may use reasonable averaging and
attribution methods in determining compensation under Sections 8.1 and 8.4, and
the provisions of such Sections shall survive repayment of the Loans,
cancellation of the Notes and any termination of this Agreement.
SECTION 9 WARRANTIES.
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to induce the Lenders to make Loans hereunder, the Company
warrants to the Administrative Agent and the Lenders that:
9.1 Organization, etc. The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Illinois.
9.2 Authorization; No Conflict. The execution and delivery of this
Agreement, the Notes and each other Loan Document to which it is a party, the
borrowings hereunder, and the performance by the Company of its obligations
under this Agreement, the Notes and each other Loan Document to which it is a
party are within the Company's corporate xxxxxx, xxxx have been
duly authorized by all necessary corporate action prior to any borrowings
hereunder, have received all necessary governmental and regulatory approval, and
do not and will not contravene or conflict with, or result in the creation or
imposition of a Lien under, any provision of law or of the Articles of
Incorporation or by-laws of the Company or any Subsidiary or of any agreement,
instrument, order or decree that is binding upon the Company or
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any Subsidiary.
9.3 Validity and Binding Nature. Each of this Agreement and each other Loan
Document to which the Company is a party is, or upon the execution and delivery
thereof will be, legal, valid, and binding obligations of the Company
enforceable against the Company in accordance with their respective terms,
except to the extent enforceability thereof is limited by bankruptcy, insolvency
or other laws relating to, or affecting the enforcement of, creditors' rights in
general, and by general principles of equity.
9.4 Financial Statements. The Company's audited financial statements as at
December 31, 1995 and unaudited financial statements as at March 31, 1996,
copies of which have been furnished to each Lender, have been prepared in
conformity with generally accepted accounting principles applied on a basis
consistent with those of the preceding year, and present fairly the financial
position of the Company at such dates and the results of its operations for the
periods then ended.
9.5 Conduct of Business. Since December 31, 1995, no event has occurred or
condition has arisen that has resulted in, or created a reasonable likelihood
of, a material adverse change in the business, properties, condition (financial
or otherwise), prospects or results of operations of the Company and its
Subsidiaries taken as a whole.
9.6 Litigation and Contingent Liabilities. No litigation (including,
without limitation, derivative actions), arbitration proceedings or governmental
or regulatory proceedings are pending or threatened against the Company that
would, if adversely determined, materially and adversely affect the financial
condition, prospects, business, or operations of the Company and its
Subsidiaries taken as a whole, except as set forth in reports made by the
Company and filed with the SEC prior to the date of this Agreement, copies of
which have been furnished to each Lender. Other than any liability incident to
such litigation or proceedings, the Company does not have any material
contingent liabilities not provided for or disclosed in the financial statements
referred to in Section 9.4.
9.7 Liens. None of the assets of the Company is subject to
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any Lien, except as permitted pursuant to Section 10.14.
9.8 Subsidiaries. Exhibit B correctly lists each Significant Subsidiary of
the Company owned as of the date hereof, and the state of incorporation of each
such Subsidiary. Each Subsidiary is duly incorporated, validly existing and in
good standing under the laws of the jurisdiction of its incorporation. All
Subsidiaries, except Illinois Power Fuel Company, are currently wholly-owned by
the Company or by Illinois Power, and all of the shares of stock of each
Subsidiary (including the shares of stock of Illinois Power Fuel Company that
are owned by Illinois Power) have been duly issued, are fully paid and
non-assessable, and are owned by the Company or by Illinois Power as of the date
hereof free and clear of any Lien.
9.9 Employee Benefit Plans. Each employee benefit plan as to which the
Company may have any liability complies in all material respects with all
applicable requirements of law and regulations, and (i) to the best of the
Company's knowledge, no Reportable Event has occurred with respect to any such
plan, (ii) neither the Company nor any Subsidiary has withdrawn from any such
plan and (iii) no such plan has been terminated. Neither the execution and
delivery of this Agreement or any other Loan Document to which the Company is a
party nor the making of Loans hereunder will give rise to a prohibited
transaction within the meaning of Section 406 of ERISA or Section 4975 of the
Code.
9.10 Investment Company Act. The Company is not an "investment company" or,
to the best of the Company's knowledge, a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
9.11 Public Utility Holding Company Act. The Company and its Subsidiaries
are exempt from the provisions of the Public Utility Holding Company Act of
1935, as amended, except Section 9(a)(2) thereof, and, to the best of the
Company's knowledge, no proceedings to revoke or modify such exemption have been
instituted or are pending.
9.12 Regulation U. The Company is not engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
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9.13 Debt. Exhibit C correctly sets forth all Debt of the Company as of the
date of this Agreement (or such other date as set forth on Exhibit C)(other than
items of Debt which individually do not exceed $1,000,000 and collectively do
not exceed $5,000,000).
9.14 Taxes. The Company has filed all income or franchise tax returns and
reports required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except for any such taxes or
charges which are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with generally
accepted accounting principles shall have been set aside on its books.
9.15 Compliance with Laws. Except as set forth on Exhibit F, the Company is
not in violation of any law, ordinance, rule, regulation or order of any
governmental authority applicable to it or its property (including, without
limitation, any Environmental Law), except where any such violation would not
materially and adversely affect the financial condition, prospects, business, or
operations of the Company and its Subsidiaries taken as a whole.
SECTION 10 COVENANTS.
Until the expiration or termination of the Commitments, and thereafter
until all obligations of the Company hereunder and under the Loan Documents are
paid in full, the Company agrees that, unless at any time the Required Lenders
shall otherwise expressly consent in writing, it will:
10.1 Reports, Certificates and Other Information. Furnish to each Lender:
10.1.1 Annual Report. Within 90 days after each fiscal year of the
Company, a copy of the annual report of the Company to the SEC on Form
10-K. Concurrently with the delivery of each such annual report, the
Company will furnish to each Lender the written statement of the
certified public accountants whose opinion is contained in such annual
report to the effect that in making the examination necessary for their
opinion relating to the Company's financial statements contained in
such annual
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report (no other review having been conducted), they have obtained no
knowledge of any event described in Section 12.1.1, 12.1.2 or 12.1.6,
or of any other circumstance that such accountants should disclose in
the exercise of then generally accepted auditing standards; or, if
such accountants shall have obtained knowledge of any such event or
any such other circumstance, they shall disclose in such statement the
event(s) or circumstances(s) and the nature and status thereof.
10.1.2 Interim Reports. Within 60 days after each quarter (except
the last quarter) of each fiscal year of the Company, a copy of the
quarterly report of the Company to the SEC on Form 10-Q, signed by a
proper accounting officer of the Company.
10.1.3 Certificates. Contemporaneously with the furnishing of a
copy of each report provided for in Section 10.1.1 or 10.1.2, a
certificate dated the date of such report and signed by an authorized
officer of the Company, (a) to the effect that, to the best of his
knowledge, after diligent inquiry, no Event of Default or Unmatured
Event of Default has occurred and is continuing, or, if there is any
such event, describing it and the steps, if any, being taken to cure
it, and (b) containing a computation in reasonable detail of the
covenants set forth in Sections 10.11, 10.15 and 10.16 as of the end
of the applicable fiscal quarter or fiscal year.
10.1.4 Reports to SEC and to Shareholders. Promptly upon their
becoming available, copies of (i) each financial statement, report,
notice or proxy statement sent by the Company to its stockholders
generally, and (ii) each regular or periodic report or other report
with respect to the institution of, or any adverse determination in,
any litigation, arbitration proceeding, or governmental or regulatory
proceeding, and any registration statement or prospectus (other than on
or in respect of Form S-8 or any similar form) or similar document, in
each case, filed by the Company with any securities exchange or with
the SEC or any successor agency.
10.1.5 Notice of Default and ERISA Matters. Forthwith
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upon learning of the occurrence of any of the following, written
notice thereof, describing the same and the steps being taken by the
Company with respect thereto: (i) the occurrence of an Event of
Default or an Unmatured Event of Default, or (ii) the occurrence of a
Reportable Event Under, or the institution of steps by the Company or
any Subsidiary to withdraw from or the institution of any steps to
terminate, any employee benefit plan as to which the Company may have
any liability.
10.1.6 Significant Subsidiaries. A written report of
any changes in the list of its Significant Subsidiaries,
promptly upon the occurrence thereof.
10.1.7 Other Information. From time to time, such
other information concerning the Company and its
Subsidiaries as any Lender or the Administrative Agent may
reasonably request.
10.2 Books, Records, and Inspections. Maintain complete and accurate books
and records; permit access by any Lender or the Administrative Agent to the
books and records of the Company; and permit any Lender or the Administrative
Agent to inspect the properties and operations of the Company.
10.3 Insurance. Maintain such insurance as may be required by law, and
maintain such other insurance, to such extent and against such hazards and
liabilities, as is customarily maintained by companies similarly situated and
operating like properties.
10.4 Taxes and Liabilities. Pay when due all taxes, assessments, and other
liabilities except as contested in good faith and by appropriate proceedings.
10.5 Mergers, Consolidations, Sales. Not be a party to any merger or
consolidation, or purchase or otherwise acquire all or substantially all of the
assets or stock of any class of, or any partnership or joint venture interest
in, any other Person that if such Person had been a Subsidiary of the Company,
would be a Significant Subsidiary, or, except in the ordinary course of its
business, sell, transfer, convey or lease all or any substantial part of its
assets, except for any such merger or consolidation,
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sale, transfer, conveyance, lease or assignment of or by any wholly-owned
Subsidiary into the Company and any such purchase or other acquisition by the
Company of the assets or stock of any wholly-owned Subsidiary.
10.6 Maintenance of Properties. Cause all properties used or useful in the
conduct of the business of the Company to be maintained, and kept in reasonable
condition, repair and working order, and cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that the Company shall not be prevented from discontinuing
the operation and maintenance of any such properties if such discontinuance is,
in the judgment of the Company, desirable in the operation of its business and
not disadvantageous in any material respect to any Lender.
10.7 Conduct of Business. Carry out and conduct its business in
substantially the same manner and in substantially the same fields as
contemplated in the Company's Form 10-K filed with the SEC for the fiscal year
ended December 31, 1995, and do or cause to be done all things necessary to
preserve and keep in full force and effect the corporate existence, and the
rights (statutory and arising under its Articles of Incorporation) and
franchises, of the Company; provided, however, that the Company shall not be
required to preserve any such right or franchise if it determines that the
preservation thereof is no longer necessary or desirable in the conduct of its
business and that the loss thereof is not disadvantageous in any material
respect to the holder of any Note.
10.8 Employee Benefit Plans. Maintain each employee benefit plan as to
which it may have any liability in compliance with all applicable requirements
of law and regulations.
10.9 Use of Proceeds. Use the proceeds of all Loans only for the payment of
dividends, making investments in or acquisitions of non-regulated,
energy-related businesses, and for general corporate purposes; and not use any
proceeds of any Loan, or permit any such proceeds to be used, either directly or
indirectly, for the purpose, whether immediate, incidental or
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ultimate, of "purchasing or carrying" any Margin Stock.
10.10 Other Agreements. Not enter into any agreement containing any
provision that would be violated or breached by the performance of its
obligations hereunder or under any instrument or document delivered or to be
delivered by it hereunder or in connection herewith.
10.11 Restrictions on Debt. Not at any time permit all Debt of the Company
to exceed the product of 3 multiplied by the lesser of (a) the amount of
dividends paid to the Company during the period of four consecutive fiscal
quarters then most recently ended and (b) the aggregate net income of all
Subsidiaries of the Company during such period.
10.12 Illinois Power. Cause Illinois Power to comply with all of the
covenants set forth in Section 9 of the Credit Agreement dated as of May 26,
1995 among Illinois Power, various financial institutions and Bank of America
National Trust and Savings Association, as agent, as such Credit Agreement is in
effect on the date hereof (without giving effect to (i) any termination thereof
or (ii) any amendment or other modification thereto unless consented to by the
Required Lenders). A copy of such Section 9 as in effect on the date hereof is
attached hereto as Exhibit H.
10.13 Compliance with Laws. Comply in all material respects with all laws,
ordinances, rules, regulations or orders of any governmental authority having
jurisdiction over it or its business (including, without limitation, the Federal
Fair Labor Standards Act and Environmental Laws), except as such may be
contested in good faith by appropriate proceedings.
10.14 Limitation on Liens. Not, and not permit any Significant Subsidiary
to create, incur, assume or permit to exist any Lien on any of its properties
(other than Liens on the common stock of Illinois Power so long as the
obligations of the Company hereunder are equally and ratably secured), except
(a) any Liens in existence as of the Effective Date and
listed on Exhibit G hereto;
(b) Liens for taxes, assessments or other governmental
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charges or levies not yet due or which are being contested in good faith by
appropriate proceedings;
(c) Liens in connection with workmen's compensation, unemployment
insurance or other social security, old age pension or similar obligations;
(d) Liens in connection with any litigation or other legal proceeding
or arising out of a judgment or award, for sums not exceeding $5,000,000, with
respect to which an appeal is being prosecuted and the execution or other
enforcement of such Liens is effectively stayed;
(e) landlord's, vendor's, carrier's, warehousemen's, repairmen's,
mechanic's, workmen's, materialmen's, construction or similar Liens;
(f) easements, rights-of-way, restrictions and other similar
encumbrances which, in the aggregate, do not materially adversely interfere with
the occupation, use and enjoyment of the property encumbered thereby;
(g) in the case of Illinois Power, (i) Liens arising pursuant to that
certain Mortgage and Deed of Trust from Illinois Power to Xxxxxx Trust and
Savings Bank, as Trustee, dated as of November 1, 1943, and "permitted liens" as
defined in such Mortgage, and (ii) Liens arising pursuant to that certain
General Mortgage Indenture and Deed of Trust from Illinois Power to Xxxxxx Trust
and Savings Bank, as Trustee, dated as of November 1, 1992, and "Permitted
Liens" as defined in such General Mortgage;
(h) in the case of any Significant Subsidiary, Capital
Leases;
(i) in the case of the Company, purchase money security interests and
Capital Leases, provided that the aggregate amount of the Debt secured thereby
shall not exceed $1,000,000; and
(j) extensions, renewals or replacements of any Lien permitted by the
foregoing provisions of this Section 10.14, but only if the principal amount of
the Debt secured thereby immediately prior to such extension, renewal or
replacement is
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not increased and such Lien is not extended to any other property.
10.15 Illinova Net Worth. Not permit Consolidated Net Worth to at any time
be less than $1,100,000,000.
10.16 Illinois Power Stock Repurchase Capacity. Not permit Stock Repurchase
Capacity to at any time be less than $75,000,000.
SECTION 11 CONDITIONS OF LENDING.
The obligation of each Lender to make its Loans is subject to the
following conditions precedent:
11.1 Initial Loan. The obligation of each Lender to make its initial Loan
is, in addition to the conditions precedent specified in Section 11.2, subject
to the conditions precedent (and the date on which all such conditions precedent
have been satisfied or waived in writing by the Lenders is herein called the
"Effective Date") that (i) the Existing Agreement shall have been terminated and
all amounts due and owing thereunder shall have been paid in full and (ii) the
Administrative Agent shall have received all of the following, each duly
executed and dated the Effective Date (or such other date as shall be
satisfactory to the Administrative Agent), in form and substance satisfactory to
the Administrative Agent, and each (except for the Notes, of which only the
originals shall be signed) in sufficient number of signed counterparts to
provide one for each Lender:
11.1.1 Notes. The Notes of the Company payable to the order of the Lenders.
11.1.2 Resolutions. Certified copies of resolutions of the Board of
Directors of the Company authorizing the execution, delivery and performance by
the Company of this Agreement, the Notes, the other Loan Documents and the other
documents to be executed by the Company pursuant hereto.
11.1.3 Consents, etc. Certified copies of all documents evidencing any
consents and governmental approvals (if any) required for the execution,
delivery and performance by the Company of this Agreement, the Notes, the Loan
Documents and the
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other documents to be executed by the Company pursuant hereto.
11.1.4 Incumbency and Signature Certificates. An incumbency and signature
certificate of the Company certifying the names of the officer or officers of
the Company authorized to sign this Agreement, the Notes, the Loan Documents and
the other documents required to be delivered by the Company in connection with
this Agreement, together with a sample of the true signature of each such
officer (it being understood that the Administrative Agent and each Lender may
conclusively rely on such certificate until formally advised by a like
certificate of any changes therein).
11.1.5 Opinion of Counsel for the Company. The opinion of Xxxxxx Xxxxxx &
Xxxxx, counsel to the Company, substantially in the form of Exhibit D.
11.1.6 Other. Such other documents as the Administrative
Agent or any Lender may reasonably request.
11.2 All Loans. The obligation of each Lender to make each
Loan is subject to the following further conditions precedent
that:
11.2.1 No Default. (a) No Event of Default or Unmatured Event of Default has
occurred and is continuing or will result from the making of such Loan and (b)
the warranties of the Company contained in Section 9 (excluding (i) the second
sentence of Section 9.6, (ii) Section 9.8 and (iii) Section 9.9) are true and
correct in all material respects as of the date of the making of such requested
Loan, with the same effect as though made on such date.
11.2.2 Satisfaction of Conditions Precedent. Each request by the Company for
the making of a Loan shall be deemed to constitute a warranty by the Company
that the conditions precedent set forth in Section 11.2.1 will be satisfied at
the time of the making of such Loan.
SECTION 12 EVENTS OF DEFAULT AND THEIR EFFECT.
12.1 Events of Default. Each of the following shall constitute an Event
of Default under this Agreement:
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12.1.1 Non-Payment of the Loans, etc. Default in the payment when
due of the principal of any Loan; or default, and continuance thereof
for five days, in the payment when due of any interest, fees or other
amount payable by the Company hereunder or under any other Loan
Document.
12.1.2 Non-Payment of Other Debt. Any default shall occur under the
terms applicable to any Debt of the Company or Illinois Power in an
aggregate amount (for all Debt so affected) exceeding $10,000,000 or
under the terms applicable to any Debt of any other Subsidiary in an
aggregate amount (for all Debt so affected) exceeding $5,000,000 and
such default shall (a) consist of the failure to pay such Debt when due
(subject to any applicable grace period), whether by acceleration or
otherwise, or (b) accelerate the maturity of such Debt or permit the
holder or holders thereof, or any trustee or agent for such holder or
holders, to cause such Debt to become due and payable prior to its
expressed maturity.
12.1.3 Warranties. Any warranty made by the Company herein is
breached or is false or misleading in any material respect, or any
schedule, certificate, financial statement, report, notice or other
writing furnished by the Company to the Administrative Agent or any
Lender is false or misleading in any material respect on the date as of
which the facts therein set forth are stated or certified.
12.1.4 Bankruptcy, Insolvency, etc. The Company or any Subsidiary
becomes insolvent or generally fails to pay, or admits in writing its
inability or refusal to pay, debts as they become due; or the Company
or any Subsidiary applies for, consents to, or acquiesces in the
appointment of a trustee, receiver or other custodian for the Company
or such Subsidiary or any property thereof, or makes a general
assignment for the benefit of creditors; or, in the absence of such
application, consent or acquiescence, a trustee, receiver or other
custodian is appointed for the Company or any Subsidiary or for a
substantial part of the property of any thereof and is not discharged
within 60 days; or any bankruptcy, reorganization, debt arrangement, or
other case or proceeding under any bankruptcy or insolvency law, or any
dissolution or liquidation proceeding (except the voluntary
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dissolution, not under any bankruptcy or insolvency law, of a
Subsidiary other than Illinois Power), is commenced in respect of the
Company or any Subsidiary, and if such case or proceeding is not
commenced by the Company or such Subsidiary, it is consented to or
acquiesced in by the Company or such Subsidiary, or remains for 60 days
undismissed; or the Company or any Subsidiary takes any corporate or
partnership action to authorize, or in furtherance of, any of the
foregoing.
12.1.5 Non-Compliance with Provisions of this Agreement. Failure by
the Company to comply with or to perform any covenant set forth in
Sections 10.1.5, 10.5, 10.9, 10.11, 10.12, 10.14, 10.15 and 10.16; or
failure by the Company to comply with or to perform any other provision
of this Agreement (and not constituting an Event of Default
under any of the other provisions of this Section 12) and continuance
of such failure for 30 days after notice thereof to the Company from
the Administrative Agent or any Lender.
12.1.6 Employee Benefit Plans. With respect to any employee benefit
plan as to which the Company or any Subsidiary may have any liability,
there shall exist a deficiency of more than $20,000,000 in the plan
assets available to satisfy the benefits guaranteeable under ERISA with
respect to such plan, or such plan is terminated or the Company or any
Subsidiary withdraws from such plan.
12.1.7 Ownership of Significant Subsidiaries. The Company shall
fail at any time to own, directly or indirectly, all of the capital
stock of each Subsidiary which is at any time a Significant Subsidiary,
in each case free and clear of any Lien.
12.1.8 Judgments. Final judgments which exceed an aggregate of
$10,000,000 shall be rendered against the Company, or any Subsidiary
and shall not have been discharged or vacated or had execution thereof
stayed pending appeal within 30 days after entry or filing of such
judgments.
12.1.9 Change in Control. (a) Any Person or group of Persons
(within the meaning of Section 13 or 14 of the
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Securities Exchange Act of 1934, as amended) shall acquire beneficial
ownership (within the meaning of Rule 13d-3 promulgated under such
Act) of 20% or more of the outstanding shares of common stock of the
Company; or (b) during any 24-month period, individuals who at the
beginning of such period constituted the Company's Board of Directors
(together with any new directors whose election by the Company's Board
of Directors or whose nomination for election by the Company's
shareholders was approved by a vote of a majority of the directors who
either were directors at the beginning of such period or whose
election or nomination was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of the
Company.
12.1.10 Environmental. The Company or any of its Subsidiaries shall
be the subject of any proceeding or investigation pertaining to the
release by the Company or any of its Subsidiaries, or any other Person
of any toxic or hazardous waste or substance into the environment, or
there shall occur any violation of any Environmental Law, which, in
either case, could materially and adversely affect the financial
condition, prospects, business or operations of the Company and its
Subsidiaries taken as a whole.
12.2 Effect of Event of Default. If any Event of Default described in
Section 12.1.4 shall occur, the Commitments (if they have not theretofore
terminated) shall immediately terminate and the Notes and all other obligations
hereunder shall become immediately due and payable, all without presentment,
demand, protest or notice of any kind; and in the case of any other Event of
Default, the Administrative Agent may, and upon written request of the Required
Lenders shall, declare the Commitments (if they have not theretofore terminated)
to be terminated and/or declare all Notes and all other obligations hereunder to
be due and payable, whereupon the Commitments (if they have not theretofore
terminated) shall immediately terminate and/or all Notes and all other
obligations hereunder shall become immediately due and payable, all without
presentment, demand, protest or notice of any kind. The Administrative Agent
shall promptly advise the Company of any such declaration, but failure to do so
shall not impair the effect of such declaration. Notwithstanding the foregoing,
the effect as an Event of Default
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of any event described in Section 12.1.1 or Section 12.1.4 may be waived by the
written concurrence of all of the Lenders, and the effect as an Event of
Default of any other event described in this Section 12 may be waived by the
written concurrence of the Required Lenders.
SECTION 13 THE ADMINISTRATIVE AGENT.
13.1 Authorization. Each Lender authorizes the Administrative Agent to act
on behalf of such Lender to the extent provided herein or any other document or
instrument delivered hereunder or in connection herewith, and to take such other
action as may be reasonably incidental thereto.
13.2 Indemnification. Each Lender agrees to reimburse and indemnify the
Administrative Agent for, and hold the Administrative Agent harmless against, a
share (determined in accordance with such Lender's Percentage) of any loss,
damage, penalty, action, judgment, obligation, cost, disbursement, liability or
expense (including reasonable attorneys' fees) which may at any time be incurred
by the Administrative Agent (and for which the Administrative Agent is not
reimbursed by the Company) arising out of or in connection with the performance
of its obligations or the exercise of its powers hereunder or any other document
or instrument delivered hereunder or in connection herewith, as well as the
costs and expenses of defending against any claim against the Administrative
Agent arising hereunder or thereunder, provided that no Lender shall be liable
for any of the foregoing which are determined by a court of competent
jurisdiction in a final proceeding to have resulted solely from the
Administrative Agent's gross negligence or willful misconduct.
13.3 Exculpation. The Administrative Agent shall be entitled to rely upon
advice of counsel concerning legal matters, and upon this Agreement and any
schedule, certificate, statement, report, notice or other writing which it
believes to be genuine or to have been presented by a proper person. Neither the
Administrative Agent nor any of its directors, officers, employees or agents
shall (i) be responsible for any recitals, representations or warranties
contained in, or for the execution, validity, genuineness, effectiveness or
enforceability of, this Agreement or any other instrument or document delivered
hereunder
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or in connection herewith, (ii) be responsible for the validity, genuineness,
perfection, effectiveness, enforceability, existence, value or enforcement of
any collateral security, (iii) be under any duty to inquire into or pass upon
any of the foregoing matters, or to make any inquiry concerning the performance
by the Company or any other obligor of its obligations, or (iv) in any event, be
liable as such for any action taken or omitted by it or them, except for its or
their own gross negligence or willful misconduct. The agency hereby created
shall in no way impair or affect any of the rights and powers of, or impose any
duties or obligations upon, the Administrative Agent in its individual capacity.
13.4 Credit Investigation. Each Lender acknowledges that it has made such
inquiries and taken such care on its own behalf as would have been the case had
such Lender's Commitment been granted and such Lender's Loans been made directly
by such Lender to the Company without the intervention of the Administrative
Agent or any other Lender. Each Lender agrees and acknowledges that the
Administrative Agent makes no representations or warranties about the
creditworthiness of the Company or any other party to this Agreement or with
respect to the legality, validity, sufficiency or enforceability of this
Agreement or any Note or the value of any security therefor.
13.5 Administrative Agent and Affiliates. The Administrative Agent in its
individual capacity shall have the same rights and powers hereunder as any other
Lender and may exercise or refrain from exercising the same as though it were
not the Administrative Agent, and the Administrative Agent and its affiliates
may accept deposits from and generally engage in any kind of business with the
Company or any affiliate thereof as if the Administrative Agent were not the
Administrative Agent hereunder.
13.6 Action on Instructions of the Required Lenders. As to any matters not
expressly provided for by this Agreement (including, without limitation,
enforcement of this Agreement and collection of the Loans), the Administrative
Agent shall not be required to exercise any discretion or take any action, but
the Administrative Agent shall in all cases be fully protected in acting or
refraining from acting upon the written instructions (i) from the Required
Lenders, except for instructions which
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under the express provisions hereof must be received by the Administrative Agent
from all Lenders, and (ii) in the case of such instructions, from all Lenders.
In no event will the Administrative Agent be required to take any action which
exposes the Administrative Agent to personal liability or which is contrary to
this Agreement or applicable law. The relationship between the Agent and the
Lenders is and shall be that of agent and principal only and nothing herein
contained shall be construed to constitute the Administrative Agent a trustee
for any holder of a Note or of a participation therein nor to impose on the
Administrative Agent duties and obligations other than those expressly provided
for herein.
13.7 Funding Reliance. (a) Unless the Administrative Agent receives notice
from a Lender by 1:00 p.m., Atlanta time, on the day of a proposed borrowing
that such Lender will not make available to the Administrative Agent the amount
which would constitute its Percentage of such borrowing in accordance with
Section 2.3, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent and, in reliance upon such
assumption, make a corresponding amount available to the Company. If and to the
extent such Lender has not made any such amount available to the Administrative
Agent, such Lender and the Company jointly and severally agree to repay such
amount to the Administrative Agent forthwith on demand, together with interest
thereon (i) in the case of the Company, the interest rate applicable to Loans
comprising such borrowing and (ii) in the case of such Lender, the Federal Funds
Rate (or, beginning on the third Business Day after demand, the rate set forth
in clause (i)). Nothing set forth in this clause (a) shall relieve any Lender of
any obligation it may have to make any Loan hereunder.
(b) Unless the Administrative Agent receives notice from the Company
prior to the due date for any payment hereunder that the Company does not intend
to make such payment, the Administrative Agent may assume that the Company has
made such payment and, in reliance upon such assumption, make available to each
Lender its share of such payment. If and to the extent that the Company has not
made any such payment to the Administrative Agent, each Lender which received a
share of such payment shall repay such share (or the relevant portion thereof)
to the Administrative Agent forthwith on demand, together with interest
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thereon at the Federal Funds Rate (or, beginning on the third Business Day after
demand, at the Floating Rate). Nothing set forth in this clause (b) shall
relieve the Company of any obligation it may have to make any payment hereunder.
13.8 Resignation. The Administrative Agent may resign as such at any time
upon at least 30 days' prior notice to the Company and the Lenders. In the event
of any such resignation, the Required Lenders (with, so long as no Event of
Default or Unmatured Event of Default exists, the consent of the Company, which
consent shall not be unreasonably delayed or withheld) shall as promptly as
practicable appoint a successor Administrative Agent. If no successor shall have
been so appointed, and shall have accepted such appointment, within 30 days
after the giving of notice of such resignation, then the retiring Administrative
Agent may, on behalf of the Lenders, appoint a successor Administrative Agent,
which shall be a commercial bank having a branch in the United States of America
and having a combined capital, surplus and undivided profits of at least
$500,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from all further duties and obligations
under this Agreement. After any resignation pursuant to this Section 13.8, the
provisions of this Section 13 shall inure to the benefit of the retiring
Administrative Agent as to any actions taken or omitted to be taken by it while
it was Administrative Agent hereunder.
SECTION 14 GENERAL.
14.1 Waiver; Amendments. No delay on the part of the Administrative Agent
or any Lender in the exercise of any right, power or remedy shall operate as a
waiver thereof, nor shall any single or partial exercise by any of them of any
right, power or remedy preclude other or further exercise thereof, or the
exercise of any other right, power or remedy. No amendment, modification or
waiver of, or consent with respect to, any provision of this Agreement or the
Notes shall in any event be effective unless the same shall be in writing and
signed and delivered by the Administrative Agent and signed and delivered by
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Lenders having an aggregate Percentage of not less than the aggregate Percentage
expressly designated herein with respect thereto or, in the absence of such
designation as to any provision of this Agreement or the Notes, by the Required
Lenders, and then any such amendment, modification, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. No amendment, modification, waiver or consent shall (i) extend or
increase the amount of the Commitments, (ii) extend the date for payment of any
principal of or interest on the Loans or any fees payable hereunder, (iii)
reduce the principal amount of any Loan, the rate of interest thereon or any
fees payable hereunder, (iv) change the definition of Required Lenders or
otherwise reduce the aggregate Percentage required to effect an amendment,
modification, waiver or consent or (v) amend this sentence without, in each
case, the consent of all Lenders. No provisions of Section 13 shall be amended,
modified or waived without the written consent of the Administrative Agent.
14.2 Confirmations. The Company and each holder of a Note agree from time
to time, upon written request received by it from the other, to confirm to the
other in writing (with a copy of each such confirmation to the Administrative
Agent) the aggregate unpaid principal amount of the Loans then outstanding under
such Note.
14.3 Notices. Except as otherwise provided in Sections 2.3, 2.4 and 4.3,
all notices hereunder shall be in writing (including, without limitation,
facsimile transmission) and shall be sent to the applicable party at its address
shown below its signature hereto or at such other address as such party may, by
written notice received by the other party, have designated as its address for
such purpose. Notices sent by facsimile transmission shall be deemed to have
been given when sent; notices sent by mail shall be deemed to have been given
three Business Days after the date when sent by registered or certified mail,
postage prepaid; and notices sent by hand delivery shall be deemed to have been
given when received. For purposes of Sections 2.3, 2.4 and 4.3, the
Administrative Agent shall be entitled to rely on telephonic instructions from
any person that the Administrative Agent in good faith believes is an authorized
officer or employee of the Company, and the Company shall hold the
Administrative Agent and each Lender harmless from
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any loss, cost or expense resulting from any such reliance.
14.4 Costs, Expenses and Taxes. The Company agrees to pay on demand all
reasonable out-of-pocket costs and expenses of the Agents and the Co-Arrangers
(including the fees and charges of counsel for the Administrative Agent and of
local counsel, if any, who may be retained by said counsel) in connection with
the preparation, execution, delivery and administration of this Agreement and
all other documents provided for herein or delivered or to be delivered
hereunder or in connection herewith (including, without limitation, any
amendment, supplement or waiver to this Agreement or any such other document).
The Company further agrees to pay all reasonable out-of-pocket costs and
expenses (including reasonable attorneys' fees, court costs and other legal
expenses and allocated costs of staff counsel) incurred by each Agent, each
Co-Arranger and each Lender in connection with (i) the negotiation of any
restructuring or "work-out" (whether or not consummated) of the obligations of
the Company hereunder and (ii) the enforcement of this Agreement or any other
document provided for herein or delivered or to be delivered hereunder or in
connection herewith. In addition, the Company agrees to pay, and to save the
Agents, the Co-Arrangers and the Lenders harmless from all liability for, any
stamp or other similar taxes which may be payable in connection with the
execution and delivery of this Agreement, the borrowings hereunder, the issuance
of the Notes or the execution and delivery of any other document provided for
herein or delivered or to be delivered hereunder or in connection herewith. All
obligations provided for in this Section 14.4 shall survive repayment of the
Loans, cancellation of the Notes and any termination of this Agreement.
14.5 Successors and Assigns. This Agreement shall be binding upon the
Company, the Lenders and the Administrative Agent and their respective
successors and assigns, and shall inure to the benefit of the Company, the
Lenders and the Administrative Agent and the successors and assigns of the
Lenders and the Administrative Agent. The Company may not assign its rights or
obligations hereunder without the prior written consent of all Lenders.
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14.6 Assignments; Participations.
14.6.1 Assignments. Any Lender may, with the prior written consents of the
Company and the Administrative Agent (which consents shall not be unreasonably
delayed or withheld), at any time assign and delegate to one or more commercial
banks or other Persons (any Person to whom such an assignment and delegation is
to be made being herein called an "Assignee"), all or any fraction of such
Lender's Loans and Commitment (which assignment and delegation shall be of a
constant, and not a varying, percentage of all the assigning Lender's Loans and
Commitment) in a minimum aggregate amount equal to the lesser of (i) the
assigning Lender's remaining Commitment and (ii) $5,000,000; provided, however,
that (a) no assignment and delegation may be made to any Person if, at the time
of such assignment and delegation, the Company would be obligated to pay any
greater amount under Section 4.1(b), 7.6 or 8 to the Assignee than the Company
is then obligated to pay to the assigning Lender under such Section and (b) the
Company and the Administrative Agent shall be entitled to continue to deal
solely and directly with such Lender in connection with the interests so
assigned and delegated to an Assignee until the date when all of the following
conditions shall have been met:
(x) five Business Days (or such lesser period of time as the
Administrative Agent and the assigning Lender shall agree) shall have
passed after written notice of such assignment and delegation, together
with payment instructions, addresses and related information with
respect to such Assignee, shall have been given to the Company and the
Administrative Agent by such assigning Lender and the Assignee,
(y) the assigning Lender and the Assignee shall have executed
and delivered to the Company and the Administrative Agent an assignment
agreement substantially in the form of Exhibit E (an "Assignment
Agreement"), together with any documents required to be delivered
thereunder, which Assignment Agreement shall have been accepted by the
Administrative Agent and the Company, and
(z) the assigning Lender or the Assignee shall have paid the
Administrative Agent a processing fee of $2,500.
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From and after the date on which the conditions described above have been met,
(x) such Assignee shall be deemed automatically to have become a party hereto
and, to the extent that rights and obligations hereunder have been assigned and
delegated to such Assignee pursuant to such Assignment Agreement, shall have the
rights and obligations of a Lender hereunder, and (y) the assigning Lender, to
the extent that rights and obligations hereunder have been assigned and
delegated by it pursuant to such Assignment Agreement, shall be released from
its obligations hereunder. Within five Business Days after effectiveness of any
assignment and delegation, the Company shall execute and deliver to the
Administrative Agent (for delivery to the Assignee and the Assignor, as
applicable) a new Note in the principal amount of the Assignee's Commitment and,
if the assigning Lender has retained a Commitment hereunder, a replacement Note
in the principal amount of the Commitment retained by the assigning Lender (such
Note to be in exchange for, but not in payment of, the predecessor Note held by
such assigning Lender). Each such Note shall be dated the effective date of such
assignment. The assigning Lender shall xxxx the predecessor Note "exchanged" and
deliver it to the Company. Accrued interest on that part of the predecessor Note
being assigned shall be paid as provided in the Assignment Agreement. Accrued
interest and fees on that part of the predecessor Note not being assigned shall
be paid to the assigning Lender. Accrued interest and accrued fees shall be paid
at the same time or times provided in the predecessor Note and in this
Agreement. Any attempted assignment and delegation not made in accordance with
this Section 14.6.1 shall be null and void.
Notwithstanding the foregoing provisions of this Section 14.6.1 or any
other provision of this Agreement, any Lender may at any time assign all or any
portion of its Loans and its Note to a Federal Reserve Bank (but no such
assignment shall release any Lender from any of its obligations hereunder).
14.6.2 Participations. Any Lender may at any time sell to one or more
commercial banks or other Persons participating interests in any Loan owing to
such Lender, the Note held by such Lender, the Commitment of such Lender or any
other interest of such Lender hereunder (any Person purchasing any such
participating interest being herein called a "Participant"). In the event of a
sale by a Lender of a participating interest to a
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Participant, (x) such Lender shall remain the holder of its Note for all
purposes of this Agreement and (y) the Company and the Administrative Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations hereunder. No Participant shall have any
direct or indirect voting rights hereunder (except that a Lender may grant a
Participant rights with respect to any of the events described in the
penultimate sentence of Section 14.1). The Company agrees that if amounts
outstanding under this Agreement and any Note are due and payable (as a result
of acceleration or otherwise), each Participant shall be deemed to have the
right of setoff in respect of its participating interest in amounts owing under
this Agreement and any Note to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement or such Note; provided that such right of setoff shall be subject to
the obligation of each Participant to share with the Lenders, and the Lenders
agree to share with each Participant, as provided in Section 7.5. The Company
also agrees that each Participant shall be entitled to the benefits of Sections
4.1(b), 7.6 and 8 as if it were a Lender (provided that no Participant shall
receive any greater compensation pursuant to such Sections than would have been
paid to the participating Lender if no participation had been sold).
14.7 Governing Law. This Agreement and each Note shall be a contract made
under and governed by the laws of the State of Illinois applicable to contracts
made and to be performed entirely within the State of Illinois. Whenever
possible each provision of this Agreement shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement. All obligations of the Company and rights of the Administrative Agent
and the Lenders expressed herein or in the Notes shall be in addition to and not
in limitation of those provided by applicable law.
14.8 Counterparts; Effectiveness. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts and each such counterpart
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shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same Agreement. When counterparts executed by all of
the parties hereto shall have been lodged with the Administrative Agent (or, in
the case of any Lender as to which an executed counterpart shall not have been
so lodged, the Administrative Agent shall have received confirmation from such
Lender of execution of a counterpart hereof by such Lender), this Agreement
shall become effective as of the date hereof, and at such time the
Administrative Agent shall notify the Company and each Lender.
14.9 Computations. Where the character or amount of any asset or liability
or item of income or expense is required to be determined, or any consolidation
or other accounting computations is required to be made, for the purpose of this
Agreement, such determination or calculation shall, to the extent applicable and
except as otherwise specified in this Agreement, be made in accordance with
generally accepted accounting principles applied on a basis consistent with
those used in the preparation of the Company's audited financial statements for
the fiscal year of the Company ended December 31, 1995.
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Delivered at Chicago, Illinois, as of the day and year first above written.
ILLINOVA CORPORATION
By______________________________
Title___________________________
Illinova Corporation
000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
Xxxxxx Xxxxxx & Xxxxx
7200 Sears Tower
000 Xxxxx Xxxxxx Xxxxx
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CIBC INC., individually and
as Administrative Agent
By________________________________
Title_____________________________
CIBC Inc.
000 Xxxxxxxxx Xxxxxx
Syndications, 7th Floor
New York, New York 10017
Attention: Xxxxxxx Trust
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-47-
49
With a copy to:
CIBC Inc.
000 Xxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Utilities Group
Telephone: 000-000-0000
Facsimile: 000-000-0000
THE FIRST NATIONAL BANK OF CHICAGO
By________________________________
Title_____________________________
The First National Bank of
Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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50
SCHEDULE I
COMMITMENTS AND PERCENTAGES
Lender Commitment Percentage
------ ---------- ----------
CIBC Inc. $ 50,000,000 50%
The First National Bank $ 50,000,000 50%
of Chicago ------------ --
$100,000,000 100%
51
SCHEDULE II
PRICING SCHEDULE
The Applicable Margin and Non-Use Fee Rate shall be determined based
on the then-current Rating Level as set forth below.
=========================================================================================
Rating Applicable Non-Use Fee
Level Margin Rate
------- ---------- -----------
-----------------------------------------------------------------------------------------
1 0.550% 0.150%
-----------------------------------------------------------------------------------------
2 0.650% 0.175%
-----------------------------------------------------------------------------------------
3 0.875% 0.200%
-----------------------------------------------------------------------------------------
4 1.250% 0.250%
==========================================================================================
52
EXHIBIT A
FORM OF
NOTE
$___________ ___________, 199_
Chicago, Illinois
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
_________________, at the principal office of CIBC INC. (the "Administrative
Agent"), in New York, New York, on the date set forth in the Credit Agreement
referred to below, ______________________ Dollars ($____________) or, if less,
the aggregate unpaid amount of all Loans made by the payee to the undersigned
pursuant to the Credit Agreement (as shown in the records of the payee or, at
the payee's option, on the schedule attached hereto and any continuation
thereof).
The undersigned further promises to pay interest on the unpaid
principal amount of each Loan evidenced hereby from the date of such Loan until
such Loan is paid in full, payable at the rate(s) and at the time(s) set forth
in the Credit Agreement. Payments of both principal and interest are to be
made in lawful money of the United States of America.
This Note evidences indebtedness incurred under, and is subject to the
terms and provisions of, the Credit Agreement, dated as of June 12, 1996
(herein, as amended or otherwise modified from time to time, called the "Credit
Agreement"; terms not otherwise defined herein are used herein as defined in
the Credit Agreement), among the undersigned, certain financial institutions
(including the payee) and the Administrative Agent, to which Credit Agreement
reference is hereby made for a statement of the terms and provisions under
which this Note may or must be paid prior to its due date or may have its due
date accelerated.
In addition to and not in limitation of the foregoing and the
provisions of the Credit Agreement, the undersigned further agrees, subject
only to any limitation imposed by applicable law, to pay all reasonable
expenses, including reasonable attorneys' fees and legal expenses, incurred by
the holder of this Note in endeavoring to collect any amounts payable hereunder
which are not paid when due, whether by acceleration or otherwise. Each of the
Company and each guarantor hereof waives demand, presentment,
53
protest, diligence, notice of dishonor and any other formality in connection
with this Note.
This Note is made under and governed by the internal laws of the State of
Illinois.
ILLINOVA CORPORATION
By
-----------------------------
Title
---------------------------
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54
Schedule Attached to Note dated __________, 199_ of ILLINOVA CORPORATION
payable to the order of ________________________.
Date and Date and
Amount of Amount of
Loan or of Repayment or of
conversion from conversion into Unpaid
another type of another type of Interest Principal Notation
Loan Loan Period Balance Made by
1. FLOATING RATE LOANS
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
2. EURODOLLAR LOANS
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
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55
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
-4-
56
EXHIBIT B
SCHEDULE OF SIGNIFICANT SUBSIDIARIES
Percentage
Ownership of
the Company
Name of Significant State of and its
Subsidiary Organization Subsidiaries
------------------- ------------ ------------
Illinois Power Illinois 100%
Company
57
EXHIBIT C
SCHEDULE OF DEBT
Description of Debt Amount
------------------- ------
Illinois Generating Company equity
guarantee for the Tenaska Washington
Partners II, IPG Frederickson, Inc.
project $7,670,000
Illinova Generating Company equity
guarantee for the Tenaska IV Texas
Partners, IGC Brazos, Inc. project 4,867,000
Illinova Generating Company equity
guarantee for the Aguaytia energy,
L.L.C., IGC Aguaytia Partners, L.L.C.,
Project 21,718,000
Illinova letters of credit for the
Tenaska Uch Power Project 4,344,000
Illinova letters of credit for the Tenaska
Uch Power Project 17,619,000
Illinova guarantees for the account
Tenaska Marketing Ventures 23,561,000
Tenaska Marketing Ventures hedging
position Xxxx to Market 5,244,000*
* As of June 7, 1996
58
EXHIBIT D
FORM OF OPINION OF COUNSEL FOR THE COMPANY
June __, 1996
CIBC INC.,
individually and as Administrative
Agent, and the other financial
institutions which are parties to
the Credit Agreement referred to below
000 Xxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Re: Credit Agreement, dated as of June 12, 1996, with
Illinova Corporation
Ladies and Gentlemen:
We have acted as counsel for Illinova Corporation, an Illinois
corporation (the "Company"), in connection with the execution and delivery of
the Credit Agreement, dated as of June 12, 1996 (the "Credit Agreement"), among
the Company, the financial institutions which are parties thereto (the
"Lenders"), and CIBC Inc., as administrative agent for the Lenders. We are
rendering this opinion at the request of the Company as required by Section
11.1.5 of the Credit Agreement. Unless otherwise defined herein, capitalized
terms used herein shall have the respective meanings assigned to such terms in
the Credit Agreement.
In this connection, we have examined an original or a copy of the
following:
(a) The Credit Agreement;
(b) The form of Notes to be issued by the Company to each Lender;
(c) The Articles of Incorporation and By-Laws of the Company; and
(d) Resolutions adopted at a meeting of the Board of Directors of
the Company on June 11, 1996 (the "Resolutions"), certified by
the Secretary of the
59
Company.
We have examined such other records, documents, proceedings and
certificates of officers and representatives of the Company and made such other
examinations as we have deemed necessary in order to enable us to give the
opinions hereinafter contained.
For purposes of this opinion, we have assumed (a) the genuineness of
the signatures, and the authority, of persons signing all documents in
connection with which this opinion is rendered on behalf of parties other than
the Company, (b) the authenticity of all documents submitted to us as
originals, (c) the conformity to authentic original documents of all documents
submitted to us as certified or photostatic copies, and (d) that the Credit
Agreement is the legal, valid and binding obligation of the parties thereto
other than the Company.
Based upon and subject to the foregoing, and subject to the
qualifications set forth below, we are of the opinion that:
(1) The Company and Illinois Power Company are corporations duly
incorporated, validly existing and in good standing under the laws of
the jurisdiction of their respective incorporation.
(2) The Company has full corporate power to execute, deliver and
perform the Credit Agreement and the Notes, to borrow moneys under the Credit
Agreement, and to perform its obligations under the Credit Agreement and the
Notes.
(3) The execution and delivery of the Credit Agreement and the
Notes and the borrowing of Loans under the Credit Agreement, and the
performance by the Company of its obligations under the Credit Agreement and
the Notes have been duly authorized by all necessary corporate action, have
received all necessary governmental and regulatory approval, and do not and
will not violate, or result in the creation or imposition of a Lien under, any
provision of law or of the Articles of Incorporation or By-Laws of the Company
or, to our knowledge, of any agreement, instrument, order or decree that is
binding upon the Company.
(4) The Credit Agreement has been duly executed and delivered by
the Company, and the Credit Agreement is, and the Notes, when duly executed and
delivered by the Company will be,
-2-
60
legal, valid and binding obligations of the Company, enforceable in accordance
with their terms.
Our opinion is subject to the following qualifications:
(a) We express no opinion as to the effect of the law of any
jurisdiction other than the State of Illinois.
(b) We express no opinion with respect to the rights of any
Participant under Section 7.4 of the Credit Agreement.
(c) Our opinion in paragraph (4) above is subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors' rights generally and to the effect of general principles
of equity (regardless of whether considered in a proceeding in equity or at
law), including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing.
(d) We express no opinion with respect to indemnification or
contribution obligations which contravene public policy.
We are members of the bar of the State of Illinois, and the foregoing
opinion is limited to the laws of the State of Illinois and the Federal law of
the United States of America.
Very truly yours,
-3-
61
EXHIBIT E
FORM OF
ASSIGNMENT AGREEMENT
Date: ______________
To: Illinova Corporation
and
CIBC Inc., as Administrative Agent
Re: Assignment under the Credit Agreement referred to below
Gentlemen and Ladies:
We refer to Section 14.6.1 of the Credit Agreement dated as of June
12, 1996 (as amended or otherwise modified, the "Credit Agreement") among
Illinova Corporation (the "Company"), various financial institutions and CIBC
Inc., as administrative agent (the "Administrative Agent"). Unless otherwise
defined herein or the context otherwise requires, terms used herein have the
meanings provided in the Credit Agreement.
_____________________ (the "Assignor") hereby sells and assigns to
______________ (the "Assignee"), and the Assignee hereby purchases and assumes
from the Assignor, that interest in and to the Assignor's rights and
obligations under the Credit Agreement as of the date hereof equal to ____% of
all of the Loans and Commitments, such sale, purchase, assignment and
assumption to be effective as of ______________, 199__, or such later date on
which the Company and the Administrative Agent shall have consented hereto (the
"Effective Date"). After giving effect to such sale, purchase, assignment and
assumption, the Assignee's Percentage for purposes of the Credit Agreement will
be as set forth opposite the Assignee's name on the signature pages hereof.
The Assignor hereby instructs the Administrative Agent to make all
payments from and after the Effective Date in respect of the interest assigned
hereby directly to the Assignee. The Assignor and the Assignee agree that all
interest and fees accrued up to, but not including, the Effective Date are the
property of the Assignor, and not the Assignee. The Assignee
62
agrees that, upon receipt of any such interest or fees, the Assignee will
promptly remit the same to the Assignor.
The Assignee hereby confirms that it has received a copy of the Credit
Agreement and the exhibits related thereto, together with copies of the
documents which were required to be delivered under the Credit Agreement as a
condition to the making of the initial Loans thereunder. The Assignee
acknowledges and agrees that it (i) has made and will continue to make such
inquiries and has taken and will take such care on its own behalf as would have
been the case had its Commitment been granted and its Loans been made directly
by the Assignee to the Company without the intervention of the Administrative
Agent, the Assignor or any other Lender and (ii) has made and will continue to
make, independently and without reliance upon the Administrative Agent, the
Assignor or any other Lender and based on such documents and information as it
has deemed appropriate, its own credit analysis and decisions relating to the
Credit Agreement. The Assignee further acknowledges and agrees that neither
the Administrative Agent nor the Assignor has made any representation or
warranty about the creditworthiness of the Company or any other party to the
Credit Agreement or with respect to the legality, validity, sufficiency or
enforceability of the Credit Agreement or any Note or the value of any security
therefor. This assignment shall be made without recourse to the Assignor.
The Assignor 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.
The Assignee represents and warrants to the Company and the
Administrative Agent that, as of the date hereof, the Company will not be
obligated to pay any greater amount under Section 7.6 or 8.1 of the Credit
Agreement than the Company is obligated to pay to the Assignor under such
Section.
Except as otherwise provided in the Credit Agreement, effective as of
the Effective Date:
(a) the Assignee (i) shall be deemed automatically to have become
a party to the Credit Agreement and have all the rights and
obligations of a "Lender" under the Credit
-2-
63
Agreement as if it were an original signatory thereto to the
extent specified in the second paragraph hereof; and (ii)
agrees to be bound by the terms and conditions set forth in the
Credit Agreement as if it were an original signatory thereto;
and
(b) the Assignor shall be released from its obligations under the
Credit Agreement to the extent specified in the second
paragraph hereof.
The Assignor and the Assignee hereby agree that the [Assignor]
[Assignee] will pay to the Administrative Agent the processing fee referred to
in Section 14.6 of the Credit Agreement. The payment of the processing fee
shall be a condition to the effectiveness of this assignment.
The Assignee hereby advises each of you of the following
administrative details with respect to the assigned Loans and Commitment:
(A) Address for Notices:
Institution Name:
Address:
Attention:
Telephone:
Facsimile:
(B) Payment Instructions:
Please evidence your receipt hereof and consent to the sale,
assignment, purchase and assumption set forth herein by signing and returning
counterparts hereof to the Assignor and the Assignee.
Percentage = % [ASSIGNEE]
---
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64
By:
---------------------
Title:
[ASSIGNOR]
By:
--------------------
Title:
ACKNOWLEDGED AND CONSENTED TO
this ____ day of ________, 199_
CIBC INC., as Administrative Agent
By:
----------------------------------
Title:
----------------------------
ACKNOWLEDGED AND CONSENTED TO
this ___ day of _____________, 199__
ILLINOVA CORPORATION
By:
----------------------------------
Title:
----------------------------
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65
EXHIBIT F
COMPLIANCE (SECTION 9.15)
NONE
66
EXHIBIT G
LIENS (SECTION 10.14)
NONE
00
XXXXXXX X
XXXXXXX 0 XX XXXXXXXX POWER CREDIT AGREEMENT
68
TABLE OF CONTENTS
PAGE
----
SECTION 1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.3 Cross-References; Section Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2 COMMITMENTS OF THE LENDERS; TYPES OF LOANS; BORROWING AND CONVERSION PROCEDURES. . . . . 8
2.1 Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.2 Various Types of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.3 Borrowing Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.4 Conversion Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.5 Warranty upon Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.6 Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.7 Pro Rata Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.8 Commitments Several . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3 NOTES EVIDENCING LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
3.1 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
3.2 Recordkeeping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
SECTION 4 INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
4.1 Interest Rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
4.2 Interest Payment Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
4.3 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
4.4 Setting and Notice of Eurodollar Rates . . . . . . . . . . . . . . . . . . . . . . . . .12
4.5 Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
SECTION 5 FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
5.1 Non-Use Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
5.2 Administrative Agent's Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
SECTION 6 REDUCTION OR TERMINATION OF THE COMMITMENTS;
PREPAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
6.1 Reduction or Termination of the Commitments . . . . . . . . . . . . . . . . . . . . . .13
6.2 Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES . . . . . . . . . . . . . . . . . . . .13
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TABLE OF CONTENTS
(CONTINUED)
PAGE
----
7.1 Making of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
7.2 Application of Certain Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
7.3 Due Date Extension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
7.4 Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
7.5 Proration of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
7.6 Payments Net of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR EURODOLLAR LOANS. . . . . . . . . . . . . . . . .15
8.1 Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
8.2 Basis for Determining Interest Rate Inadequate or Unfair . . . . . . . . . . . . . . . .17
8.3 Changes in Law Rendering Eurodollar Loans Unlawful. . . . . . . . . . . . . . . . . . . .17
8.4 Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
8.5 Right of Lenders to Fund through Other Offices . . . . . . . . . . . . . . . . . . . . .18
8.6 Discretion of Lenders as to Manner of Funding . . . . . . . . . . . . . . . . . . . . .18
8.7 Mitigation of Circumstances; Replacement of Affected Lender . . . . . . . . . . . . . . .19
8.8 Conclusiveness of Statements; Survival of Provisions . . . . . . . . . . . . . . . . . .19
SECTION 9 WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
9.1 Organization, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
9.2 Authorization; No Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
9.3 Validity and Binding Nature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
9.4 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
9.5 Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
9.6 Litigation and Contingent Liabilities . . . . . . . . . . . . . . . . . . . . . . . . .21
9.7 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
9.8 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
9.9 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
9.10 Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
9.11 Public Utility Holding Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . .22
9.12 Regulation U . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
9.13 Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
9.14 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
9.15 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
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TABLE OF CONTENTS
(CONTINUED)
PAGE
----
SECTION 10 COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
10.1 Reports, Certificates and Other Information . . . . . . . . . . . . . . . . . . . . . .22
10.1.1 Annual Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
10.1.2 Interim Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
10.1.3 Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
10.1.4 Reports to SEC and to Shareholders . . . . . . . . . . . . . . . . . . . .23
10.1.5 Notice of Default and ERISA Matters . . . . . . . . . . . . . . . . . . . .23
10.1.6 Significant Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . .24
10.1.7 Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
10.2 Books, Records, and Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
10.3 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
10.4 Taxes and Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
10.5 Mergers, Consolidations, Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
10.6 Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
10.7 Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
10.8 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
10.9 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
10.10 Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
10.11 Restrictions on Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
10.12 Illinois Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
10.13 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
10.14 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
10.15 Illinova Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
10.16 Illinois Power Stock Repurchase Capacity . . . . . . . . . . . . . . . . . . . . . . . .27
SECTION 11 CONDITIONS OF LENDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
11.1 Initial Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
11.1.1 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
11.1.2 Resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
11.1.3 Consents, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
11.1.4 Incumbency and Signature Certificates . . . . . . . . . . . . . . . . . . .28
11.1.5 Opinion of Counsel for the Company . . . . . . . . . . . . . . . . . . . .28
11.1.6 Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
11.2 All Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
11.2.1 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
11.2.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
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TABLE OF CONTENTS
(CONTINUED)
PAGE
----
SECTION 12 EVENTS OF DEFAULT AND THEIR EFFECT . . . . . . . . . . . . . . . . . . . . . . . . . . .28
12.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
12.1.1 Non-Payment of the Loans, etc. . . . . . . . . . . . . . . . . . . . . . .29
12.1.2 Non-Payment of Other Debt . . . . . . . . . . . . . . . . . . . . . . . . .29
12.1.3 Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
12.1.4 Bankruptcy, Insolvency, etc . . . . . . . . . . . . . . . . . . . . . . . .29
12.1.5 Non-Compliance with Provisions of this Agreement . . . . . . . . . . . . .30
12.1.6 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . .30
12.1.7 Ownership of Significant Subsidiaries . . . . . . . . . . . . . . . . . . .30
12.1.8 Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
12.1.9 Change in Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
12.1.10 Environmental . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
12.2 Effect of Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
SECTION 13 THE ADMINISTRATIVE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
13.1 Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
13.2 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
13.3 Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
13.4 Credit Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
13.5 Administrative Agent and Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . .32
13.6 Action on Instructions of the Required Lenders . . . . . . . . . . . . . . . . . . . . .33
13.7 Funding Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
13.8 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
SECTION 14 GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
14.1 Waiver; Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
14.2 Confirmations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
14.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
14.4 Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
14.5 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
14.6 Assignments; Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
14.6.1 Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
14.6.2 Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
14.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
14.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
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SCHEDULE I Commitments and Percentages
SCHEDULE II Pricing Schedule
EXHIBIT A Form of Note (Section 3.1)
EXHIBIT B Schedule of Significant Subsidiaries (Section 9.8)
EXHIBIT C Schedule of Debt (Section 9.13)
EXHIBIT D Form of Opinion of Counsel for the Company
(Section 11.1.5)
EXHIBIT E Form of Assignment Agreement (Section 14.6.1)
EXHIBIT F Compliance (Section 9.15)
EXHIBIT G Liens (Section 10.14)
EXHIBIT H Illinois Power Credit Agreement (Section 10.12)
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FIRST AMENDMENT
Dated as of June 28, 1996
THIS FIRST AMENDMENT dated as of June 28, 1996 amends the Credit
Agreement dated as of June 12, 1996 (the "Credit Agreement") among ILLINOVA
CORPORATION (the "Company"), various financial institutions and CIBC INC., as
Administrative Agent (the "Administrative Agent"). Terms defined in the Credit
Agreement are, unless otherwise defined herein or the context otherwise
requires, used herein as defined therein.
WHEREAS, the Company, the Administrative Agent and the Lenders have
entered into the Credit Agreement which provides for the Lenders to make Loans
to the Company from time to time; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in
certain respects as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 15 AMENDMENTS. Effective on (and subject to the occurrence
of) the First Amendment Effective Date (as defined below), the Credit Agreement
shall be amended in accordance with Sections 1.1 through 1.3 below.
15.1 Addition of Lenders. The Credit Agreement is amended to include
each of Bank of America Illinois, The First National Bank of Boston, Bank of
Montreal, The Fuji Bank, Limited, ABN AMRO Bank N.V., The Bank of New York and
Deutsche Bank A.G. (collectively, the "Purchasing Lenders" and each
individually a "Purchasing Lender") as a party to the Credit Agreement, as
amended hereby (as so amended, the "Amended Credit Agreement"), and each such
entity shall have all rights and obligations of a Lender under the Amended
Credit Agreement.
74
15.2 Section 2.1. Section 2.1 of the Credit Agreement is amended by
deleting the amount "$100,000,000" therein and substituting therefor the amount
"$150,000,000".
15.3 Section 9.8. Section 9.8 of the Credit Agreement is amended by
deleting the language "free and clear of any Lien" at the end of such Section.
15.4 Section 11.2.1. The parenthetical in clause (b) of Section
11.2.1 of the Credit Agreement is amended in its entirety to read as follows:
(excluding (i) the second sentence of Section 9.6 and (ii) the first
sentence of Section 9.8)
15.5 Section 12.1.7. Section 12.1.7 of the Credit Agreement is
amended in its entirety to read as follows:
12.1.7 Ownership of Significant Subsidiaries. The
Company shall fail at any time to own, directly or indirectly, all of
the capital stock of each Subsidiary which is at any time a
Significant Subsidiary.
15.6 Schedule I. Schedule I of the Credit Agreement is amended in its
entirety to read in the form of Schedule I attached hereto.
SECTION 16 ASSIGNMENTS. In furtherance of the amendments set forth
in Sections 1.1 and 1.3, on the First Amendment Effective Date each of CIBC
Inc. and The First National Bank of Chicago (collectively, the "Assigning
Lenders") shall sell assignments to the Purchasing Lenders, and each of the
Purchasing Lenders shall purchase assignments from each of the Assigning
Lenders, so that, after giving effect to such purchases and sales, each Lender
will have a pro rata share (according to its Percentage, after giving effect to
Section 1.6) of all Types of Loans. All payments shall be made in immediately
available funds by the Purchasing Lenders to the Administrative Agent for the
account of the Assigning Lenders at the office of the Administrative Agent in
New York not later than 1:00 p.m., New York time, on the First Amendment
Effective Date. The
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Administrative Agent shall promptly remit to each Assigning Lender its
share of all such payments.
SECTION 17 REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to the Administrative Agent and the Lenders that (a) each warranty
set forth in Section 9 of the Amended Credit Agreement is true and correct as
on the date hereof, (b) the execution and delivery by the Company of this First
Amendment and the New Notes (as defined below) and the performance by the
Company of its obligations under the Amended Credit Agreement and the New Notes
(i) are within the corporate powers of the Company, (ii) have been duly
authorized by all necessary corporate action, (iii) have received all necessary
governmental approvals and (iv) do not and will not contravene or conflict with
any provision of law or of the articles of incorporation or by-laws of the
Company or of any indenture, loan agreement or other contract, order or decree
which is binding upon the Company and (c) each of the Amended Credit Agreement
and each New Note is the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
SECTION 18 EFFECTIVENESS. The amendments and assignments set forth in
Sections 1 and 2 above shall become effective, as of the day and year first
above written, on such date (the "First Amendment Effective Date") which is the
later to occur of (i) June 28, 1996 and (ii) the date on which the
Administrative Agent shall have received (a) counterparts of this First
Amendment executed by all of the parties hereto and (b) each of the following
documents in form and substance satisfactory to the Administrative Agent:
18.1 New Notes. Promissory notes (the "New Notes") of
the Company, in the form of Exhibit A to the Credit Agreement, payable
to the order of the Lenders in the amount of their respective
Commitments after giving effect hereto.
18.2 Resolutions. Certified copies of resolutions of the
Board of Directors of the Company authorizing the execution and
delivery by the Company of this First Amendment and the New Notes and
the performance by the
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Company of this First Amendment, the Amended Credit Agreement and the
New Notes.
18.3 Incumbency and Signature Certificates. A
certificate of the Secretary or an Assistant Secretary of the Company
certifying the names of the officer or officers of the Company
authorized to sign this First Amendment, the New Notes and any other
document to be executed pursuant to this First Amendment or the
Amended Credit Agreement, together with a sample of the true signature
of each such officer (it being understood that the Administrative
Agent and each Lender may conclusively rely on each such certificate
until formally advised by a like certificate of any changes therein).
18.4 Opinion of Counsel for the Company. The opinion of
Xxxxxx Xxxxxx & Xxxxx, counsel to the Company, substantially in the
form of Exhibit A.
18.5 Other. Such other documents as the Administrative
Agent or any Lender may reasonably request.
SECTION 19 MISCELLANEOUS.
19.1 Continuing Effectiveness, etc. As herein amended, the Credit
Agreement shall remain in full force and effect and is atified and confirmed in
all respects. After the First Amendment Effective Date, all references in the
Credit Agreement and the New Notes to "Credit Agreement", "Agreement" or similar
terms shall refer to the Amended Credit Agreement.
19.2 Counterparts. This First Amendment may be executed in any
number of counterparts and by the different parties on separate counterparts,
and each such counterpart shall be deemed to be an original but all such
counterparts shall together constitute one and the same First Amendment.
19.3 Governing Law. This First Amendment shall be a contract made
under and governed by the internal laws of the State of Illinois.
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19.4 Successors and Assigns. This First Amendment shall be binding
upon the Company, the Lenders and the Administrative Agent and their respective
successors and assigns, and shall inure to the benefit of the Company, the
Lenders and the Administrative Agent and the respective successors and assigns
of the Administrative Agent and the Lenders.
19.5 New Lenders. On the First Amendment Effective Date each of Bank
of America Illinois, The First National Bank of Boston, Bank of Montreal, The
Fuji Bank, Limited, ABN AMRO Bank N.V., The Bank of New York and Deutsche Bank
A.G. shall become a party to the Amended Credit Agreement as fully as if it
were named as a "Lender" thereunder, shall assume all of the rights and
obligations of a Lender under the Amended Credit Agreement, and shall be
governed by the terms and provisions of the Amended Credit Agreement.
19.6 Return of Old Notes. As promptly as practicable after the First
Amendment Effective Date, each Assigning Lender shall return to the Company the
notes previously issued to such Assigning Lender under the Credit Agreement
marked to show that such notes have been superseded.
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Delivered at Chicago, Illinois, as of the day and year first above
written.
ILLINOVA CORPORATION
By
----------------------------
Title
-------------------------
CIBC INC., as Administrative Agent
By
-----------------------------
Title
--------------------------
THE FIRST NATIONAL BANK OF CHICAGO
By
----------------------------
Title
--------------------------
BANK OF AMERICA ILLINOIS
By
-----------------------------
Title
--------------------------
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THE FIRST NATIONAL BANK OF BOSTON
By
-----------------------------
Title
--------------------------
BANK OF MONTREAL
By
-----------------------------
Title
--------------------------
THE FUJI BANK, LIMITED
By
-----------------------------
Title
--------------------------
ABN AMRO BANK N.V. CHICAGO BRANCH
By: ABN AMRO NORTH AMERICA, INC.,
its agent
By
-----------------------------
Title
--------------------------
THE BANK OF NEW YORK
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By
-----------------------------
Title
--------------------------
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DEUTSCHE BANK A.G.
By
-----------------------------
Title
--------------------------
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SCHEDULE I
COMMITMENTS AND PERCENTAGES
Lender Commitment Percentage
------ ---------- ----------
CIBC Inc. $ 23,000,000 15.333333333%
The First National Bank $ 23,000,000 15.333333333%
of Chicago
Bank of America Illinois $ 17,000,000 11.333333333%
The First National Bank $ 17,000,000 11.000000000%
of Boston
Bank of Montreal $ 17,000,000 11.000000000%
The Fuji Bank, Limited $ 17,000,000 11.333333333%
ABN AMRO Bank N.V. $ 12,000,000 8.000000000%
The Bank of New York $ 12,000,000 8.000000000%
Deutsche Bank A.G. $ 12,000,000 8.000000000%
------------ ------------
$150,000,000 100%
83
EXHIBIT A
FORM OF OPINION
