CREDIT AGREEMENT DATED AS OF June 13, 2006 AMONG PEOPLES ENERGY CORPORATION, THE FINANCIAL INSTITUTIONS PARTY HERETO, as Banks, BANK OF AMERICA, N.A., as Administrative Agent, JPMORGAN CHASE BANK, N.A., as Syndication Agent, ABN AMRO INCORPORATED, US...
EXHIBIT
10(a)
Execution
Version
DATED
AS OF
June 13,
2006
AMONG
PEOPLES
ENERGY CORPORATION,
THE
FINANCIAL INSTITUTIONS PARTY HERETO,
as
Banks,
BANK
OF AMERICA, N.A.,
as
Administrative Agent,
JPMORGAN
CHASE BANK, N.A.,
as
Syndication Agent,
ABN
AMRO INCORPORATED,
US
BANK NATIONAL ASSOCATION,
and
THE
BANK OF TOKYO-MITSUBISHI, LTD. CHICAGO BRANCH,
as
Co-Documentation Agents,
and
BANC
OF AMERICA SECURITIES LLC,
X.X.
XXXXXX SECURITIES INC.,
and
ABN
AMRO INCORPORATED,
as
Co-Lead Arrangers and Joint Bookrunners
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TABLE
OF
CONTENTS
Page
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SECTION
1. DEFINITIONS; INTERPRETATION.
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1
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Section
1.1 Definitions
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1
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Section
1.2 Interpretation
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7
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SECTION
2. THE REVOLVING CREDIT.
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7
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Section
2.1 The Loan Commitment, Increase Option, Extension
Option.
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7
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Section
2.2 Letters of Credit
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9
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Section
2.3 Applicable Interest Rates
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11
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Section
2.4 Minimum Borrowing Amounts
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13
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Section
2.5 Manner of Borrowing Loans and Designating Interest Rates
Applicable to Loans.
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13
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Section
2.6 Interest Periods
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15
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Section
2.7 Maturity of Loans
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15
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Section
2.8 Prepayments
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15
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Section
2.9 Default Rate.
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16
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Section
2.10 Evidence of Debt.
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16
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Section
2.11 Funding Indemnity
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17
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Section
2.12 Revolving Credit Commitment Terminations
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17
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Section
2.13 Regulation D Compensation
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17
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Section
2.14 Arbitrage Compensation
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18
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SECTION
3. FEES.
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18
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Section
3.1 Fees
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18
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Section
3.2 Replacement of Banks
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19
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SECTION
4. PLACE AND APPLICATION OF PAYMENTS.
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20
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Section
4.1 Place and Application of Payments
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20
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SECTION
5. REPRESENTATIONS AND WARRANTIES.
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20
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Section
5.1 Corporate Organization and Authority
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20
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Section
5.2 Corporate Authority and Validity of
Obligations
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20
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Section
5.3 Financial Statements
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21
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Section
5.4 Approvals
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21
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Section
5.5 ERISA
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21
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Section
5.6 Government Regulation
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21
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Section
5.7 Margin Stock; Proceeds
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21
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Section
5.8 Full Disclosure
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21
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SECTION
6. CONDITIONS PRECEDENT.
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22
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Section
6.1 Initial Credit Event
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22
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Section
6.2 All Credit Events
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23
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SECTION
7. COVENANTS.
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23
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Section
7.1 Corporate Existence
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23
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Section
7.2 ERISA
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23
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Section
7.3 Financial Reports and Other Information
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24
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Section
7.4 Regulation U; Proceeds
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25
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Section
7.5 Sales of Assets.
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25
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Section
7.6 Capital Ratio
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25
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Section
7.7 Compliance with Laws
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25
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Section
7.8 Mergers and Consolidations
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26
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SECTION
8. EVENTS OF DEFAULT AND REMEDIES.
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26
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Section
8.1 Events of Default
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26
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Section
8.2 Non-Bankruptcy Defaults
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27
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Section
8.3 Bankruptcy Defaults
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27
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Section
8.4 Expenses
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27
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SECTION
9. CHANGE IN CIRCUMSTANCES.
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28
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Section
9.1 Change of Law
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28
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Section
9.2 Unavailability of Deposits or Inability to Ascertain, or
Inadequacy of, LIBOR.
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28
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Section
9.3 Increased Cost and Reduced Return
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28
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Section
9.4 Lending Offices
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30
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Section
9.5 Discretion of Bank as to Manner of Funding
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30
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SECTION
10. THE ADMINISTRATIVE AGENT.
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30
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Section
10.1 Appointment and Authority
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30
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Section
10.2 Rights as a Bank
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31
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Section
10.3 Exculpatory Provisions
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31
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Section
10.4 Reliance by Administrative Agent.
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31
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Section
10.5 Delegation of Duties.
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32
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Section
10.6 Resignation of Administrative Agent.
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32
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Section
10.7 Non-Reliance on Administrative Agent and Other
Banks
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33
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Section
10.8 No Other Duties; Etc.
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33
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Section
10.9 Administrative Agent May File Proofs of
Claim.
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33
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SECTION
11. MISCELLANEOUS.
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34
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Section
11.1 Withholding Taxes
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34
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Section
11.2 No Waiver of Rights
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35
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Section
11.3 Non-Business Day
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35
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Section
11.4 Documentary Taxes
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35
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Section
11.5 Survival of Representations
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35
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Section
11.6 Survival of Indemnities
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35
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Section
11.7 Set-Off
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35
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Section
11.8 Notices; Effectiveness, Electronic
Communications.
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36
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Section
11.9 Counterparts
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38
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Section
11.10 Successors and Assigns
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38
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Section
11.11 [Intentionally Omitted]
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38
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Section
11.12 Assignments, Participations, Etc
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38
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Section
11.13 Amendments
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41
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Section
11.14 Headings
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42
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Section
11.15 Legal Fees, Other Costs and Indemnification
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42
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Section
11.16 [Reserved]
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42
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Section
11.17 Entire Agreement
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42
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Section
11.18 Construction
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42
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Section
11.19 Governing Law
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42
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Section
11.20 SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL
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42
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Section
11.21 Confidentiality
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42
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Section
11.22 Patriot Act
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42
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Section
11.23 Rights and Liabilities of Syndication Agent and
Arrangers
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43
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Section
11.24 No Advisory or Fiduciary Responsibility
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43
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SCHEDULES
1.1
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Interest
Rates and Fees
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2.1
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Revolving
Credit Commitment
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11.8
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Notices
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11.12
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Processing
and Recordation Fees
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EXHIBITS
Form
of
2.10
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Note
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6.1
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Opinion
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7.3
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Compliance
Certificate
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11.12
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Assignment
and Assumption
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CREDIT
AGREEMENT,
dated as
of June 13, 2006 among Peoples Energy Corporation, an Illinois corporation
(the
“Borrower”),
the
financial institutions from time to time party hereto (each a “Bank,”
and
collectively the “Banks”),
Bank
of America, N.A., in its capacity as administrative agent for the Banks
hereunder (in such capacity, the “Administrative Agent”),
and
JPMorgan Chase Bank, N.A., in its capacity as syndication agent for the Banks
hereunder (in such capacity, the “Syndication
Agent”).
WITNESSETH
THAT:
WHEREAS,
the
Borrower desires to obtain the several commitments of the Banks to make
available a 5-year revolving credit facility for loans and letters of credit
(the “Revolving
Credit”),
as
described herein; and
WHEREAS,
the
Banks are willing to extend such commitments subject to all of the terms and
conditions hereof and on the basis of the representations and warranties
hereinafter set forth.
NOW,
THEREFORE,
in
consideration of the recitals set forth above and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION
1. DEFINITIONS;
INTERPRETATION.
Section
1.1 Definitions.
The
following terms when used herein have the following meanings:
“Administrative Agent”
is
defined in the first paragraph of this Agreement and includes any successor
Administrative Agent appointed pursuant to Section 10.6
hereof.
“Administrative
Agent's Office”
means
the Administrative Agent's address and, as appropriate, account as set forth
on
Schedule 11.8 or such other address or account as the Administrative Agent
may
from time to time notify to the Borrower and the Banks.
“Administrative
Questionnaire”
means an
administrative questionnaire in a form supplied by the Administrative
Agent.
“Affiliate”
means,
as to any Person, any other Person which directly or indirectly controls, or
is
under common control with, or is controlled by, such Person. As used in this
definition, “control”
(including, with their correlative meanings, “controlled
by”
and
“under
common control with”)
means
possession, directly or indirectly, of power to direct or cause the direction
of
management or policies of a Person (whether through ownership of securities
or
partnership or other ownership interests, by contract or otherwise),
provided
that, in
any event for purposes of this definition: (i) any Person which owns directly
or
indirectly 5% or more of the securities having ordinary voting power for the
election of directors or other governing body of a corporation or 5% or more
of
the partnership or other ownership interests of any other Person (other than
as
a limited partner of such other Person) will be deemed to control such
corporation or other Person; and (ii) each director and executive officer of
the
Borrower or any Subsidiary shall be deemed an Affiliate of the Borrower and
each
Subsidiary.
“Agreement”
means
this Credit Agreement, including all Exhibits and Schedules hereto, as it
may be amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof.
1
“Applicable
Margin”
means,
at any time (i) with respect to Base Rate Loans, the Base Rate Margin and (ii)
with respect to LIBOR Loans, the LIBOR Margin.
“Application”
is
defined in Section 2.2(b) hereof.
“Approved
Fund”
means
any Fund that is administered or managed by (a) a Bank, (b) an Affiliate of
a
Bank or (c) an entity or an Affiliate of an entity that administers or manages
a
Bank.
“Arrangers”
means,
collectively, Banc of America Securities LLC and X.X. Xxxxxx Securities
Inc.
“Assignee
Group”
means
two or more Eligible Assignees that are Affiliates of one another or two or
more
Approved Funds managed by the same investment advisor.
“Assignment
and Assumption”
means an
assignment and assumption entered into by a Bank and an Eligible Assignee (with
the consent of any party whose consent is required by Section 11.12(b)),
and accepted by the Administrative Agent, in substantially the form of
Exhibit 11.12 or any other form approved by the Administrative
Agent.
“Authorized
Representative”
means
those persons shown on the list of employees provided by the Borrower pursuant
to Section 6.1(e) hereof, or on any such updated list provided by the
Borrower to the Administrative Agent, or any further or different employee
of
the Borrower so named by any officer of the Borrower in a written notice to
the
Administrative Agent.
“Bank”
is
defined in the first paragraph of this Agreement.
“Bank
of America”
means
Bank of America, N.A. and its successors.
“Base
Rate”
is
defined in Section 2.3(a) hereof.
“Base
Rate Loan”
means
a
Loan bearing interest prior to maturity at a rate specified in
Section 2.3(a) hereof.
“Base
Rate Margin”
means
the percentage set forth in Schedule 1.1 hereto corresponding to the then
applicable Credit Rating.
“BofA
Fee Letter”
means
that certain letter among the Administrative Agent, Banc
of
America Securities LLC and
the
Borrower dated May 22, 2006 pertaining to fees to be paid by the Borrower to
the
Administrative Agent for its sole account and benefit.
“Borrower”
is
defined in the first paragraph of this Agreement.
“Borrower
Materials”
has
the
meaning specified in Section 7.3.
“Borrowing”
means
the total of Loans of a single type advanced, continued for an additional
Interest Period, or converted from a different type into such type by the Banks
on a single date and for a single Interest Period. Borrowings of Loans are
made
and maintained ratably from each of the Banks according to their Percentages.
A
Borrowing is “advanced” on the day Banks advance funds comprising such Borrowing
to the Borrower, is “continued” on the date a new Interest Period for the same
type of Loans commences for such Borrowing, and is “converted” when such
Borrowing is changed from one type of Loan to the other, all as requested by
the
Borrower pursuant to Section 2.5(a).
2
“Business
Day”
means
any day other than a Saturday or Sunday on which Banks are not authorized or
required to close where the Administrative Agent’s Office is located and, if the
applicable Business Day relates to the borrowing or payment of a LIBOR Loan,
on
which banks are dealing in U.S. Dollars in the interbank market in London,
England.
“Capital”
means,
as of any date of determination thereof, without duplication, the sum of (a)
Consolidated Net Worth excluding accumulated other comprehensive income and
loss
plus
(b)
Consolidated Indebtedness.
“Capital
Lease”
means
at any date any lease of Property which, in accordance with GAAP, would be
required to be capitalized on the balance sheet of the lessee.
“Capital
Ratio”
means,
as of any date of determination thereof, the ratio, rounded downwards to two
decimal points, of (a) Consolidated Indebtedness to (b) Capital.
“Capitalized
Lease Obligations”
means,
for any Person, the amount of such Person’s liabilities under Capital Leases
determined at any date in accordance with GAAP.
“Code”
means
the Internal Revenue Code of 1986, as amended.
“Commitment”
means,
as to each Bank, the Revolving Credit Commitment of such Bank.
“Commitment
Fee Rate” means
the
percentage set forth on Schedule 1.1 hereto corresponding to the then
applicable Credit Rating.
“Compliance
Certificate”
means
a
certificate in the form of Exhibit 7.3 hereto.
“Consolidated
Indebtedness”
means,
as of any date of determination thereof, the aggregate consolidated Indebtedness
of the Borrower and it Subsidiaries, as determined in accordance with
GAAP.
“Consolidated Net
Worth”
means,
as of any date of determination thereof, the amount reflected as shareholders
equity upon a consolidated balance sheet of the Borrower and its Subsidiaries,
as determined in accordance with GAAP.
“Contractual
Obligation”
means,
as to any Person, any provision of any security issued by such Person or of
any
agreement, instrument or undertaking to which such Person is a party or by
which
it or any of its Property is bound.
“Controlled
Group”
means
all members of a controlled group of corporations and all trades and businesses
(whether or not incorporated) under common control that, together with the
Borrower or any of its Subsidiaries, are treated as a single employer under
Section 414 of the Code.
“Credit
Documents”
means
this Agreement, the Notes, the Fee Letters, the Master Letter of Credit
Agreement, the Applications and the Letters of Credit.
“Credit
Event”
means
the Borrowing of any Loan or the issuance of, or extension of the expiration
date or any increase in the amount of, any Letter of Credit.
3
“Credit
Rating”
means,
at any time, the long-term senior unsecured non-credit enhanced debt rating
of
the Borrower as determined by Standard & Poors’ Ratings Services and/or
Xxxxx’x Investors Service.
“Default”
means
any event or condition the occurrence of which would, with the passage of time
or the giving of notice, or both, constitute an Event of Default.
“Effective
Date”
means
June 13, 2006.
“Eligible
Assignee”
means
(a) a Bank, (b) an Affiliate of a Bank, and (c) any other Person (other than
a
natural person) approved by (i) the Administrative Agent, (ii) the Issuing
Bank(s) and (iii) unless an Event of Default has occurred and is continuing,
the
Borrower (each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, “Eligible Assignee” shall not
include the Borrower or any of the Borrower’s Affiliates or
Subsidiaries.
“ERISA”
is
defined in Section 5.5 hereof.
“Event
of Default”
means
any of the events or circumstances specified in Section 8.1
hereof.
“Existing
Credit Agreement”
means
the Borrower’s existing credit agreement by and among the Borrower, the
financial institutions party thereto and ABN AMRO Bank N.V., as Agent
thereunder, dated March 8, 2004, as amended, restated, supplemented or otherwise
modified prior to the Effective Date.
“Federal
Funds Rate”
means
the fluctuating interest rate per annum described in part (x) of
clause (ii) of the definition of Base Rate set forth in Section 2.3(a)
hereof.
“Fee
Letters”
means
the BofA Fee Letter and the Joint Fee Letter.
“Fund”
means
any
Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.
“GAAP”
means
generally accepted accounting principles as in effect in the United States
from
time to time, applied by the Borrower and its Subsidiaries on a basis consistent
with the preparation of the Borrower’s financial statements furnished to the
Banks as described in Section 5.3 hereof.
“Granting
Bank”
is
defined in Section 11.12(g) hereof.
“Guarantee”
means,
in respect of any Person, any obligation, contingent or otherwise, of such
Person directly or indirectly guaranteeing any Indebtedness of another Person,
including, without limitation, by means of an agreement to purchase or pay
(or
advance or supply funds for the purchase or payment of) such Indebtedness or
to
maintain financial covenants, or to assure the payment of such Indebtedness
by
an agreement to make payments in respect of goods or services regardless of
whether delivered, or otherwise, provided, that the term “Guarantee” shall not
include endorsements for deposit or collection in the ordinary course of
business; and such term when used as a verb shall have a correlative
meaning.
“Indebtedness”
means,
as to any Person, without duplication: (i) all obligations of such Person for
borrowed money or evidenced by bonds, debentures, notes or similar instruments;
(ii) all obligations of such Person for the deferred purchase price of property
or services (other than in respect of trade accounts payable arising in the
ordinary course of business, customer deposits, provisions for rate refunds
(if
any), deferred fuel expenses and obligations in respect of pensions and other
post-retirement benefits and employee welfare plans); (iii) all Capitalized
Lease Obligations of such Person; (iv) all Indebtedness of others secured by
a
Lien on any properties, assets or revenues of such Person (other than stock,
partnership interests or other equity interests of the Borrower or any
Subsidiaries in other entities) to the extent of the lesser of the value of
the
property subject to such Lien or the amount of such Indebtedness; (v) all
Indebtedness of others Guaranteed by such Person; and (vi) all obligations
of
such Person, contingent or otherwise, in respect of any letters or credit
(whether commercial or standby) or bankers’ acceptances.
4
“Information”
has
the
meaning specified in Section 11.21.
“Interest
Period”
is
defined in Section 2.6 hereof.
“Issuing
Banks” means:
(i) Bank of America, N.A. and (ii) any one other Bank designated by Borrower
from time to time by written notice to Administrative Agent, with the consent
of
such Bank; provided
that no
Bank may be an Issuing Bank with respect to a Letter of Credit issued after
the
date such Bank becomes a Refusing Bank pursuant to Section 2.1(c).
“Joint
Fee Letter”
means
that certain letter among the Administrative Agent, the Syndication Agent,
the
Arrangers and the Borrower dated May 22, 2006 pertaining to fees to be paid
by
the Borrower to the Administrative Agent for its sole account and
benefit.
“L/C
Documents” means
the
Letters of Credit, the Master Letter of Credit Agreement, any draft or other
document presented in connection with a drawing under a Letter of Credit, the
Applications and this Agreement.
“L/C
Fee Rate” means,
at
any time of determination, a percentage per annum equal to the LIBOR Margin
in
effect at such time.
“L/C
Obligations”
means
the aggregate undrawn face amounts of all outstanding Letters of Credit and
all
unpaid Reimbursement Obligations.
“Lending
Office”
is
defined in Section 9.4 hereof.
“Letter
of Credit”
is
defined in Section 2.2(a) hereof.
“LIBOR”
is
defined in Section 2.3(b) hereof.
“LIBOR
Loan”
means
a
Loan bearing interest prior to maturity at the rate specified in
Section 2.3(b) hereof.
“LIBOR
Margin”
means
the percentage set forth in Schedule 1.1 hereto beside the then applicable
Credit Rating.
“LIBOR
Reserve Percentage”
is
defined in Section 2.3(b) hereof.
“Lien”
means
any interest in Property securing an obligation owed to, or a claim by, a Person
other than the owner of the Property, whether such interest is based on the
common law, statute or contract, including, but not limited to, the security
interest lien arising from a mortgage, encumbrance, pledge, conditional sale,
security agreement or trust receipt, or a lease, consignment or bailment for
security purposes. For the purposes of this definition, a Person shall be deemed
to be the owner of any Property which it has acquired or holds subject to a
conditional sale agreement, Capital Lease or other arrangement pursuant to
which
title to the Property has been retained by or vested in some other Person for
security purposes, and such retention of title shall constitute a
“Lien.”
5
“Loan”
is
defined in Section 2.1(a) hereof and, as so defined, includes a Base Rate
Loan or LIBOR Loan, each of which is a “type” of Loan hereunder.
“Master
Letter of Credit Agreement”
is
defined in Section 2.2(a) hereof.
“Material
Adverse Effect”
means
a
material adverse effect on (i) the business, financial position or results
of
operations of the Borrower, (ii) the ability of the Borrower to perform its
obligations under the Credit Documents, (iii) the validity or enforceability
of
the obligations of the Borrower, (iv) the rights and remedies of the Banks
or
the Administrative Agent against the Borrower or (v) the timely payment of
the
principal of and interest on the Loans or other amounts payable by the Borrower
hereunder.
“Note”
is
defined in Section 2.10(a) hereof.
“Obligations”
means
all fees payable hereunder, all obligations of the Borrower to pay principal
or
interest on Loans and L/C Obligations, and all other payment obligations of
the
Borrower arising under or in relation to any Credit Document.
“Participant”
has the
meaning specified in Section 11.12(d).
“Percentage”
means,
for each Bank, the percentage of the Revolving Credit Commitments represented
by
such Bank’s Revolving Credit Commitment or, if the Revolving Credit Commitments
have been terminated, the percentage held by such Bank (including through
participation interests in L/C Obligations) of the aggregate principal amount
of
all outstanding Obligations.
“Person”
means
an individual, partnership, corporation, limited liability company, association,
trust, unincorporated organization or any other entity or organization,
including a government or any agency or political subdivision
thereof.
“Plan”
means
at any time an employee pension benefit plan covered by Title IV of ERISA
or subject to the minimum funding standards under Section 412 of the Code
that is either (i) maintained by a member of the Controlled Group or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding five plan years made
contributions.
“Platform”
has the
meaning specified in Section 7.3.
“PBGC”
is
defined in Section 5.5 hereof.
“Property”
means
any interest in any kind of property or asset, whether real, personal or mixed,
or tangible or intangible, whether now owned or hereafter acquired.
“Refusing
Bank”
is
defined in Section 2.1(c) hereof.
“Reimbursement
Obligation”
is
defined in Section 2.2(c) hereof.
6
“Related
Parties”
means,
with respect to any Person, such Person's Affiliates and the partners,
directors, officers, employees, agents and advisors of such Person and of such
Person's Affiliates.
“Required
Banks”
means,
as of the date of determination thereof, Banks holding more than 50% of the
Percentages.
“Revolving
Credit Commitment”
is
defined in Section 2.1(a) hereof.
“SEC”
means
the Securities and Exchange Commission.
“SPC”
is
defined in Section 11.12(g) hereof.
“Subsidiary”
means,
as to the Borrower, any corporation or other entity of which more than fifty
percent (50%) of the outstanding stock or comparable equity interests
having ordinary voting power for the election of the Board of Directors of
such
corporation or similar governing body in the case of a non-corporation
(irrespective of whether or not, at the time, stock or other equity interests
of
any other class or classes of such corporation or other entity shall have or
might have voting power by reason of the happening of any contingency) is at
the
time directly or indirectly owned by the Borrower or by one or more of its
Subsidiaries.
“Syndication
Agent”
is
defined in the first paragraph of this Agreement.
“Termination
Date”
means
the later of (a) June 13, 2011 and (b) if maturity is extended pursuant to
2.1(c), such extended maturity date as determined pursuant to such Section;
provided,
however,
that,
in each case, if such date is not a Business Day, the Termination Date shall
be
the next preceding Business Day.
“Unfunded
Vested Liabilities”
means,
with respect to any Plan at any time, the amount (if any) by which (i) the
present value of all vested non-forfeitable accrued benefits under such Plan
exceeds (ii) the fair market value of all Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plan, but only to the extent that such excess represents a potential liability
of a member of the Controlled Group to the PBGC or the Plan under Title IV
of ERISA.
“U.S.
Dollars”
and
“$”
each
means the lawful currency of the United States of America.
“Welfare
Plan”
means
a
“welfare plan”, as defined in Section 3(l) of ERISA.
Section
1.2 Interpretation.
The
foregoing definitions shall be equally applicable to both the singular and
plural forms of the terms defined. All references to times of day in this
Agreement shall be references to Eastern time (daylight or standard, as
applicable) unless otherwise specifically provided. 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 computation is required
to
be made for the purposes of this Agreement, the same shall be done in accordance
with GAAP, to the extent applicable, except where such principles are
inconsistent with the specific provisions of this Agreement.
SECTION
2. THE
REVOLVING CREDIT.
Section
2.1 The
Loan Commitment, Increase Option, Extension Option.
(a) The
Loan Commitment.
Subject
to the terms and conditions hereof, each Bank, by its acceptance hereof,
severally agrees to make a loan or loans (individually a “Loan”
and
collectively “Loans”)
to the
Borrower from time to time on a revolving basis in an aggregate outstanding
amount up to the amount of its revolving credit commitment set forth on Schedule
2.1 attached hereto (such amount, as increased or reduced pursuant to
Sections 2.1(b), 2.1(c) or 2.12 or changed as a result of one or more
assignments under Section 11.12, its “Revolving
Credit Commitment”
and,
cumulatively for all the Banks, the “Revolving
Credit Commitments”)
before
the Termination Date; provided
that the
sum of the aggregate amount of Loans and of L/C Obligations at any time
outstanding shall not exceed the Revolving Credit Commitments in effect at
such
time. Each Borrowing of Loans shall be made ratably from the Banks in proportion
to their respective Percentages. As provided in Section 2.5(a) hereof, the
Borrower may elect that each Borrowing of Loans be either Base Rate Loans or
LIBOR Loans. Loans may be repaid and the principal amount thereof re-borrowed
before the Termination Date, subject to all the terms and conditions hereof.
The
initial amount of Revolving Credit Commitments under this Agreement equals
FOUR
HUNDRED MILLION DOLLARS ($400,000,000).
7
(b) Increase
Option.
Notwithstanding Section 2.1(a) and so long as no Default or Event of Default
exists, Borrower may, upon written election delivered to Administrative Agent,
permanently increase the aggregate Revolving Credit Commitments by up to
$100,000,000 to FIVE HUNDRED MILLION DOLLARS ($500,000,000) (less the amount
of
any previous reductions of the Revolving Credit Commitment pursuant to Sections
2.1(c) or 2.12); provided
that
each such increase must be in a minimum amount of $25,000,000 and in integral
multiples of $1,000,000 in excess thereof, by (i) increasing the Revolving
Credit Commitment of one or more Banks which have agreed to such increase and/or
(ii) adding one or more commercial banks or other Persons as a Bank hereto
(each
an “Additional
Bank”)
with a
Revolving Credit Commitment in an amount agreed to by any such Additional Bank;
provided
that no
Additional Bank shall be added as a party hereto without the written consent
of
the Administrative Agent and the Issuing Banks (which shall not be unreasonably
withheld) or if a Default or an Event of Default exists. Any increase in the
aggregate Revolving Credit Commitment pursuant to this clause (b) shall be
effective three Business Days after the date on which the Administrative Agent
has received and accepted the applicable documentation memorializing and
evidencing such increases by the applicable Banks. The Administrative Agent
shall promptly notify the Borrower and the Banks of any increase in the amount
of the aggregate Revolving Credit Commitment pursuant to this Section and
of the Revolving Credit Commitment of each Bank after giving effect thereto.
The
Borrower acknowledges that, in order to maintain Loans in accordance with each
Bank’s pro-rata share of all outstanding Borrowings prior to any increase in the
aggregate Revolving Credit Commitment pursuant to this Section, a reallocation
of the Revolving Credit Commitments as a result of a non-pro-rata increase
in
the aggregate Revolving Credit Commitment may require prepayment of all or
portions of certain Borrowings on the date of such increase (and any such
prepayment shall be subject to the provisions of Section 2.11).
(c) Extension
Option.
(i)
Not
more than 60 days and not less than 30 days prior to each annual anniversary
of
the Effective Date, the Borrower may, in each case, request in writing that
the
Banks extend the Termination Date for an additional one year (and the
Administrative Agent shall promptly give the Banks notice of any such request);
provided
that the
Borrower may not make a request that would cause the Termination Date to extend
to a date more than eight years from the Effective Date. Each Bank shall provide
the Administrative Agent, not more than 15 days subsequent to any such request
by the Borrower, with written notice regarding whether it agrees to extend
the
then current Termination Date. Each decision by a Bank shall be in its sole
discretion and failure by a Bank to give timely written notice hereunder shall
be deemed a decision by such Bank not to extend the Termination Date. If all
of
the Banks timely agree in writing to extend the Termination Date, then the
Termination Date shall be extended for an additional one year pursuant to a
duly
executed written amendment to this Credit Agreement.
8
(ii) If
any
Bank fails to agree to extend the Termination Date (a “Refusing Bank”), then the
Borrower may, on or before the applicable anniversary date, request, at its
own
discretion and its own expense, any of the Refusing Banks (and each Refusing
Bank shall be required to transfer and assign upon such request) to transfer
and
assign in whole (but not in part), without recourse (in accordance with and
subject to the terms of Section 11.12), all of its interests, rights and
obligations under this Credit Agreement to an Eligible Assignee or Eligible
Assignees (which may be one or more existing Banks if any existing Bank accepts
such assignment); provided that (A) such assignment or assignments shall not
conflict with any law, rule, regulation or order of any court or other
governmental authority, (B) the Borrower or such Eligible Assignee or Eligible
Assignees shall pay to the Refusing Banks in immediately available funds the
principal of and interest accrued to the date of such payment on the portion
of
the Loans hereunder held by such Refusing Banks and all other amounts owed
to
such Refusing Banks hereunder, as well as any transfer fee owing to the
Administrative Agent under Section 11.12 and (C) such transfer and assignment
must occur on or prior to the applicable anniversary date.
(iii) If
there
exists any Refusing Bank, and such Refusing Bank is not required by the Borrower
to transfer and assign its interests prior to the applicable anniversary date
as
set forth in clause (ii) above, then the Borrower may, on or before the
applicable anniversary date, as long as the Required Banks consent to the
extension of the Termination Date, notify the Administrative Agent in writing
that it wishes to (and all Banks who are not Refusing Banks shall agree to)
extend the Termination Date with a Revolving Credit Commitment (for such
additional year) equal to the Commitments of those Banks that are not Refusing
Banks for such additional year. If the Borrower opts to extend the Termination
Date pursuant to this clause (iii), then the Borrower shall, on the Termination
Date in effect immediately prior to such extension, pay to the Refusing Banks
in
immediately available funds the principal of and interest accrued on the portion
of the Loans hereunder held by the Refusing Banks, as well as all other amounts
due and payable to the Refusing Banks (including, without limitation, any loss,
expense or liability incurred by reason of the liquidation or reemployment
of
deposits or other funds required by the Bank to fund its Eurodollar Loans),
on
such date. Upon
such
payment, (A) the Commitments of each such Refusing Bank shall terminate, (B)
each such Refusing Bank shall cease to be a Bank hereunder and (C) the Revolving
Credit Commitment shall be reduced by an amount equal to the aggregate
Commitments of each such Refusing Bank.
Section
2.2 Letters
of Credit.
(a) General
Terms.
Subject
to the terms and conditions hereof, as part of the Revolving Credit, the Issuing
Banks shall issue standby letters of credit denominated in U.S. Dollars (each
a
“Letter
of Credit”)
for
Borrower’s account; provided
that the
aggregate amount of L/C Obligations outstanding at any time shall not exceed
the
lesser of (i) the L/C Sublimit, and (ii) the difference between the Commitments
in effect at such time and the aggregate amount of Loans then outstanding.
Each
Letter of Credit shall be a standby or documentary letter of credit issued
to
support the obligations (including pension or insurance obligations), contingent
or otherwise, of the Borrower. Each Letter of Credit shall have a stated term
not to exceed one year. Each Letter of Credit shall be issued by the applicable
Issuing Bank, but each Bank shall be obligated to purchase an undivided
percentage participation interest of such Letter of Credit from the applicable
Issuing Bank pursuant to Section 2.2(d) hereof in an amount equal to its
Percentage of the amount of each drawing thereunder and, accordingly, the
undrawn face amount of each Letter of Credit shall constitute usage of the
Commitment of each Bank pro
rata in
accordance with each Bank’s Percentage. The Borrower shall execute a master
letter of credit agreement with each Issuing Bank (collectively, the
“Master
Letter of Credit Agreement”)
which
shall contain certain terms applicable to the Letters of Credit. To the extent
any provision of the Master Letter of Credit Agreement is inconsistent with
the
terms of this Agreement, the terms of this Agreement shall control. No Issuing
Bank shall have an obligation pursuant to the Credit Documents to issue any
Letter of Credit if, after giving effect to the issuance of such Letter of
Credit, the aggregate face amount of all Letters of Credit then outstanding
would exceed $25,000,000 (the “L/C
Sublimit”).
(b) Applications.
At any
time before thirty (30) days prior to the Termination Date, an Issuing Bank
shall, at the request of Borrower given to such Issuing Bank at least
three (3) Business Days prior to the requested date of issuance, issue one
or more Letters of Credit, in a form satisfactory to such Issuing Bank, with
terms of up to one year each, in an aggregate face amount as set forth above,
upon the receipt of a duly executed application for the relevant Letter of
Credit in the form customarily prescribed by such Issuing Bank for the type
of
Letter of Credit, requested (each an “Application”).
Notwithstanding anything contained in any Application to the contrary (i)
Borrower’s obligation to pay fees in connection with each Letter of Credit shall
be as exclusively set forth in Section 3.1(b) hereof, and (ii) if the
applicable Issuing Bank is not timely reimbursed for the amount of any drawing
under a Letter of Credit on the date such drawing is paid or on the next
following Business Day (it being understood that a drawing which is reimbursed
pursuant to, and in accordance with, the last sentence of Section 2.5(c)
shall be deemed to have been timely reimbursed), Borrower’s obligation to
reimburse the applicable Issuing Bank for the amount of such drawing shall
bear
interest (which Borrower hereby promises to pay on demand) from and after the
date such drawing is paid at a rate per annum equal to the sum of two
percent (2%) plus the Base Rate Margin plus the Base Rate from time to time
in effect. The applicable Issuing Bank will promptly notify the Banks of each
issuance by it of a Letter of Credit and any amendment or extension of a Letter
of Credit. Each Issuing Bank agrees to issue amendments to any Letters of Credit
issued by it increasing the amount, or extending the expiration date, thereof
at
the request of Borrower subject to the conditions set forth herein (including
the conditions set forth in Section 6.2 and the other terms of this
Section 2.2). Without limiting the generality of the foregoing, an Issuing
Bank’s obligation to issue, amend or extend the expiration date of a Letter of
Credit is subject to the conditions set forth herein (including the conditions
set forth in Section 6.2 and the other terms of this Section 2.2) and
an Issuing Bank will not issue, amend or extend the expiration date of any
Letter of Credit if any Bank notifies such Issuing Bank of any failure to
satisfy or otherwise comply with such conditions and terms and directs such
Issuing Bank not to take such action. In the event any Letter(s) of Credit
are
outstanding at the time that Borrower is required to prepay or repay the
Obligations, Borrower shall (A) cause such Letter(s) of Credit to be surrendered
and delivered to the Issuing Bank for cancellation, (B) cause a financial
institution acceptable to the Issuing Bank in its sole discretion to issue,
for
the benefit of the Issuing Bank, a sight draft letter of credit in amount,
form
and substance acceptable to the Issuing Bank in its sole discretion in order
to
backstop the Letter(s) of Credit, or (C) (1) deposit with the Issuing Bank,
cash
in an amount equal to one hundred and five percent (105%) of the aggregate
L/C Obligations to be available to Issuing Bank to reimburse payments of drafts
drawn under such Letter(s) of Credit and pay any fees and expenses related
thereto and (2) prepay the fee payable with respect to such Letters of Credit
for the full remaining terms of such Letters of Credit. Upon termination of
any
such Letter of Credit, the unearned portion of such prepaid fee attributable
to
such Letter of Credit shall be refunded to Borrower, together with the sight
draft letters of credit described in clause (B) and the deposit described
in the preceding clause (C)(1) to the extent not previously applied by the
Issuing Bank in the manner described herein.
9
(c) The
Reimbursement Obligations.
Subject
to Section 2.2(b) hereof, the obligation of Borrower to reimburse the
applicable Issuing Bank for all drawings under a Letter of Credit (a
“Reimbursement
Obligation”)
shall
be governed, to the extent not inconsistent with this Agreement, by the Master
Letter of Credit Agreement and the Application related to such Letter of Credit,
except that reimbursement of each drawing shall be made in immediately available
funds at the applicable Issuing Bank’s principal office as set forth on Schedule
11.8 by no later than 1:30 p.m. (Eastern time) on the date when such
drawing is paid or, if such drawing was paid after 12:30 p.m. (Eastern
time), by 11:30 a.m. (Eastern time) the next day. If Borrower does not make
any such reimbursement payment on the date due (whether through a deemed request
for a Base Rate Loan pursuant to Section 2.5(c) or otherwise) and the Banks
fund their participations therein in the manner set forth in Section 2.2(d)
below, then all payments thereafter received by an Issuing Bank in discharge
of
any of the relevant Reimbursement Obligations shall be distributed in accordance
with Section 2.2(d) below. An Issuing Bank shall notify Borrower promptly
of its intent to pay, or payment of, a drawing under a Letter of
Credit.
(d) The
Participating Interests.
Each
Bank, by its acceptance hereof, severally agrees to purchase from each Issuing
Bank, and each Issuing Bank hereby agrees to sell to each such Bank, an
undivided percentage participating interest (a “Participating
Interest”),
to the
extent of its Percentage, in each Letter of Credit issued by, and each
Reimbursement Obligation owed to, such Issuing Bank. Upon any failure by
Borrower to pay any Reimbursement Obligation at the time required on the date
the related drawing is paid, as set forth in Section 2.2(c) above, or if an
Issuing Bank is required at any time to return to Borrower or to a trustee,
receiver, liquidator, custodian or other Person any portion of any payment
of
any Reimbursement Obligation, each Bank shall, not later than the Business
Day
it receives a demand from such Issuing Bank to such effect, if such demand
is
received before 2:00 p.m. (Eastern time), or not later than the following
Business Day, if such demand is received after such time, pay to such Issuing
Bank an amount equal to its Percentage of such unpaid or recaptured
Reimbursement Obligation together with interest on such amount accrued from
the
date the related payment was made by such Issuing Bank to the date of such
payment by such Bank a rate per annum equal to (i) from the date the related
payment was made by such Issuing Bank to the date two (2) Business Days
after payment by such Bank is due hereunder, the Federal Funds Rate for each
such day and (ii) from the date two (2) Business Days after the date such
payment is due from such Bank to the date such payment is made by such Bank,
the
Base Rate in effect for each such day. Each such Bank shall thereafter be
entitled to receive its Percentage of each payment received in respect of the
relevant Reimbursement Obligation and of interest paid thereon, with the
applicable Issuing Bank retaining its Percentage as a Bank
hereunder.
The
several obligations of the Banks to the Issuing Banks under this
Section 2.2 shall be absolute, irrevocable and unconditional under any and
all circumstances whatsoever and shall not be subject to any set-off,
counterclaim or defense to payment which any Bank may have or have had against
Borrower, the Administrative Agent, the Issuing Banks, any Bank or any other
Person whatsoever. Without limiting the generality of the foregoing, such
obligations shall not be affected by any Default or Event of Default or by
any
reduction, increase or termination of any Commitment of any Bank, and each
payment by a Bank under this Section 2.2 shall be made without any offset,
abatement, withholding or reduction whatsoever. The Issuing Banks and the
Administrative Agent shall be entitled to offset amounts received for the
account of a Bank under the Credit Documents against unpaid amounts due from
such Bank to the applicable Issuing Bank or the Administrative Agent, as
applicable, hereunder (whether as fundings of participations, indemnities or
otherwise).
10
(e) Indemnification.
The
Banks shall, to the extent of their respective Percentages, indemnify each
Issuing Bank (to the extent not reimbursed by Borrower) against any cost,
expense (including reasonable counsel fees and disbursements), claim, demand,
action, loss or liability (except such as result from such Issuing Bank’s gross
negligence or willful misconduct) that an Issuing Bank may suffer or incur
in
connection with any Letter of Credit issued by it. The Issuing Banks shall
be
entitled to all of the rights and protections afforded the Administrative Agent
under Section 10 hereof. The obligations of the Banks under this
Section 2.2(e) and all other parts of this Section 2.2 shall survive
termination of this Agreement and of all other L/C Documents.
(f) Issuing
Banks.
Each
Bank hereby appoints Bank of America, N.A. and each other Bank from time to
time
designated by Borrower as an Issuing Bank hereunder and hereby authorizes each
such Issuing Bank to take such action as an Issuing Bank on its behalf and
to
exercise such powers under the Credit Documents as are delegated to the Issuing
Banks by the terms thereof, together with such powers as are reasonably
incidental thereto. The relationship between each of the Issuing Banks and
the
Banks is and shall be that of agent and principal only, and nothing contained
in
this Agreement or any other Credit Document shall be construed to constitute
an
Issuing Bank as a trustee or fiduciary for any Bank or the
Borrower.
Section
2.3 Applicable
Interest Rates.
(a) Base
Rate Loans.
Each
Base Rate Loan made or maintained by a Bank shall bear interest during each
Interest Period it is outstanding (computed (x) at all times the Base Rate
is
based on the rate described in clause (i) of the definition thereof, on the
basis of a year of 365 or 366 days, as applicable, and actual days elapsed
or
(y) at all times the Base Rate is based on the rate described in
clause (ii) of the definition thereof, on the basis of a year of 360 days
and actual days elapsed) on the unpaid principal amount thereof from the date
such Loan is advanced, continued or created by conversion from a LIBOR Loan
until maturity (whether by acceleration or otherwise) at a rate per annum equal
to the sum of the Applicable Margin plus the Base Rate from time to time in
effect, payable on the last day of its Interest Period and at maturity (whether
by acceleration or otherwise).
“Base
Rate”
means
for any day a fluctuating rate per annum equal to the greater of:
(i) the
rate
of interest in effect for such day as publicly announced from time to time
by
Bank of America as its “prime rate” (The “prime rate” is a rate set by Bank of
America based upon various factors including Bank of America’s costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Bank of America shall
take effect at the opening of business on the day specified in the public
announcement of such change); and
(ii) the
sum
of (A) the rate per annum equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day;
provided
that (x)
if such day is not a Business Day, the Federal Funds Rate for such day shall
be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (y) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for
such
day shall be the average rate (rounded upward, if necessary, to a whole multiple
of 1/100 of 1%) charged to Bank of America on such day on such transactions
as
determined by the Administrative Agent, plus (B) one-half of one
percent (0.50%).
11
(b) LIBOR
Loans.
Each
LIBOR Loan made or maintained by a Bank shall bear interest during each Interest
Period it is outstanding (computed on the basis of a year of 360 days and actual
days elapsed) on the unpaid principal amount thereof from the date such Loan
is
advanced, continued, or created by conversion from a Base Rate Loan until
maturity (whether by acceleration or otherwise) at a rate per annum equal to
the
sum of the Applicable Margin plus the LIBOR Rate applicable for such Interest
Period, payable on the last day of the Interest Period and at maturity (whether
by acceleration or otherwise), and, if the applicable Interest Period is longer
than three months, on each day occurring every three months after the
commencement of such Interest Period.
“LIBOR
Rate”
means,
for any Interest Period with respect to a LIBOR Loan, the rate per annum equal
to the British Bankers Association LIBOR Rate (“BBA
LIBOR”),
as
published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time
to
time) at approximately 11:00 a.m., London time, two Business Days prior to
the
commencement of such Interest Period, for Dollar deposits (for delivery on
the
first day of such Interest Period) with a term equivalent to such Interest
Period. If such rate is not available at such time for any reason, then the
“LIBOR Rate” for such Interest Period shall be the rate per annum determined by
the Administrative Agent to be the rate at which deposits in U.S. Dollars for
delivery on the first day of such Interest Period in same day funds in the
approximate amount of the LIBOR Loan being made, continued or converted by
Bank
of America and with a term equivalent to such Interest Period would be offered
by Bank of America’s London Branch to major banks in the London interbank
eurodollar market at their request at approximately 11:00 a.m. (London time)
two
Business Days prior to the commencement of such Interest Period..
“LIBOR
Reserve Percentage”
means
for any Borrowing of LIBOR Loans from any Bank, the daily average for the
applicable Interest Period of the actual effective rate, expressed as a decimal,
at which reserves (including, without limitation, any supplemental, marginal
and
emergency reserves) are maintained by such Bank during such Interest Period
pursuant to Regulation D of the Board of Governors of the Federal Reserve
System (or any successor) on “LIBOR
liabilities”,
as
defined in such Board’s Regulation D (or in respect of any other category
of liabilities that includes deposits by reference to which the interest rate
on
LIBOR Loans is determined or any category of extensions of credit or other
assets that include loans by non-United States offices of any Bank to United
States residents), subject to any amendments of such reserve requirement by
such
Board or its successor, taking into account any transitional adjustments
thereto. For purposes of this definition, the LIBOR Loans shall be deemed to
be
“LIBOR
liabilities”
as
defined in Regulation D without benefit or credit for any prorations,
exemptions or offsets under Regulation D.
(c) Rate
Determinations.
The
Administrative Agent shall determine each interest rate applicable to
Obligations and the amount of all Obligations, and a determination thereof
by
the Administrative Agent shall be conclusive and binding except in the case
of
manifest error.
12
Section
2.4 Minimum
Borrowing Amounts.
Each
Borrowing of Base Rate Loans shall be in an amount not less than $1,000,000
and
in integral multiples of $500,000. Each Borrowing of LIBOR Loans shall be in
an
amount not less than $2,000,000 and in integral multiples of $1,000,000;
provided
that a
Borrowing of Base Rate Loans applied to pay a Reimbursement Obligation pursuant
to Section 2.5(c) hereof shall be in an amount equal to such Reimbursement
Obligation.
Section
2.5 Manner
of Borrowing Loans and Designating Interest Rates Applicable to
Loans.
(a) Notice
to the Administrative Agent.
The
Borrower shall give notice to the Administrative Agent by no later than
11:00 a.m. (Eastern time) (i) at least two (2) Business Days before
the date on which the Borrower requests the Banks to advance a Borrowing of
LIBOR Loans and (ii) at least one (1) Business Day before the date on which
the Borrower requests the Banks to advance a Borrowing of Base Rate Loans.
The
Loans included in each Borrowing shall bear interest initially at the type
of
rate specified in such notice of a new Borrowing. Thereafter, the Borrower
may
from time to time elect to change or continue the type of interest rate borne
by
each Borrowing or, subject to Section 2.4’s minimum amount requirement for
each outstanding Borrowing, a portion thereof, as follows: (i) if such Borrowing
is of LIBOR Loans, on the last day of the Interest Period applicable thereto,
the Borrower may continue part or all of such Borrowing as LIBOR Loans for
an
Interest Period or Interest Periods specified by the Borrower or convert part
or
all of such Borrowing into Base Rate Loans, (ii) if such Borrowing is of Base
Rate Loans, on any Business Day, the Borrower may convert all or part of such
Borrowing into LIBOR Loans for an Interest Period or Interest Periods specified
by the Borrower. The Borrower shall give all such notices requesting the
advance, continuation, or conversion of a Borrowing to the Administrative Agent
by telephone or facsimile (which notice shall be irrevocable once given and,
if
by telephone, shall be promptly confirmed in writing). Notices of the
continuation of a Borrowing of LIBOR Loans for an additional Interest Period
or
of the conversion of part or all of a Borrowing of LIBOR Loans into Base Rate
Loans or of Base Rate Loans into LIBOR Loans must be given by no later than
11:00 a.m. (Eastern time) at least three (3) Business Days before the
date of the requested continuation or conversion. All such notices concerning
the advance, continuation, or conversion of a Borrowing shall specify the date
of the requested advance, continuation or conversion of a Borrowing (which
shall
be a Business Day), the amount of the requested Borrowing to be advanced,
continued, or converted, the type of Loans to comprise such new, continued
or
converted Borrowing and, if such Borrowing is to be comprised of LIBOR Loans,
the Interest Period applicable thereto. The Borrower agrees that the
Administrative Agent may rely on any such telephonic or facsimile notice given
by any person it in good faith believes is an Authorized Representative without
the necessity of independent investigation, and in the event any such notice
by
telephone conflicts with any written confirmation, such telephonic notice shall
govern if the Administrative Agent has acted in reliance thereon. There may
be
no more than fifteen different Interest Periods in effect at any one time;
provided
that for
purposes of determining the number of Interest Periods in effect at any one
time, all Base Rate Loans shall be deemed to have one and the same Interest
Period.
(b) Notice
to the Banks.
The
Administrative Agent shall give prompt telephonic or facsimile notice to each
Bank of any notice from the Borrower received pursuant to Section 2.5(a)
above. The Administrative Agent shall give notice to the Borrower and each
Bank
by like means of the interest rate applicable to each Borrowing of LIBOR
Loans.
13
(c) Borrower’s
Failure to Notify.
Any
outstanding Borrowing of Base Rate Loans shall, subject to Section 6.2
hereof, automatically be continued for an additional Interest Period on the
last
day of its then current Interest Period as a Base Rate Loan unless the Borrower
has notified the Administrative Agent within the period required by
Section 2.5(a) that it intends to convert such Borrowing into a Borrowing
of LIBOR Loans or notifies the Administrative Agent within the period required
by Section 2.8(a) that it intends to prepay such Borrowing. If the Borrower
fails to give notice pursuant to Section 2.5(a) above of the continuation
or conversion of any outstanding principal amount of a Borrowing of LIBOR Loans
before the last day of its then current Interest Period within the period
required by Section 2.5(a) and has not notified the Administrative Agent
within the period required by Section 2.8(a) that it intends to prepay such
Borrowing, such Borrowing shall automatically be converted into a Borrowing
of
Base Rate Loans, subject to Section 6.2 hereof. The Administrative Agent
shall promptly notify the Banks of the Borrower’s failure to so give a notice
under Section 2.5(a). In the event Borrower fails to give notice pursuant
to Section 2.5(a) above of a Borrowing equal to the amount of a
Reimbursement Obligation and has not notified the Administrative Agent by 12:00
noon (Eastern time) on the day such Reimbursement Obligation becomes due that
it
intends to repay such Reimbursement Obligation through funds not borrowed under
this Agreement, Borrower shall be deemed to have requested a Borrowing of Base
Rate Loans on such day in the amount of the Reimbursement Obligation then due,
subject to Section 6.2 hereof, which Borrowing shall be applied to pay the
Reimbursement Obligation then due.
(d) Disbursement
of Loans.
Not
later than 12:00 noon (Eastern time) on the date of any requested advance
of a new Borrowing of LIBOR Loans, and not later than 1:00 p.m. (Eastern time)
on the date of any requested advance of a new Borrowing of Base Rate Loans,
subject to Section 6 hereof, each Bank shall make available its Loan
comprising part of such Borrowing in funds immediately available at the
Administrative Agent Office. The Administrative Agent shall make available
to
the Borrower Loans at the Administrative Agent’s Office or such other office as
the Administrative Agent has previously agreed in writing to with the Borrower,
in each case in the type of funds received by the Administrative Agent from
the
Banks.
(e) Administrative
Agent Reliance on Bank Funding.
Unless
the Administrative Agent shall have been notified by a Bank before the date
on
which such Bank is scheduled to make payment to the Administrative Agent of
the
proceeds of a Loan (which notice shall be effective upon receipt) that such
Bank
does not intend to make such payment, the Administrative Agent may assume that
such Bank has made such payment when due and the Administrative Agent may in
reliance upon such assumption (but shall not be required to) make available
to
the Borrower the proceeds of the Loan to be made by such Bank and, if any Bank
has not in fact made such payment to the Administrative Agent, such Bank shall,
on demand, pay to the Administrative Agent the amount made available to the
Borrower attributable to such Bank together with interest thereon in respect
of
each day during the period commencing on the date such amount was made available
to the Borrower and ending on (but excluding) the date such Bank pays such
amount to the Administrative Agent at a rate per annum equal to the greater
of
the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation,
plus
any administrative, processing or similar fees customarily charged by the
Administrative Agent in connection with the foregoing.
If such
amount is not received from such Bank by the Administrative Agent immediately
upon demand, the Borrower will, on demand, repay to the Administrative Agent
the
proceeds of the Loan attributable to such Bank with interest thereon at a rate
per annum equal to the interest rate applicable to the relevant Loan;
provided
that
such a repayment by the Borrower shall not be subject to Section 2.11
hereof.
14
Section
2.6 Interest
Periods.
As
provided in Section 2.5(a) hereof, at the time of each request to advance,
continue, or create by conversion a Borrowing of LIBOR Loans, the Borrower
shall
select an Interest Period applicable to such Loans from among the available
options. The term “Interest
Period”
means
the period commencing on the date a Borrowing of Loans is advanced, continued,
or created by conversion and ending: (a) in the case of Base Rate Loans, on
the
last Business Day of the calendar quarter in which such Borrowing is advanced,
continued, or created by conversion (or on the last day of the following
calendar quarter if such Loan is advanced, continued or created by conversion
on
the last Business Day of a calendar quarter), and (b) in the case of LIBOR
Loans, 1, 2, 3, or 6 months thereafter; provided,
however,
that:
(a) any
Interest Period for a Borrowing of Base Rate Loans that otherwise would end
after the Termination Date shall end on the Termination Date;
(b) for
any
Borrowing of LIBOR Loans, the Borrower may not select an Interest Period that
extends beyond the Termination Date;
(c) whenever
the last day of any Interest Period would otherwise be a day that is not a
Business Day, the last day of such Interest Period shall be extended to the
next
succeeding Business Day; provided
that, if
such extension would cause the last day of an Interest Period for a Borrowing
of
LIBOR Loans to occur in the following calendar month, the last day of such
Interest Period shall be the immediately preceding Business Day;
and
(d) for
purposes of determining an Interest Period for a Borrowing of LIBOR Loans,
a
month means a period starting on one day in a calendar month and ending on
the
numerically corresponding day in the next calendar month; provided,
however,
that if
there is no numerically corresponding day in the month in which such an Interest
Period is to end or if such an Interest Period begins on the last Business
Day
of a calendar month, then such Interest Period shall end on the last Business
Day of the calendar month in which such Interest Period is to end.
Section
2.7 Maturity
of Loans.
Subject
to the terms of Section 2.1(c) and unless an earlier maturity is provided for
hereunder (whether by acceleration or otherwise), each Loan shall mature and
become due and payable by the Borrower on the Termination Date.
Section
2.8 Prepayments.
(a) The
Borrower may prepay without premium or penalty and in whole or in part (but,
if
in part, then: (i) if such Borrowing is of Base Rate Loans, in an amount not
less than $1,000,000 and integral multiples of $500,000 in excess thereof,
(ii)
if such Borrowing is of LIBOR Loans, in an amount not less than $2,000,000
and
integral multiples of $1,000,000 in excess thereof and (iii) in an amount such
that the minimum amount required for a Borrowing pursuant to Section 2.4
hereof remains outstanding) any Borrowing of LIBOR Loans upon three Business
Days’ prior notice to the Administrative Agent or, in the case of a Borrowing of
Base Rate Loans, notice delivered to the Administrative Agent no later than
11:00 a.m. (Eastern time) on the date of prepayment, such prepayment to be
made by the payment of the principal amount to be prepaid and accrued interest
thereon to the date fixed for prepayment. In the case of LIBOR Loans, any
amounts owing under Section 2.11 hereof as a result of such prepayment
shall be paid contemporaneously with such prepayment. The Administrative Agent
will promptly advise each Bank of any such prepayment notice it receives from
the Borrower. Any amount paid or prepaid before the Termination Date may,
subject to the terms and conditions of this Agreement, be borrowed, repaid
and
borrowed again.
15
(b) At
any
time that the Borrower becomes aware, or should have become aware (pursuant
to
Borrower’s ordinary business practices) that the aggregate amount of outstanding
Loans and L/C Obligations shall at any time for any reason exceed the Revolving
Credit Commitments then in effect, the Borrower shall, immediately notify the
Administrative Agent of this determination. Within two (2) Business Days of
the delivery of the notice described in the preceding sentence, the Borrower
shall, without further notice or demand, pay the amount of such excess to the
Administrative Agent for the ratable benefit of the Banks as a prepayment of
the
Loans and, if necessary, a cash collateralization of the Letters of Credit.
Each
such prepayment shall be accompanied by a payment of all accrued and unpaid
interest on the Loans prepaid and shall be subject to
Section 2.11.
Section
2.9 Default
Rate.
If any
payment of principal on any Loan or other Obligation is not made when due
(whether by acceleration or otherwise), such Loan shall bear interest (computed
on the basis of a year of 360 days and actual days elapsed or, if based on
the
rate described in clause (i) of the definition of Base Rate, on the basis
of a year of 365 or 366 days, as applicable, and the actual number of days
elapsed) from the date such payment was due until paid in full, payable on
demand, at a rate per annum equal to:
(a) for
any
Base Rate Loan or Obligation other than a LIBOR Loan, the sum of two
percent (2%) plus the Applicable Margin for Base Rate Loans plus the Base
Rate from time to time in effect; and
(b) for
any
LIBOR Loan, the sum of two percent (2%) plus the rate of interest in effect
thereon at the time of such default until the end of the Interest Period
applicable thereto and, thereafter, at a rate per annum equal to the sum of
two
percent (2%) plus the Applicable Margin plus the Base Rate from time to
time in effect.
Section
2.10 Evidence
of Debt.
(a) Each
Bank
shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Bank resulting from each
Loan owing to such Bank from time to time, including the amounts of principal
and interest payable and paid to such Bank from time to time hereunder in
respect of Loans. The Borrower agrees that upon notice by any Bank to the
Borrower (with a copy of such notice to the Administrative Agent) to the effect
that a Note is required or appropriate in order for such Bank to evidence
(whether for purposes of pledge, enforcement or otherwise) the Loans owing
to,
or to be made by, such Bank under the Credit Documents, the Borrower shall
promptly execute and deliver to such Bank a promissory note in the form of
Exhibit 2.10 hereto (each such promissory note is hereinafter referred to
as a “Note”
and
collectively such promissory notes are referred to as the “Notes”).
(b) The
Register maintained by the Administrative Agent pursuant to
Section 11.12(c) shall include a control account, and a subsidiary account
for each Bank, in which accounts (taken together) shall be recorded (i) the
date
and amount of each Borrowing made hereunder, the type of Loan comprising such
Borrowing and, if appropriate, the Interest Period applicable thereto, (ii)
the
terms of each Assignment and Acceptance delivered to and accepted by it, (iii)
the amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Bank hereunder and (iv) the amount of any
sum
received by the Administrative Agent from the Borrower hereunder and each Bank’s
share thereof.
(c) Entries
made in good faith by the Administrative Agent in the Register pursuant to
subsection (b) above, and by each Bank in its account or accounts pursuant
to subsection (a) above, shall be prima facie
evidence
of the amount of principal and interest due and payable or to become due and
payable from the Borrower to, in the case of the Register, each Bank and, in
the
case of such account or accounts, such Bank, under this Agreement, absent
manifest error;
provided, however,
that
the failure of the Administrative Agent or such Bank to make an entry, or any
finding that an entry is incorrect, in the Register or such account or accounts
shall not limit or otherwise affect the obligations of the Borrower under this
Agreement.
16
Section
2.11 Funding
Indemnity.
If any
Bank shall incur any loss, cost or expense (including, without limitation,
any
loss, cost or expense (excluding loss of margin) incurred by reason of the
liquidation or re-employment of deposits or other funds acquired by such Bank
to
fund or maintain any LIBOR Loan or the relending or reinvesting of such deposits
or amounts paid or prepaid to such Bank) as a result of:
(a) any
payment (whether by acceleration or otherwise), prepayment or conversion of
a
LIBOR Loan on a date other than the last day of its Interest
Period,
(b) any
failure (because of a failure to meet the conditions of Section 6 or
otherwise) by the Borrower to borrow or continue a LIBOR Loan, or to convert
a
Base Rate Loan into a LIBOR Loan, on the date specified in a notice given
pursuant to Section 2.5(a) or established pursuant to Section 2.5(c)
hereof,
(c) any
failure by the Borrower to make any payment of principal on any LIBOR Loan
when
due (whether by acceleration or otherwise), or
(d) any
acceleration of the maturity of a LIBOR Loan as a result of the occurrence
of
any Event of Default hereunder,
then,
upon the demand of such Bank, the Borrower shall pay to such Bank such amount
as
will reimburse such Bank for such loss, cost or expense. If any Bank makes
such
a claim for compensation, it shall provide to the Borrower, with a copy to
the
Administrative Agent, a certificate executed by an officer of such Bank setting
forth the amount of such loss, cost or expense in reasonable detail (including
an explanation of the basis for and the computation of such loss, cost or
expense) and the amounts shown on such certificate if reasonably calculated
shall be conclusive absent manifest error.
Section
2.12 Revolving
Credit Commitment Terminations.
The
Borrower shall have the right at any time and from time to time, upon
five (5) Business Days’ prior written notice to the Administrative Agent,
to terminate the Revolving Credit Commitments without premium or penalty, in
whole or in part, any partial termination to be (i) in an amount not less than
$5,000,000 and integral multiples of $1,000,000 in excess thereof, and (ii)
allocated ratably among the Banks in proportion to their respective Percentages;
provided
that the
Revolving Credit Commitments may not be reduced to an amount less than the
sum
of the amount of all Loans and all L/C Obligations then outstanding. The
Administrative Agent shall give prompt notice to each Bank of any such
termination of Revolving Credit Commitments. Any termination of Revolving Credit
Commitments pursuant to this Section 2.12 may not be
reinstated.
Section
2.13 Regulation D
Compensation.
Each
Bank may require the Borrower to pay, contemporaneously with each payment of
interest on the LIBOR Loans, additional interest on the related LIBOR Loans
of
such Bank at a rate per annum equal to the excess of (i)(A) the applicable
LIBOR
rate (or other base rate determined pursuant to Section 2.9(b)) divided by
(B) one minus the LIBOR Reserve Percentage over (ii) the rate specified in
clause (i)(A). Any computation by a Bank of such additional interest shall
be conclusive absent manifest error. Any Bank wishing to require payment of
such
additional interest (x) shall notify the Borrower and the Administrative Agent
that it is subject to LIBOR reserves under Regulation D of the Board of
Governors of the Federal Reserve System (or any successor regulation), in which
case such additional interest on the LIBOR Loans of such Bank shall be payable
to such Bank at the place indicated in such notice with respect to each Interest
Period commencing at least five (5) Business Days after the giving of such
notice and (y) shall notify the Borrower at least five (5) Business Days
prior to each date on which interest is payable on the LIBOR Loans of the amount
then due under this Section.
17
Section
2.14 Arbitrage
Compensation.
If at
the time of the making of any Loan hereunder, the interest rate payable
hereunder in respect of such Loan is less than the rate (as determined by the
Administrative Agent in consultation with the Borrower) at which funds of
comparable term and amount are generally available to the Borrower in the
commercial paper market (the “CP
Rate”)
(an
“Arbitrage
Condition”),
the
Borrower agrees to pay to the Administrative Agent for the account of each
Bank
arbitrage compensation on such Loan at a rate equal to the difference between
the effective interest rate payable hereunder (inclusive of all fees) in respect
of such Loan and the CP Rate as applied to such Loan. Such payments shall
continue, at the time and in the manner set forth for payments of interest
on
such Loan, for as long as the Arbitrage Condition continues. Upon the
termination of the Arbitrage Condition for any reason (as determined by the
Administrative Agent in consultation with the Borrower), such payments shall
no
longer be due with respect to such Loan, even if a future Arbitrage Condition
were to occur prior to repayment in full of such Loan.
SECTION
3. FEES.
Section
3.1 Fees.
(a) Commitment
Fee.
For the
period from the Effective Date to and including the Termination Date, Borrower
shall pay to the Administrative Agent for the ratable account of the Banks
in
accordance with their Percentages a commitment fee accruing at a rate per annum
equal to the Commitment Fee Rate on the average daily amount of the unused
Revolving Credit Commitments. Such commitment fee is payable in arrears on
June 30, 2006, on the last Business Day of each calendar quarter thereafter
and on the Termination Date, unless the Revolving Credit Commitments are
terminated in whole on an earlier date, in which event the fee for the period
to
but not including the date of such termination shall be paid in whole on the
date of such termination.
(b) Letter
of Credit Fees.
(i) Borrower
shall pay to the Administrative Agent for the account of each Bank letter of
credit fees with respect to the Letters of Credit at a rate per annum equal
to
the L/C Fee Rate on the average daily maximum undrawn face amount of such
outstanding Letters of Credit (including any Letters of Credit outstanding
after
the termination of the Commitments), computed in each case on a quarterly basis
in arrears on the last Business Day of each calendar quarter and on the
Termination Date.
(ii) Borrower
shall pay to the Administrative Agent for the benefit of each Issuing Bank,
as
issuer of each Letter of Credit issued by such Issuing Bank, for the sole
account of such Issuing Bank, a letter of credit fronting fee for each
outstanding Letter of Credit issued by such Issuing Bank at the rate set forth
in the BofA Fee Letter (or in the case of an Issuing Bank other that Bank of
America, N.A., an amount to be agreed by the Borrower and such Issuing Bank
and
disclosed to the Administrative Agent) on the average daily maximum undrawn
face
amount of outstanding Letters of Credit (including any Letters of Credit
outstanding after the termination of the Commitments), computed on the last
Business Day of each calendar quarter and on the Termination Date.
18
(iii) The
letter of credit fees payable under Section 3.1(b)(i) and the fronting fees
payable under Section 3.1(b)(ii) shall be due and payable quarterly in
arrears on the last Business Day of each calendar quarter during which Letters
of Credit are outstanding, commencing on the first such quarterly date to occur
after the Effective Date, and on the Termination
Date,
and if the Commitments are terminated in whole on an earlier date, the fee
for
the period to but not including the date of such termination shall be paid
in
whole on the date of such termination.
(iv) Borrower
shall pay to each Issuing Bank from time to time on demand the standard costs
and charges of such Issuing Bank relating to letters of credit as from time
to
time in effect. Each Issuing Bank shall provide the Borrower with a schedule
of
such costs and charges in effect from time to time.
(c) Administrative
Agent Fees.
The
Borrower shall pay to the Administrative Agent for the sole account of the
Administrative Agent the fees set forth in the BofA Fee Letter or as otherwise
agreed to by the parties to the BofA Fee Letter.
(d) Arranger
Fees.
Borrower shall pay to the Arrangers
for the
accounts of the Arrangers (and no other Persons) the fees agreed to among the
Arrangers and Borrower in the Joint Fee Letter or as otherwise agreed in writing
among them.
(e) Participation
Fee.
Borrower shall pay to each Bank for the account of each such Bank on the
Effective Date a participation fee equal to .05% of such Bank’s Revolving Credit
Commitment.
(f) Fee
Calculations.
All
fees payable under this Agreement shall be payable in U.S. Dollars and shall
be
computed on the basis of a year of 360 days, for the actual number of days
elapsed. All determinations of the amount of fees owing hereunder (and the
components thereof) shall be made by the Administrative Agent and shall be
conclusive absent manifest error.
Section
3.2 Replacement
of Banks.
If any
Bank requests compensation pursuant to Section 9.3 or 11.1 hereof, or any
Bank’s obligations to make Loans shall be suspended pursuant to Section 9.1
or 9.2 hereof, or any Bank becomes a Defaulting Bank pursuant to
Section 11.13 hereof (any such Bank requesting such compensation, or whose
obligations are so suspended, or that becomes and remains a Defaulting Bank
being herein called a “Subject
Bank”),
the
Borrower, upon three Business Days’ notice to the Administrative Agent and the
Subject Bank, may require that such Subject Bank enter into an agreement in
form
and substance satisfactory to the Borrower and the Administrative Agent which
transfers all of its right, title and interest under this Agreement and such
Subject Bank’s Note to any bank or other financial institution (a “Proposed
Bank”)
identified by the Borrower that is satisfactory to the Administrative Agent;
provided
that (i)
the Administrative Agent shall have received an assignment fee in accordance
with Section 11.12(b), (ii) such Proposed Bank agrees to assume all of the
obligations of such Subject Bank hereunder, and to purchase all of such Subject
Bank’s Loans for a consideration equal to the aggregate outstanding principal
amount of such Subject Bank’s Loans, together with interest thereon to the date
of such purchase, and satisfactory arrangements are made for payment to such
Subject Bank of all other amounts payable hereunder to such Subject Bank on
or
prior to the date of such transfer (including any fees accrued hereunder, any
requested compensation pursuant to Section 9.3 or 11.1 hereof and any
amounts that would be payable under Section 2.11 hereof as if all of such
Subject Bank’s Loans were being prepaid in full on such date), (iii) if such
Subject Bank has requested compensation pursuant to Section 9.3 or 11.1
hereof, such Proposed Bank’s aggregate requested compensation, if any, pursuant
to said Section 9.3 or 11.1 with respect to such Subject Bank’s Loans is
lower than that of the Subject Bank, and thereupon such Proposed Bank shall
be a
“Bank” for all purposes of this Agreement and (iv) such assignment does not
conflict with applicable laws.
19
SECTION
4. PLACE
AND APPLICATION OF PAYMENTS.
Section
4.1 Place
and Application of Payments.
All
payments of principal of and interest on the Loans, and of all other Obligations
and other amounts payable by the Borrower under the Credit Documents, shall
be
made by the Borrower to the Administrative Agent or the applicable Issuing
Bank
if such payment is being made with respect to a Reimbursement Obligation, by
no
later than 1:30 p.m. (Eastern time) on the due date thereof at the
principal office of the Administrative Agent or the applicable Issuing Bank,
as
applicable, as set forth on Schedule 11.8 hereof (or such other location in
the United States as the Administrative Agent or the applicable Issuing Bank,
as
applicable, may designate to the Borrower) or, if such payment is on a
Reimbursement Obligation, no later than provided by Section 2.2(c) hereof,
in each case for the benefit of the Person or Persons entitled thereto. Any
payments received after such time shall be deemed to have been received by
the
Administrative Agent or the Issuing Bank on the next Business Day. All such
payments shall be made free and clear of, and without deduction for, any
set-off, counterclaim, levy, or any other deduction of any kind in U.S. Dollars,
in immediately available funds at the place of payment. The Administrative
Agent
or the applicable Issuing Bank, as applicable, will promptly thereafter cause
to
be distributed like funds relating to the payment of principal or interest
on
Loans or applicable fees ratably to the Banks and like funds relating to the
payment of any other amount payable to any Person to such Person, in each case
to be applied in accordance with the terms of this Agreement.
SECTION
5. REPRESENTATIONS
AND WARRANTIES.
The
Borrower hereby represents and warrants to each Bank as to itself and, where
the
following representations and warranties apply to Subsidiaries, as to each
of
its Subsidiaries, as follows:
Section
5.1 Corporate
Organization and Authority.
The
Borrower is duly organized and existing in good standing under the laws of
the
State of Illinois; has all necessary corporate power to carry on its present
business; and is duly licensed or qualified and, in good standing in each
jurisdiction in which the failure to be so licensed, qualified or in good
standing would have a Material Adverse Effect.
Section
5.2 Corporate
Authority and Validity of Obligations.
The
Borrower has full right and authority to enter into this Agreement and the
other
Credit Documents to which it is a party, to make the borrowings herein provided
for, to issue its Notes in evidence thereof (and to have applied) for the
issuance of the Letters of Credit, and to perform all of its obligations under
the Credit Documents to which it is a party. Each Credit Document to which
it is
a party has been duly authorized, executed and delivered by the Borrower and
constitutes valid and binding obligations of the Borrower enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the
enforceability of creditors’ rights generally and by equitable principles of
general applicability (regardless of whether such enforceability is considered
in a proceeding in equity or at law). No Credit Document, nor the performance
or
observance by the Borrower of any of the matters or things therein provided
for,
contravenes any provision of law or any charter or by-law provision of the
Borrower or any material Contractual Obligation of or affecting the Borrower
or
any of its Properties or results in or requires the creation or imposition
of
any Lien on any of the Properties or revenues of the Borrower.
20
Section
5.3 Financial
Statements.
All
financial statements heretofore delivered to the Banks showing historical
performance of the Borrower for each of the Borrower’s fiscal years ending on or
before September 30, 2005, have been prepared in accordance with generally
accepted accounting principles applied on a basis consistent, except as
otherwise noted therein, with that of the previous fiscal year. Each of such
financial statements fairly presents on a consolidated basis the financial
condition of the Borrower and its Subsidiaries as of the dates thereof and
the
results of operations for the periods covered thereby. The Borrower and its
Subsidiaries have no material contingent liabilities other than those disclosed
in the financial statements or in comments or footnotes thereto, or in any
report supplementary thereto, most recently furnished to the Banks as of the
time such representation and warranty is made, including reports of the Borrower
filed with the SEC from time to time. Since September 30, 2005 through the
Effective Date, there has been no event or series of events which has resulted
in a Material Adverse Effect.
Section
5.4 Approvals.
No
authorization, approval, consent, license, exemption, filing or registration
with any court or governmental department, agency or instrumentality, nor any
approval or consent of the stockholders of the Borrower or any Subsidiary or
from any other Person, is necessary to the valid execution, delivery or
performance by the Borrower or any Subsidiary of any Credit Document to which
it
is a party.
Section
5.5 ERISA.
With
respect to each Plan, the Borrower and each other member of the Controlled
Group
has fulfilled its obligations under the minimum funding standards of and is
in
compliance in all material respects with the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”),
and
with the Code to the extent applicable to it and has not incurred any liability
to the Pension Benefit Guaranty Corporation (“PBGC”)
or a
Plan under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA. Neither the Borrower nor any
Subsidiary has any contingent liabilities for any post-retirement benefits
under
a Welfare Plan, other than liability for continuation coverage described in
Part 6 of Title I of ERISA.
Section
5.6 Government
Regulation.
Neither
the Borrower nor any Subsidiary is an “investment
company”
within
the meaning of the Investment Company Act of 1940, as amended.
Section
5.7 Margin
Stock; Proceeds.
Neither
the Borrower nor any Subsidiary is engaged principally, or as one of its primary
activities, in the business of extending credit for the purpose of purchasing
or
carrying margin stock (“margin
stock”
to
have
the same meaning herein as in Regulation U of the Board of Governors of the
Federal Reserve System). The Borrower will not use the proceeds of any Loan
or
any Letter of Credit in a manner that violates any provision of
Regulation U or X of the Board of Governors of the Federal Reserve System.
The Borrower is not subject to regulation under the Investment Company Act
of
1940. In addition, the Borrower is not an “investment company” registered or
required to be registered under the Investment Company Act of 1940. Proceeds
of
the Loans and the Letters of Credit will only be used to backstop commercial
paper issued by the Borrower and for general corporate purposes.
Section
5.8 Full
Disclosure.
All
information heretofore furnished by the Borrower to the Administrative Agent
or
any Bank for purposes of or in connection with the Credit Documents or any
transaction contemplated thereby is, and all such information hereafter
furnished by the Borrower to the Administrative Agent or any Bank will be,
to
the best of the Borrower’s knowledge, after due inquiry, true and accurate in
all material respects and not misleading on the date as of which such
information is stated or certified.
21
SECTION
6. CONDITIONS
PRECEDENT.
The
obligation of each Bank to advance any Loan, or of an Issuing Bank to issue,
extend the expiration date of or increase the amount of any Letter of Credit,
shall be subject to the following conditions precedent:
Section
6.1 Initial
Credit Event.
Before
or concurrently with the Effective Date:
(a) The
Administrative Agent shall have received the favorable written opinion of
counsel to the Borrower reasonably acceptable to Administrative Agent and in
substantially the form attached hereto as Exhibit 6.1 hereto;
(b) The
Administrative Agent shall have received copies of (i) the Articles of
Incorporation, together with all amendments, recently certified by the
appropriate governmental authority and (ii) the Borrower’s bylaws (or comparable
constituent documents) and any amendments thereto, certified in each instance
by
its Secretary or an Assistant Secretary;
(c) The
Administrative Agent shall have received copies of resolutions of the Borrower’s
Board of Directors authorizing the execution and delivery of the Credit
Documents and the consummation of the transactions contemplated thereby together
with specimen signatures of the persons authorized to execute such documents
on
the Borrower’s behalf, all certified in each instance by its Secretary or an
Assistant Secretary;
(d) The
Administrative Agent shall have received for each Bank that has requested one,
such Bank’s duly executed Note of the Borrower dated the date hereof and
otherwise in compliance with the provisions of Section 2.10(a)
hereof;
(e) The
Administrative Agent shall have received a duly executed original of (i) this
Agreement, (ii) a list of the Borrower’s Authorized Representatives and (iii)
such other documents as the Administrative Agent may reasonably request on
behalf of any Bank;
(f) The
Administrative Agent shall have received a certificate by the chief financial
officer of the Borrower, stating that on the Effective Date no Default or Event
of Default has occurred and is continuing, that all representations and
warranties set forth herein are true and correct as of such date, and that
the
Existing Credit Agreement has been terminated (and by its execution hereof
each
Bank party to the Existing Credit Agreement agrees that the Existing Credit
Agreement is terminated);
(g) With
respect to all Indebtedness and other obligations, absolute or contingent,
under
the Existing Credit Agreement, a payoff letter from the agent for the lenders
thereunder in form and substance reasonably satisfactory to the Administrative
Agent, together with such termination statements, releases of mortgage Liens
and
other instruments, documents and/or agreements necessary or appropriate to
terminate any Liens in favor of such agent securing such obligations which
is to
be paid off on the Effective Date as the Administrative Agent may reasonably
request, duly executed and in form and substance reasonably satisfactory to
the
Administrative Agent;
(h) The
Administrative Agent shall have received a duly executed original of the Fee
Letters together with any fees then payable thereunder, and each Bank shall
have
received its participation fee; and
(i) The
Administrative Agent shall have received a duly executed Compliance Certificate
containing information as of March 31, 2006.
22
Section
6.2 All
Credit Events.
As of
the time of each Credit Event hereunder:
(a) In
the
case of any Loan, the Administrative Agent shall have received the notice
required by Section 2.5 hereof. In
the
case of the issuance of any Letter of Credit, the applicable Issuing Bank shall
have received the request for such Letter of Credit required by
Section 2.2(b), and a duly completed Application for a Letter of Credit. In
the case of an extension or increase in the amount of a Letter of Credit, the
applicable Issuing Bank shall have received a written request therefor, in
a
form acceptable to such Issuing Bank
(b) Each
of
the representations and warranties set forth in Section 5 hereof (except
the last sentence of Section 5.3) shall be and remain true and correct in
all material respects as of said time, taking into account any amendments to
such Section (including without limitation any amendments, modifications
and updates to the Schedules referenced therein) made after the date of
this Agreement in accordance with its provisions, except that if any such
representation or warranty relates solely to an earlier date it need only remain
true as of such date; and
(c) The
Borrower shall be in full compliance with all of the terms and conditions
hereof, and no Default or Event of Default shall have occurred and be continuing
or would occur as a result of such Credit Event.
Each
request for a Borrowing consisting of an advance of a Loan hereunder shall
be
deemed to be a representation and warranty by the Borrower on the date of such
Credit Event as to the facts specified in paragraphs (b) and (c) of this
Section 6.2.
SECTION
7. COVENANTS.
The
Borrower covenants and agrees that, so long as any Note, Loan or L/C Obligation
is outstanding hereunder, or any Revolving Credit Commitment is available to
or
in use by the Borrower hereunder, except to the extent compliance in any case
is
waived in writing by the Required Banks:
Section
7.1 Corporate
Existence. Borrower
shall preserve and maintain its corporate existence.
Section
7.2 ERISA.
The
Borrower will, and will cause each of its Subsidiaries to, promptly pay and
discharge all obligations and liabilities arising under ERISA of a character
which if unpaid or unperformed might result in the imposition of a Lien against
any of its properties or assets and will promptly notify the Administrative
Agent of (i) the occurrence of any reportable event (as defined in ERISA)
affecting a Plan, other than any such event of which the PBGC has waived notice
by regulation, (ii) receipt of any notice from PBGC of its intention to seek
termination of any Plan or appointment of a trustee therefor, (iii) its or
any
of its Subsidiaries’ intention to terminate or withdraw from any Plan, and (iv)
the occurrence of any event affecting any Plan which could result in the
incurrence by the Borrower or any of its Subsidiaries of any material liability,
fine or penalty, or any material increase in the contingent liability of the
Borrower or any of its Subsidiaries under any post-retirement Welfare Plan
benefit. The Administrative Agent will promptly distribute to each Bank any
notice it receives from the Borrower pursuant to this
Section 7.2.
23
Section
7.3 Financial
Reports and Other Information.
(a) The
Borrower will maintain a system of accounting in accordance with GAAP and will
furnish to the Banks and their respective duly authorized representatives such
information respecting the business and financial condition of the Borrower
as
any Bank may reasonably request; and without any request, the Borrower will
furnish each of the following to the Administrative Agent:
(i) within
one hundred twenty (120) days after the end of its fiscal year of the
Borrower, a copy of the Borrower’s financial statements for such fiscal year,
including the consolidated balance sheet of the Borrower for such year and
the
related statement of income and statement of cash flow, as certified by
independent public accountants of recognized national standing selected by
the
Borrower in accordance with GAAP with such accountants’ opinion to the effect
that the financial statements have been prepared in accordance with GAAP and
present fairly in all material respects in accordance with GAAP the consolidated
financial position of the Borrower and its Subsidiaries as of the close of
such
fiscal year and the results of their operations and cash flows for the fiscal
year then ended and that an examination of such accounts in connection with
such
financial statements has been made in accordance with generally accepted
auditing standards and, accordingly, such examination included such tests of
the
accounting records and such other auditing procedures as were considered
necessary in the circumstances;
(ii) within
sixty (60) days after the end of each of the three quarterly fiscal periods
of the Borrower during the term hereof, a consolidated unaudited balance sheet
of the Borrower, and the related statement of income and statement of cash
flow,
as of the close of such period, all of the foregoing prepared by the Borrower
in
reasonable detail in accordance with GAAP and certified by the Borrower’s chief
financial officer as fairly presenting the financial condition as at the dates
thereof and the results of operations for the periods covered thereby;
and
(iii) within
five (5) days after Borrower files a Form 8-K with the SEC, a copy of
said form 8-K.
(b) Each
financial statement furnished to the Banks pursuant to subsection (i) or
(ii) of this Section 7.3 shall be accompanied by (i) a written certificate
signed by the Borrower’s chief financial officer to the effect that no Default
or Event of Default has occurred during the period covered by such statements
or, if any such Default or Event of Default has occurred during such period,
setting forth a description of such Default or Event of Default and specifying
the action, if any, taken by the Borrower to remedy the same, and (ii) a
Compliance Certificate in the form of Exhibit 7.3 hereto showing the
Borrower’s compliance with the covenants set forth in Sections 7.5 and 7.6
hereof.
(c) The
Borrower will promptly (and in any event within five Business Days after an
officer of the Borrower has knowledge thereof) give notice to the Administrative
Agent and each Bank of the occurrence of any Default or Event of
Default.
24
The
Borrower hereby acknowledges that (A) the Administrative Agent and/or the
Arrangers will make available to the Banks and the Issuing Bank materials and/or
information provided by or on behalf of the Borrower hereunder (collectively,
“Borrower Materials”) by posting the Borrower Materials on IntraLinks or another
similar electronic system (the “Platform”) and (B) certain of the Banks may be
“public-side” Banks (i.e.,
Banks
that do not wish to receive material non-public information with respect to
the
Borrower or its securities) (each, a “Public Bank”). The Borrower hereby agrees
that (w) all Borrower Materials that are to be made available to Public Banks
shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall
mean that the word “PUBLIC” shall appear prominently on the first page thereof;
(x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have
authorized the Administrative Agent, the Arranger and the Banks to treat such
Borrower Materials as not containing any material non-public information with
respect to the Borrower or its securities for purposes of United States federal
and state securities laws (provided,
however,
that to
the extent such Borrower Materials constitute Information, they shall be treated
as set forth in Section 11.21); (y) all Borrower Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated
as
“Public Investor;” and (z) the Administrative Agent and the Arranger shall be
entitled to treat any Borrower Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Platform not marked as “Public
Investor.” Notwithstanding the foregoing, the Borrower shall be under no
obligation to xxxx any Borrower Materials “PUBLIC.”
Section
7.4 Regulation U;
Proceeds.
The
Borrower will not use any part of the proceeds of any of the Borrowings or
any
of the credit provided by Letters of Credit, directly or indirectly to purchase
or carry any margin stock (as defined in Section 5.7 hereof) or to extend
credit to others for the purpose of purchasing or carrying any such margin
stock. The Borrower will only use proceeds of the Loans for general corporate
purposes.
Section
7.5 Sales
of Assets.
(a) The
Borrower will not during the term of this Agreement sell, lease or otherwise
dispose of more that (i) thirty-five percent (35%) of the consolidated fixed
assets of the Borrower or (ii) fifteen percent (15%) of the consolidated
"regulated assets" of the Borrower. For purposes of this Section 7.5(a) the
amount of consolidated fixed assets shall be determined using the net book
value
of such assets at the time of such sale, lease or disposition.
(b) The
Borrower will not during the term of this Agreement sell, transfer or otherwise
dispose of, or permit any Subsidiary to issue, sell, transfer or otherwise
dispose of, more than twenty percent (20%) of any of its public utility
Subsidiaries' shares of stock of any class (including as “stock” for purposes of
this Section, any warrants, rights or options to purchase or otherwise acquire
stock or other Securities exchangeable for or convertible into
stock).
Section
7.6 Capital
Ratio.
The
Borrower will not at any time permit the Capital Ratio to exceed 0.65 to
1.00.
Section
7.7 Compliance
with Laws.
Without
limiting any of the other covenants of the Borrower in this Section 7, the
Borrower will conduct its business, and otherwise be, in compliance with all
applicable laws, regulations, ordinances and orders of any governmental or
judicial authorities; provided,
however,
that
the Borrower shall not be required to comply with any such law, regulation,
ordinance or order if the failure to comply therewith could not reasonably
be
expected to have a Material Adverse Effect.
25
Section
7.8 Mergers
and Consolidations.
The
Borrower will not, and will not permit any public utility Subsidiary, to
consolidate with or be a party to merger with any other Person; provided,
however, that the Borrower or any public utility Subsidiary of the Borrower
may,
upon prior notice to the Agent, enter into one or more mergers or acquisitions
with any other Person so long as (a) in the case of the Borrower, the Borrower
is the surviving entity and (b) in the case of a public utility Subsidiary
of
the Borrower, the Borrower will at all times continue to own at least 80% of
the
equity securities of such public utility Subsidiary.
SECTION
8. EVENTS
OF DEFAULT AND REMEDIES.
Section
8.1 Events
of Default.
Any one
or more of the following shall constitute an Event of Default:
(a) non-payment
(i) when due of the principal of any Loan or any Reimbursement Obligation or
(ii) in the payment of fees, interest or of any other Obligation within
five (5) days of the due date;
(b) default
by the Borrower in the observance or performance of any covenant set forth
in
Section 7.1 or (ii) Section 7.3(c), Section 7.4 through 7.6
hereof;
(c) default
by the Borrower in the observance or performance of any provision hereof or
of
any other Credit Document not mentioned in (a) or (b) above, which is not
remedied within thirty (30) days after notice thereof shall have been given
to the Borrower by the Administrative Agent, provided that, with respect only
to
Section 7.7, if Borrower has made good faith efforts to cure such default,
then the Borrower shall be afforded an additional period of time to cure such
default, such additional cure period not to exceed thirty (30)
days;
(d) failure
to pay when due Indebtedness in an aggregate principal amount of $15,000,000
or
more of the Borrower, or (ii) default shall occur under one or more indentures,
agreements or other instruments under which any Indebtedness of the Borrower
in
an aggregate principal amount of $15,000,000 or more and such default shall
continue for a period of time sufficient to permit the holder or beneficiary
of
such Indebtedness or a trustee therefor to cause the acceleration of the
maturity of any such Indebtedness or any mandatory unscheduled prepayment,
purchase or funding;
(e) representation
or warranty made herein or in any other Credit Document by the Borrower, or
in
any statement or certificate furnished pursuant hereto or pursuant to any other
Credit Document by the Borrower, or in connection with any Credit Document,
proves untrue in any material respect as of the date of the issuance or making,
or deemed making or issuance, thereof;
(f) Borrower
shall (i) have entered involuntarily against it an order for relief under the
United States Bankruptcy Code, as amended, or any analogous action is taken
under any other applicable law relating to bankruptcy or insolvency and such
action continues undischarged or is not dismissed or stayed for a period of
sixty (60) days, (ii) fail to pay its debts generally as they become due
and such failure to pay would constitute an Event of Default under
Section 8.1(d) or admit in writing its inability to pay its debts generally
as they become due, (iii) make an assignment for the benefit of creditors,
(iv)
apply for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
substantial part of its Property, (v) institute any proceeding seeking to have
entered against it an order for relief under the United States Bankruptcy Code,
as amended, to adjudicate it insolvent, or seeking dissolution, winding up,
liquidation, reorganization, arrangement, adjustment or composition of it or
its
debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors or fail to file an answer or other pleading denying the
material allegations of any such proceeding filed against it, (vi) take any
corporate action (such as the passage by its board of directors of a resolution)
in furtherance of any matter described in parts (i)-(v) above, or (vii) fail
to
contest in good faith any appointment or proceeding described in
Section 8.1(g) hereof;
26
(g) Custodian,
receiver, trustee, examiner, liquidator or similar official shall be appointed
for the Borrower or any of its Significant Subsidiaries, or any substantial
part
of any of their Property, or a proceeding described in Section 8.1(f)(v)
shall be instituted against the Borrower, and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period
of sixty (60) days;
(h) the
Borrower shall fail within thirty (30) days to pay, bond or otherwise
discharge any judgment or order for the payment of money in excess of
$15,000,000 which is not stayed on appeal or otherwise being appropriately
contested in good faith in a manner that stays execution thereon;
or
(i) the
Borrower or any other member of the Controlled Group shall fail to pay when
due
an amount or amounts which it shall have become liable, to pay to the PBGC
or to
a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or
Plans having aggregate Unfunded Vested Liabilities in excess of $5,000,000
(collectively, a “Material
Plan”)
shall
be filed under Title IV of ERISA by the Borrower or any other member of the
Controlled Group, any plan administrator or any combination of the foregoing;
or
the PBGC shall institute proceedings under Title IV of ERISA to terminate
or to cause a trustee to be appointed to administer any Material Plan or a
proceeding shall be instituted by a fiduciary of any Material Plan against
the
Borrower or any other member of the Controlled Group to enforce Section 515
or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed within
thirty (30) days thereafter; or a condition shall exist by reason of which
the PBGC would be entitled to obtain a decree adjudicating that any Material
Plan must be terminated.
Section
8.2 Non-Bankruptcy
Defaults.
When
any Event of Default other than those described in subsections (f) or (g)
of Section 8.1 hereof has occurred and is continuing, the Administrative
Agent shall, by written notice to the Borrower if so directed by the Required
Banks: (a) terminate the remaining Revolving Credit Commitments and all other
obligations of the Banks hereunder (other than the obligations of the Banks
under section 11.21 hereof) on the date stated in such notice (which may be
the
date thereof); (b) declare the principal of and the accrued interest on all
outstanding Notes to be forthwith due and payable and thereupon all outstanding
Notes, including both principal and interest thereon, and all other Obligations,
shall be and become immediately due and payable together with all other amounts
payable under the Credit Documents without further demand, presentment, protest
or notice of any kind and (c)
demand that Borrower immediately pay to the Administrative Agent, subject to
Section 8.4, the full amount then available for drawing under each or any
Letter of Credit.
The
Administrative Agent, after giving notice to the Borrower pursuant to
Section 8.1(c) or this Section 8.2, shall also promptly send a copy of
such notice to the other Banks, but the failure to do so shall not impair or
annul the effect of such notice.
Section
8.3 Bankruptcy
Defaults.
When
any Event of Default described in subsections (f) or (g) of
Section 8.1 hereof has occurred and is continuing, then all outstanding
Notes shall immediately become due and payable together with all other amounts
payable under the Credit Documents without presentment, demand, protest or
notice of any kind and the obligation of the Banks to extend further credit
pursuant to any of the terms hereof shall immediately terminate.
Section
8.4 Expenses.
The
Borrower agrees to pay to the Administrative Agent, the Issuing Banks and each
Bank, and any other holder of any Note outstanding hereunder, all costs and
expenses incurred or paid by the Administrative Agent, the Issuing Bank or
such
Bank or any such holder, including reasonable attorneys’ fees (including
reasonable allocable fees of in-house counsel) and court costs, in connection
with any Default or Event of Default by the Borrower hereunder or in connection
with the enforcement of any of the Credit Documents.
27
SECTION
9. CHANGE
IN CIRCUMSTANCES.
Section
9.1 Change
of Law.
Notwithstanding any other provisions of this Agreement or any Note, if at any
time after the date hereof any change in applicable law or regulation or in
the
interpretation thereof makes it unlawful for any Bank to make or continue to
maintain LIBOR Loans or to perform its obligations as contemplated hereby,
such
Bank shall promptly give notice thereof to the Borrower and such Bank’s
obligations to make or maintain LIBOR Loans under this Agreement shall terminate
until it is no longer unlawful for such Bank to make or maintain LIBOR Loans.
The Borrower shall prepay on demand the outstanding principal amount of any
such
affected LIBOR Loans, together with all interest accrued thereon at a rate
per
annum equal to the interest rate applicable to such Loan; provided,
however,
subject
to all of the terms and conditions of this Agreement, the Borrower may then
elect to borrow the principal amount of the affected LIBOR Loans from such
Bank
by means of Base Rate Loans from such Bank, which Base Rate Loans shall not
be
made ratably by the Banks but only from such affected Bank.
Section
9.2 Unavailability
of Deposits or Inability to Ascertain, or Inadequacy of,
LIBOR.
If on or
prior to the first day of any Interest Period for any Borrowing of LIBOR
Loans:
(a) the
Administrative Agent determines that deposits in U.S. Dollars (in the applicable
amounts) are not being offered to major banks in the LIBOR interbank market
for
such Interest Period, or that by reason of circumstances affecting the interbank
LIBOR market adequate and reasonable means do not exist for ascertaining the
applicable LIBOR Rate, or
(b) Banks
having twenty five percent (25%) or more of the aggregate amount of the
Revolving Credit Commitments reasonably determine and so advise the
Administrative Agent that LIBOR Rate as reasonably determined by the
Administrative Agent will not adequately and fairly reflect the cost to such
Banks or Bank of funding their or its LIBOR Loans or Loan for such Interest
Period, then the Administrative Agent shall forthwith give notice thereof to
the
Borrower and the Banks, whereupon until the Administrative Agent notifies the
Borrower that the circumstances giving rise to such suspension no longer exist,
the obligations of the Banks or of the relevant Bank to make LIBOR Loans shall
be suspended.
Section
9.3 Increased
Cost and Reduced Return.
(a) If,
on or
after the date hereof, the adoption of any applicable law, rule or regulation,
or any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Bank
(or
its Lending Office) with any request or directive (whether or not having the
force of law but, if not having the force of law, compliance with which is
customary in the relevant jurisdiction) of any such authority, central bank
or
comparable agency:
(i) shall
subject any Bank (or its Lending Office) to any tax, duty or other charge with
respect to its LIBOR Loans, its Notes, its
Letter(s) of Credit, or its participation in any thereof, any Reimbursement
Obligations owed to it or its obligation to make LIBOR Loans, issue a Letter
of
Credit, or to participate therein, or
shall
change the basis of taxation of payments to any Bank (or its Lending Office)
of
the principal of or interest on its LIBOR Loans, Letter(s) of Credit, or
participations therein or any other amounts due under this Agreement in respect
of its LIBOR Loans, Letter(s) of Credit, or participations therein, any
Reimbursement Obligations owed to it, or its obligation to make LIBOR Loans,
issue a Letter of Credit, or acquire participations therein (except for changes
in the rate of tax on the overall net income or profits of such Bank or its
Lending Office imposed by the jurisdiction in which such Bank or its lending
office is incorporated in which such Bank’s principal executive office or
Lending Office is located); or
28
(ii) shall
impose, modify or deem applicable any reserve, special deposit or similar
requirement (including, without limitation, any such requirement imposed by
the
Board of Governors of the Federal Reserve System, but excluding with respect
to
any LIBOR Loans any such requirement included in an applicable LIBOR Reserve
Percentage) against assets of, deposits with or for the account of, or credit
extended by, any Bank (or its Lending Office) or shall impose on any Bank (or
its Lending Office) or on the interbank market any other condition affecting
its
LIBOR Loans, its Notes, its Letter(s)
of Credit, or its participation in any thereof, any Reimbursement Obligation
owed to it, or its obligation to make LIBOR Loans, to issue a Letter of Credit,
or to participate therein;
and
the
result of any of the foregoing is to increase the cost to such Bank (or its
Lending Office) of making or maintaining any LIBOR Loan, issuing or maintaining
a Letter of Credit, or participating therein, or to reduce the amount of any
sum
received or receivable by such Bank (or its Lending Office) under this Agreement
or under its Notes with respect thereto, by an amount deemed by such Bank to
be
material, then, within fifteen (15) days after demand by such Bank (with a
copy to the Administrative Agent), the Borrower shall be obligated to pay to
such Bank such additional amount or amounts as will compensate such Bank for
such increased cost or reduction. In the event any law, rule, regulation or
interpretation described above is revoked, declared invalid or inapplicable
or
is otherwise rescinded, and as a result thereof a Bank is determined to be
entitled to a refund from the applicable authority for any amount or amounts
which were paid or reimbursed by Borrower to such Bank hereunder, such Bank
shall refund such amount or amounts to Borrower without interest.
(b) If,
after
the date hereof, any Bank or the Administrative Agent shall have determined
that
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein (including, without limitation, any revision
in
the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal
Reserve System (12 CFR Part 208, Appendix A; 00 XXX Xxxx 000,
Xxxxxxxx X) or of the Office of the Comptroller of the Currency (12 CFR
Part 3, Appendix A), or in any other applicable capital rules
heretofore adopted and issued by any governmental authority), 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 Bank (or its Lending Office) with
any request or directive regarding capital adequacy (whether or not having
the
force of law but, if not having the force of law, compliance with which is
customary in the applicable jurisdiction) of any such authority, central bank
or
comparable agency, has or would have the effect of reducing the rate of return
on such Bank’s capital, or on the capital of any corporation controlling such
Bank, as a consequence of its obligations hereunder to a level below that which
such Bank could have achieved but for such adoption, change or compliance
(taking into consideration such Bank’s policies with respect to capital
adequacy) by an amount deemed by such Bank to be material, then from time to
time, within fifteen (15) days after demand by such Bank (with a copy to
the Administrative Agent), the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank for such reduction.
29
(c) Each
Bank
that determines to seek compensation under this Section 9.3 shall notify
the Borrower and the Administrative Agent of the circumstances that entitle
the
Bank to such compensation pursuant to this Section 9.3 and will designate a
different Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the sole judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section 9.3 and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive
in
the absence of manifest error. In determining such amount, such Bank may use
any
reasonable averaging and attribution methods. No Bank shall be entitled to
demand compensation under this Section 9.3 for any period more than 90 days
prior to the day on which such demand is made; provided however, that the
foregoing shall in no way limit the right of any Bank to demand or receive
such
compensation to the extent that such compensation relates to the retroactive
application of any law, regulation, guideline or request if such demand is
made
within 90 days after the implementation of such retroactive law, interpretation,
guideline or request. A certificate as to the nature and amount of such
increased cost, submitted to the Borrower and the Administrative Agent by such
Bank in good faith, shall be conclusive and binding for all purposes, absent
manifest error.
Section
9.4 Lending
Offices.
Each
Bank may, at its option, elect to make its Loans hereunder at the branch, office
or affiliate specified in its Administrative Questionnaire or in the assignment
agreement which any assignee bank executes pursuant to Section 11.12 hereof
(each a “Lending
Office”)
for
each type of Loan available hereunder or at such other of its branches, offices
or affiliates as it may from time to time elect and designate in a written
notice to the Borrower and the Administrative Agent.
Section
9.5 Discretion
of Bank as to Manner of Funding.
Notwithstanding any other provision of this Agreement, each Bank 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 each Bank had
actually funded and maintained each LIBOR Loan through the purchase of deposits
in the LIBOR interbank market having a maturity corresponding to such Loan’s
Interest Period and bearing an interest rate equal to the LIBOR Rate for such
Interest Period.
SECTION
10. THE
ADMINISTRATIVE AGENT.
Section
10.1 Appointment
and Authority.
Each of
the Banks and the Issuing Bank hereby irrevocably appoints Bank of America
to
act on its behalf as the Administrative Agent hereunder and under the other
Credit Documents and authorizes the Administrative Agent to take such actions
on
its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof or thereof, together with such actions and powers
as
are reasonably incidental thereto. The provisions of this Section 10 are solely
for the benefit of the Administrative Agent, the Banks and the Issuing Bank,
and
the Borrower shall not have rights as a third party beneficiary of any of such
provisions.
30
Section
10.2 Rights
as a Bank.
The
Person serving as the Administrative Agent hereunder shall have the same rights
and powers in its capacity as a Bank as any other Bank and may exercise the
same
as though it were not the Administrative Agent and the term “Bank” or “Banks”
shall, unless otherwise expressly indicated or unless the context otherwise
requires, include the Person serving as the Administrative Agent hereunder
in
its individual capacity. Such Person and its Affiliates may accept deposits
from, lend money to, act as the financial advisor or in any other advisory
capacity for and generally engage in any kind of business with the Borrower
or
any Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to
the
Banks.
Section
10.3 Exculpatory
Provisions.
The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Credit Documents. Without limiting
the generality of the foregoing, the Administrative Agent:
(a) shall
not
be subject to any fiduciary or other implied duties, regardless of whether
a
Default has occurred and is continuing;
(b) shall
not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby
or
by the other Credit Documents that the Administrative Agent is required to
exercise as directed in writing by the Required Banks (or such other number
or
percentage of the Banks as shall be expressly provided for herein or in the
other Credit Documents), provided
that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent
to
liability or that is contrary to any Credit Document or applicable law;
and
(c) shall
not, except as expressly set forth herein and in the other Credit Documents,
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrower or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent
or
any of its Affiliates in any capacity.
The
Administrative Agent shall not be liable for any action taken or not taken
by it
(i) with the consent or at the request of the Required Banks (or such other
number or percentage of the Banks as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under
the
circumstances as provided in Sections 11.13 and Section 8) or (ii) in the
absence of its own gross negligence or willful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until
notice describing such Default is given to the Administrative Agent by the
Borrower, a Bank or the Issuing Bank.
The
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Credit Document, (ii) the contents
of any certificate, report or other document delivered hereunder or thereunder
or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth
herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Credit
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Section 6 or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
Section
10.4 Reliance
by Administrative Agent.
The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed
by
it to be genuine and to have been signed, sent or otherwise authenticated by
the
proper Person. The Administrative Agent also may rely upon any statement made
to
it orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance
of a Letter of Credit, that by its terms must be fulfilled to the satisfaction
of a Bank or the Issuing Bank, the Administrative Agent may presume that such
condition is satisfactory to such Bank or the Issuing Bank unless the
Administrative Agent shall have received notice to the contrary from such Bank
or the Issuing Bank prior to the making of such Loan or the issuance of such
Letter of Credit. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by
it
in accordance with the advice of any such counsel, accountants or
experts.
31
Section
10.5 Delegation
of Duties.
The
Administrative Agent may perform any and all of its duties and exercise its
rights and powers hereunder or under any other Credit Document by or through
any
one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers by or through their respective Related Parties. The
exculpatory provisions of this Section 10 shall apply to any such sub-agent
and
to the Related Parties of the Administrative Agent and any such sub-agent,
and
shall apply to their respective activities in connection with the syndication
of
the credit facilities provided for herein as well as activities as
Administrative Agent.
Section
10.6 Resignation
of Administrative Agent.
The
Administrative Agent may at any time give notice of its resignation to the
Banks, the Issuing Bank and the Borrower. Upon receipt of any such notice of
resignation, the Required Banks shall have the right, in consultation with
the
Borrower, to appoint a successor, which shall be a bank with an office in the
United States, or an Affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the Required Banks
and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Banks and the Issuing Bank, appoint
a
successor Administrative Agent meeting the qualifications set forth above;
provided
that if
the Administrative Agent shall notify the Borrower and the Banks that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (a) the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Credit Documents and (b) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Bank and
the Issuing Bank directly, until such time as the Required Banks appoint a
successor Administrative Agent as provided for above in this Section. Upon
the
acceptance of a successor's appointment as Administrative Agent hereunder,
such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and
the
retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Credit Documents (if not already
discharged therefrom as provided above in this Section 10.6). The fees payable
by the Borrower to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and
such
successor. After the retiring Administrative Agent's resignation hereunder
and
under the other Credit Documents, the provisions of this Section 10 and
Section 11.15 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while the
retiring Administrative Agent was acting as Administrative Agent.
Any
resignation by Bank of America as Administrative Agent pursuant to this Section
10.6 shall also constitute its resignation as Issuing Bank. Upon the acceptance
of a successor's appointment as Administrative Agent hereunder, (i) such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring Issuing Bank, (ii) the retiring Issuing
Bank shall be discharged from all of their respective duties and obligations
hereunder or under the other Credit Documents, and (iii) the successor Issuing
Bank shall issue letters of credit in substitution for the Letters of Credit,
if
any, outstanding at the time of such succession or make other arrangements
satisfactory to the retiring Issuing Bank to effectively assume the obligations
of the retiring Issuing Bank with respect to such Letters of
Credit.
32
Section
10.7 Non-Reliance
on Administrative Agent and Other Banks.
Each
Bank and the Issuing Bank acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Bank or any of their Related
Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Bank and the Issuing Bank also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Bank or any of their Related Parties and based on such documents and information
as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement,
any
other Credit Document or any related agreement or any document furnished
hereunder or thereunder.
Section
10.8 No
Other Duties; Etc.
Anything
herein to the contrary notwithstanding, none of the bookrunners, arrangers,
syndication agents, documentation agents or co-agents shall have any powers,
duties or responsibilities under this Agreement or any of the other Credit
Documents, except in its capacity, as applicable, as the Administrative Agent,
a
Bank or the Issuing Bank hereunder.
Section
10.9 Administrative
Agent May File Proofs of Claim.
In case
of the pendency of any proceeding under the United States Bankruptcy Code,
as
amended, or any analogous action is taken under any other applicable law
relating to bankruptcy or insolvency or any other judicial proceeding relative
to the Borrower, the Administrative Agent (irrespective of whether the principal
of any Loan or L/C Obligation shall then be due and payable as herein expressed
or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(a) to
file
and prove a claim for the whole amount of the principal and interest owing
and
unpaid in respect of the Loans, L/C Obligations and all other Obligations
arising under the Credit Documents that are owing and unpaid and to file such
other documents as may be necessary or advisable in order to have the claims
of
the Banks, the Issuing Bank and the Administrative Agent (including any claim
for the reasonable compensation, expenses, disbursements and advances of the
Banks, the Issuing Bank and the Administrative Agent and their respective agents
and counsel and all other amounts due the Banks, the Issuing Bank and the
Administrative Agent under 3.1 and 11.15) allowed in such judicial proceeding;
and
(b) to
collect and receive any monies or other property payable or deliverable on
any
such claims and to distribute the same;
and
any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Bank and the Issuing Bank to make such payments to the Administrative Agent
and,
if the Administrative Agent shall consent to the making of such payments
directly to the Banks and the Issuing Bank, to pay to the Administrative Agent
any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other
amounts due the Administrative Agent under Sections 3.1 and 11.15.
Nothing
contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Bank or the Issuing
Bank any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Bank or the Issuing Bank to
authorize the Administrative Agent to vote in respect of the claim of any Bank
or the Issuing Bank in any such proceeding.
33
SECTION
11. MISCELLANEOUS.
Section
11.1 Withholding
Taxes.
(a) Payments
Free of Withholding.
Subject
to Section 11.1(b) hereof, each payment by the Borrower under this
Agreement or the other Credit Documents shall be made without withholding for
or
on account of any present or future taxes (other than overall net income taxes
on the recipient). If any such withholding is so required, the Borrower shall
make the withholding, pay the amount withheld to the appropriate governmental
authority before penalties attach thereto or interest accrues thereon and
forthwith pay such additional amount as may be necessary to ensure that the
net
amount actually received by each Bank and the Administrative Agent free and
clear of such taxes (including such taxes on such additional amount) is equal
to
the amount which that Bank or the Administrative Agent (as the case may be)
would have received had such withholding not been made. If the Administrative
Agent or any Bank pays any amount in respect of any such taxes, penalties or
interest the Borrower shall reimburse the Administrative Agent or that Bank
for
that payment on demand. If the Borrower pays any such taxes, penalties or
interest, it shall deliver official tax receipts evidencing that payment or
certified copies thereof to the Bank or Administrative Agent on whose account
such withholding was made (with a copy to the Administrative Agent if not the
recipient of the original) on or before the thirtieth day after payment. If
any
Bank or the Administrative Agent determines it has received or been granted
a
credit against or relief or remission for, or repayment of, any taxes paid
or
payable by it because of any taxes, penalties or interest paid by the Borrower
and evidenced by such a tax receipt, such Bank or Administrative Agent shall,
to
the extent it can do so without prejudice to the retention of the amount of
such
credit, relief, remission or repayment, pay to the Borrower such amount as
such
Bank or Administrative Agent determines is attributable to such deduction or
withholding and which will leave such Bank or Administrative Agent (after such
payment) in no better or worse position than it would have been in if the
Borrower had not been required to make such deduction or withholding. Nothing
in
this Agreement shall interfere with the right of each Bank and the
Administrative Agent to arrange its tax affairs in whatever manner it thinks
fit
nor oblige any Bank or the Administrative Agent to disclose any information
relating to its tax affairs or any computations in connection with such
taxes.
(b) U.S.
Withholding Tax Exemptions.
Each
Bank that is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) shall submit to the Borrower and the
Administrative Agent on or before the earlier of the date the initial Borrowing
is made hereunder and thirty (30) days after the date hereof, two duly
completed and signed copies of either Form W8BEN (relating to such Bank and
entitling it to a complete exemption from withholding under the Code on all
amounts to be received by such Bank, including fees, pursuant to the Credit
Documents and the Loans) or Form W8ECI (relating to all amounts to be
received by such Bank, including fees, pursuant to the Credit Documents and
the
Loans of the United States Internal Revenue Service. Thereafter and from time
to
time, each Bank shall submit to the Borrower and the Administrative Agent such
additional duly completed and signed copies of one or the other of such Forms
(or such successor forms as shall be adopted from time to time by the relevant
United States taxing authorities) as may be (i) requested by the Borrower in
a
written notice, directly or through the Administrative Agent, to such Bank
and
(ii) required under then current United States law or regulations to avoid
or
reduce United States withholding taxes on payments in respect of all amounts
to
be received by such Bank, including fees, pursuant to the Credit Documents
or
the Loans.
(c) Inability
of Bank to Submit Forms.
If any
Bank determines, as a result of any change in applicable law, regulation or
treaty, or in any official application or interpretation thereof, that it is
unable to submit to the Borrower or Administrative Agent any form or certificate
that such Bank is obligated to submit pursuant to subsection (b) of this
Section 11.1. or that such Bank is required to withdraw or cancel any such
form or certificate previously submitted or any such form or certificate
otherwise becomes ineffective or inaccurate, such Bank shall promptly notify
the
Borrower and Administrative Agent of such fact and the Bank shall to that extent
not be obligated to provide any such form or certificate and will be entitled
to
withdraw or cancel any affected form or certificate, as applicable.
34
Section
11.2 No
Waiver of Rights.
No
delay or failure on the part of the Administrative Agent or any Bank or on
the
part of the holder or holders of any Note in the exercise of any power or right
under any Credit Document shall operate as a waiver thereof, nor as an
acquiescence in any default, nor shall any single or partial exercise thereof
preclude any other or further exercise of any other power or right, and the
rights and remedies hereunder of the Administrative Agent, the Banks and the
holder or holders of any Notes are cumulative to, and not exclusive of, any
rights or remedies which any of them would otherwise have.
Section
11.3 Non-Business
Day.
If any
payment of principal or interest on any Loan or of any other Obligation shall
fall due on a day which is not a Business Day, interest or fees (as applicable)
at the rate, if any, such Loan or other Obligation bears for the period prior
to
maturity shall continue to accrue on such Obligation from the stated due date
thereof to and including the next succeeding Business Day, on which the same
shall be payable.
Section
11.4 Documentary
Taxes.
The
Borrower agrees that it will pay any documentary, stamp or similar taxes payable
in respect to any Credit Document, including interest and penalties, in the
event any such taxes are assessed, irrespective of when such assessment is
made
and whether or not any credit is then in use or available
hereunder.
Section
11.5 Survival
of Representations.
All
representations and warranties made herein or in certificates given pursuant
hereto shall survive the execution and delivery of this Agreement and the other
Credit Documents, and shall continue in full force and effect with respect
to
the date as of which they were made as long as any Loan or any other obligation
hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall
remain outstanding.
Section
11.6 Survival
of Indemnities.
All
indemnities and all other provisions relative to reimbursement to the Banks
of
amounts sufficient to protect the yield of the Banks with respect to the Loans,
including, but not limited to, Section 2.11, Section 9.3 and
Section 11.15 hereof, shall survive the termination of this Agreement and
the other Credit Documents and the payment of the Loans and all other
Obligations.
Section
11.7 Set-Off.
(a) In
addition to any rights now or hereafter granted under applicable law and not
by
way of limitation of any such rights, upon the occurrence of any Event of
Default, each Bank and each subsequent holder of any Note is hereby authorized
by the Borrower at any time or from time to time, without notice to the Borrower
or to any other Person, any such notice being hereby expressly waived, to set
off and to appropriate and to apply any and all deposits (general or special,
including, but not limited to, Indebtedness evidenced by certificates of
deposit, whether matured or unmatured, and in whatever currency denominated)
and
any other Indebtedness at any time held or owing by that Bank or that subsequent
holder to or for the credit or the account of the Borrower, whether or not
matured, against and on account of the obligations and liabilities of the
Borrower to that Bank or that subsequent holder under the Credit Documents,
including, but not limited to, all claims of any nature or description arising
out of or connected with the Credit Documents, irrespective of whether or not
(a) that Bank or that subsequent holder shall have made any demand hereunder
or
(b) the principal of or the interest on the Loans or Notes and other amounts
due
hereunder shall have become due and payable pursuant to Section 8 and
although said obligations and liabilities, or any of them, may be contingent
or
unmatured.
35
(b) Each
Bank
agrees with each other Bank a party hereto that if such Bank shall receive
and
retain any payment, whether by set-off or application of deposit balances or
otherwise, on any of the Loans or Reimbursement Obligations in excess of its
ratable share of payments on all such obligations then outstanding to the Banks,
then such Bank shall purchase for cash at face value, but without recourse,
ratably from each of the other Banks such amount of the Loans, or Reimbursement
Obligations, or participations therein, held by each such other Banks (or
interest therein) as shall be necessary to cause such Bank to share such excess
payment ratably with all the other Banks; provided,
however,
that if
any such purchase is made by any Bank, and if such excess payment or part
thereof is thereafter recovered from such purchasing Bank, the related purchases
from the other Banks shall be rescinded ratably and the purchase price restored
as to the portion of such excess payment so recovered, but without interest.
For
purposes of this Section 11.7(b), amounts owed to or recovered by, an
Issuing Bank in connection with Reimbursement Obligations in which Banks have
been required to fund their participation shall be treated as amounts owed
to or
recovered by such Issuing Bank as a Bank hereunder.
Section
11.8 Notices;
Effectiveness, Electronic Communications.
(a) Notices
Generally.
Except
in the case of notices and other communications expressly permitted to be given
by telephone (and except as provided in subsection (b) below), all notices
and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows, and all notices and other
communications expressly permitted hereunder to be given by telephone shall
be
made to the applicable telephone number, as follows:
(i) if
to the
Borrower, the Administrative Agent, the Issuing Bank, to the address, telecopier
number, electronic mail address or telephone number specified for such Person
on
Schedule
11.8;
and
(ii) if
to any
other Bank, to the address, telecopier number, electronic mail address or
telephone number specified in its Administrative Questionnaire.
Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic
Communications.
Notices
and other communications to the Banks and the Issuing Bank hereunder may be
delivered or furnished by electronic communication (including e-mail and
Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent, provided
that the
foregoing shall not apply to notices to any Bank or the Issuing Bank pursuant
to
Section 2 if such Bank or the Issuing Bank, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other communications to
it
hereunder by electronic communications pursuant to procedures approved by it,
provided
that
approval of such procedures may be limited to particular notices or
communications.
36
Unless
the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), provided
that if
such notice or other communication is not sent during the normal business hours
of the recipient, such notice or communication shall be deemed to have been
sent
at the opening of business on the next business day for the recipient, and
(ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient
at
its e-mail address as described in the foregoing clause (i) of notification
that such notice or communication is available and identifying the website
address therefor.
(c) The
Platform.
THE
PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED
BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS
OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN
OR
OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED
OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM
VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH
THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent
or any of its Related Parties (collectively, the “Agent
Parties”)
have
any liability to the Borrower, any Bank, the Issuing Bank or any other Person
for losses, claims, damages, liabilities or expenses of any kind (whether in
tort, contract or otherwise) arising out of the Borrower's or the Administrative
Agent’s transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined
by a court of competent jurisdiction by a final and nonappealable judgment
to
have resulted from the gross negligence or willful misconduct of such Agent
Party; provided,
however,
that in
no event shall any Agent Party have any liability to the Borrower, any Bank,
the
Issuing Bank or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual
damages).
(d) Change
of Address, Etc.
Each of
the Borrower, the Administrative Agent, the Issuing Bank may change its address,
telecopier or telephone number for notices and other communications hereunder
by
notice to the other parties hereto. Each other Bank may change its address,
telecopier or telephone number for notices and other communications hereunder
by
notice to the Borrower, the Administrative Agent, the Issuing Bank. In addition,
each Bank agrees to notify the Administrative Agent from time to time to ensure
that the Administrative Agent has on record (i) an effective address, contact
name, telephone number, telecopier number and electronic mail address to which
notices and other communications may be sent and (ii) accurate wire instructions
for such Bank.
(e) Reliance
by Administrative Agent, Issuing Bank and Banks. The
Administrative Agent, the Issuing Banks and the Banks shall be entitled to
rely
and act upon any notices (including telephonic Loan Notices) purportedly given
by or on behalf of the Borrower even if (i) such notices were not made in a
manner specified herein, were incomplete or were not preceded or followed by
any
other form of notice specified herein, or (ii) the terms thereof, as understood
by the recipient, varied from any confirmation thereof. The Borrower shall
indemnify the Administrative Agent, the Issuing Banks, each Bank and the Related
Parties of each of them from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly given
by
or on behalf of the Borrower. All telephonic notices to and other telephonic
communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
37
Section
11.9 Counterparts.
This
Agreement may be executed in any number of counterpart signature pages, and
by
the different parties on different counterparts, each of which when executed
shall be deemed an original but all such counterparts taken together shall
constitute one and the same instrument. Delivery of an executed counterpart
via
facsimile or other electronic means shall for all purposes be deemed as
effective as delivery of an original counterpart.
Section
11.10 Successors
and Assigns.
This
Agreement shall be binding upon the Borrower and its successors and assigns,
and
shall inure to the benefit of each of the Banks and the benefit of their
respective successors, and assigns, including any subsequent holder of any
Note.
The Borrower may not assign any of its rights or obligations under any Credit
Document without the written consent of all of the Banks.
Section
11.11 [Intentionally
Omitted].
Section
11.12 Assignments,
Participations, Etc.
(a) Successors
and Assigns Generally
.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns permitted hereby,
except that the Borrower may not assign or otherwise transfer any of its rights
or obligations hereunder without the prior written consent of each Bank and
no
Bank may assign or otherwise transfer any of its rights or obligations hereunder
except (i) to an Eligible Assignee in accordance with the provisions of
paragraph (b) of this Section, (ii) by way of participation in
accordance with the provisions of paragraph (d) of this Section or
(iii) by way of pledge or assignment of a security interest subject to the
restrictions of paragraph (f) of this Section (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing
in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in paragraph (d) of
this Section and, to the extent expressly contemplated hereby, the
affiliates of each of the Administrative Agent and the Banks) any legal or
equitable right, remedy or claim under or by reason of this
Agreement.
(b) Assignments
by Banks. Any
Bank
may at any time assign to one or more Eligible Assignees all or a portion of
its
rights and obligations under this Agreement (including all or a portion of
its
Revolving Credit Commitment and the Loans at the time owing to it); provided
that
(i) except
in
the case of an assignment of the entire remaining amount of the assigning Bank’s
Revolving Credit Commitment and the Loans at the time owing to it or in the
case
of an assignment to a Bank or an Affiliate of a Bank or an Approved Fund with
respect to a Bank, the aggregate amount of the Revolving Credit Commitment
(which for this purpose includes Loans outstanding thereunder) or, if the
applicable Revolving Credit Commitment is not then in effect, the principal
outstanding balance of the Loan of the assigning Bank subject to each such
assignment (determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent or, if “Trade Date”
is specified in the Assignment and Assumption, as of the Trade Date) shall
not
be less than $5,000,000 (and the remaining aggregate amount of the Revolving
Credit Commitment of such assigning Bank shall not be less than $5,000,000
after
giving effect to such assignment), unless each of the Administrative Agent
and,
so long as no Event of Default has occurred and is continuing, the Borrower
otherwise consents (each such consent not to be unreasonably withheld or
delayed); provided,
however,
that
concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single assignee (or to an
assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been
met;
38
(ii) each
partial assignment shall be made as an assignment of a proportionate part of
all
the assigning Bank’s rights and obligations under this Agreement with respect to
the Loan, L/C Obligations or the Revolving Credit Commitment
assigned;
(iii) any
assignment of a Revolving Credit Commitment must be approved by the
Administrative Agent and the Issuing Bank and, so long as no Event of Default
has occurred and is continuing, the Borrower, unless the Person that is the
proposed assignee is itself an Eligible Assignee, which approval shall not
be
unreasonably withheld;
(iv) the
parties to each assignment shall execute and deliver to the Administrative
Agent
an Assignment and Assumption, together with a processing and recordation fee
in
the amount, if any, required as set forth in Schedule 11.12; provided,
however,
that
the Administrative Agent may, in its sole discretion, elect to waive such
processing and recordation fee in the case of any assignment. The Eligible
Assignee, if it shall not be a Bank, shall deliver to the Administrative Agent
an Administrative Questionnaire;
(v) no
such
assignment shall be made to the Borrower or any of the Borrower’s Affiliates or
Subsidiaries; and
(vi) no
such
assignment shall be made to a natural person.
Subject
to acceptance and recording thereof by the Administrative Agent pursuant to
paragraph (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be
a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Bank under
this
Agreement, and the assigning Bank thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Bank’s rights and obligations under
this Agreement, such Bank shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 9.3 and 11.1 with respect to
facts and circumstances occurring prior to the effective date of such
assignment. Any assignment or transfer by a Bank of rights or obligations under
this Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Bank of a participation in such
rights and obligations in accordance with paragraph (d) of this
Section.
(c) Register.
The
Administrative Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at the Administrative Agent’s office identified in
Section 11.8 a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Banks, and the
Revolving Credit Commitments of, and principal amounts of the Loans owing to,
each Bank pursuant to the terms hereof from time to time (the “Register”).
The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Banks may treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Bank hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower and any Bank at any reasonable
time upon reasonable prior notice.
39
(d) Participations.
Any
Bank
may at any time, without the consent of, or notice to, the Borrower or the
Administrative Agent, sell participations to any Person (other than a natural
person or a Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each,
a “Participant”)
in all
or a portion of such Bank’s rights and/or obligations under this Agreement
(including all or a portion of its Revolving Credit Commitment and/or the Loans
owing to it); provided
that
(i) such Bank’s obligations under this Agreement shall remain unchanged,
(ii) such Bank shall remain solely responsible to the other parties hereto
for the performance of such obligations and (iii) the Borrower, the
Administrative Agent and the other Banks shall continue to deal solely and
directly with such Bank in connection with such Bank’s rights and obligations
under this Agreement.
Any
agreement or instrument pursuant to which a Bank sells such a participation
shall provide that such Bank shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided
that
such agreement or instrument may provide that such Bank will not, without the
consent of the Participant, agree to any amendment, modification or waiver
of
the type described in Section 11.13(i) that directly affects such
Participant. Subject to paragraph (e) of this Section, the Borrower agrees
that each Participant shall be entitled to the benefits of Section 2.11,
Section 9.3 and Section 11.7 to the same extent as if it were a Bank
and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. Each Bank granting a participation under this
Section 11.11(d) shall keep a register, meeting the requirements of
Treasury Regulation Section 5f.103-1(c), of each participant,
specifying such participant’s entitlement to payments of principal and interest
with respect to such participation.
(e) Limitations
upon Participant Rights. A
Participant shall not be entitled to receive any greater payment under
Section 2.11, Section 9.3 or Section 11.7 than the applicable
Bank would have been entitled to receive with respect to the participation
sold
to such Participant, unless the sale of the participation to such Participant
is
made with the Borrower’s prior written consent. A Participant that would be a
foreign Bank if it were a Bank shall not be entitled to the benefits of
Section 3.1 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrower,
to comply with Section 3.1(e) as though it were a Bank.
(f) Certain
Pledges. Any
Bank
may at any time pledge or assign a security interest in all or any portion
of
its rights under this Agreement to secure obligations of such Bank, including
without limitation any pledge or assignment to secure obligations to a Federal
Reserve Bank; provided
that no
such pledge or assignment shall release such Bank from any of its obligations
hereunder or substitute any such pledgee or assignee for such Bank as a party
hereto.
(g) Electronic
Execution of Assignments.
The
words “execution,” “signed,” “signature,” and words of like import in any
Assignment and Assumption shall be deemed to include electronic signatures
or
the keeping of records in electronic form, each of which shall be of the same
legal effect, validity or enforceability as a manually executed signature or
the
use of a paper-based recordkeeping system, as the case may be, to the extent
and
as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic
Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.
40
(h) Certain
Funding Arrangements. Notwithstanding
anything to the contrary contained herein, any Bank (a “Granting
Bank”)
may
grant to a special purpose funding vehicle (a “SPC”),
identified as such in writing from time to time by the Granting Bank to the
Administrative Agent and the Borrower, the option to provide to the Borrower
all
or any part of any Loan that such Granting Bank would otherwise be obligated
to
make to the Borrower pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to make any Loan, (ii) if an
SPC
elects not to exercise such option or otherwise fails to provide all or any
part
of such Loan, the Granting Bank shall be obligated to make such Loan pursuant
to
the terms hereof. The making of a Loan by an SPC hereunder shall utilize the
Revolving Credit Commitment of the Granting Bank to the same extent, and as
if,
such Loan were made by such Granting Bank. Each party hereto hereby agrees
that
no SPC shall be liable for any indemnity or similar payment obligation under
this Agreement (all liability for which shall remain with the Granting Bank).
In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that
is
one year and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any SPC, it will not institute against,
or
join any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under the
laws of the United States or any State thereof arising out of any claim relating
to the Credit Documents. In addition, notwithstanding anything to the contrary
contained in this Section 11.12(b), any SPC may (i) with notice to, but
without the prior written consent of, the Borrower and the Administrative Agent
and without paying any processing fee therefor, assign all or a portion of
its
interests in any Loan to the Granting Bank or to any financial institutions
(consented to by the Borrower and Administrative Agent) providing liquidity
and/or credit support to or for the account of such SPC to support the funding
or maintenance of Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer
or provider of any surety, guarantee or credit or liquidity enhancement to
such
SPC. This section may not be amended without the written consent of the
SPC.
Section
11.13 Amendments.
Any
provision of the Credit Documents may be amended or waived if, but only if,
such
amendment or waiver is in writing and is signed by (a) the Borrower, (b) the
Required Banks, and (c) if the rights or duties of the Administrative Agent
are
affected thereby, the Administrative Agent; provided
that:
(i) no
amendment or waiver pursuant to this Section 11.13 shall (A) increase, decrease
or extend any Revolving Credit Commitment of any Bank without the consent of
such Bank except as permitted by Section 2.1 or (B) reduce the amount of or
postpone any fixed date for payment of any principal of or interest on any
Loan
or Reimbursement Obligation or of any fee payable hereunder without the consent
of each Bank; and
(ii) no
amendment or waiver pursuant to this Section 11.13 shall, unless signed by
each Bank, change this Section 11.13, or the definition of Required Banks,
or affect the number of Banks required to take any action under the Credit
Documents.
Anything
in this Agreement to the contrary notwithstanding, if any time when the
conditions precedent set forth in Section 6.2 hereof to any Loan hereunder
are satisfied, any Bank shall fail to fulfill its obligations to make such
Loan
(any such Bank, a “Defaulting
Bank”)
then,
for so long as such failure shall continue, the Defaulting Bank shall (unless
the Borrower and the Required Banks determined as if the Defaulting Bank were
not a Bank hereunder, shall otherwise consent in writing) be deemed for all
purposes related to amendments, modifications, waivers or consents under this
Agreement (other than amendments or waivers referred to in clause (i) and
(ii) above) to have no Loans or Revolving Credit Commitments, shall not be
treated as a Bank hereunder when performing the computation of the Required
Banks.
41
Section
11.14 Headings.
Section headings used in this Agreement are for reference only and shall
not affect the construction of this Agreement.
Section
11.15 Legal
Fees, Other Costs and Indemnification.
The
Borrower agrees to pay all reasonable costs and expenses of the Administrative
Agent and the Arrangers in connection with the preparation and negotiation
of
the Credit Documents, including without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent and the Arrangers, in
connection with the preparation and execution of the Credit Documents, and
any
amendment, waiver or consent related hereto, whether or not the transactions
contemplated herein are consummated. The Borrower further agrees to indemnify
each Bank, the Administrative Agent, the Issuing Banks, and their respective
directors, agents, officers and employees, against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without limitation,
all reasonable expenses of litigation or preparation therefor, whether or not
the indemnified Person is a party thereto) which any of them may incur or
reasonably pay arising out of or relating to any Credit Document or any of
the
transactions contemplated thereby or the direct or indirect application or
proposed application of the proceeds of any Loan or Letter of Credit, other
than
those which arise from the gross negligence or willful misconduct of the party
claiming indemnification. The Borrower, upon demand by the Administrative Agent,
an Issuing Bank or a Bank at any time, shall reimburse the Administrative Agent,
such Issuing Bank or Bank for any reasonable legal or other expenses (including
reasonable allocable fees and expenses of in-house counsel) incurred in
connection with investigating or defending against any of the foregoing except
if the same is directly due to the gross negligence or willful misconduct of
the
party to be indemnified.
Section
11.16 [Reserved].
Section
11.17 Entire
Agreement.
The
Credit Documents constitute the entire understanding of the parties thereto
with
respect to the subject matter thereof and any prior or contemporaneous
agreements, whether written or oral, with respect thereto are superseded
thereby.
Section
11.18 Construction.
The
parties hereto acknowledge and agree that neither this Agreement nor the other
Credit Documents shall be construed more favorably in favor of one than the
other based upon which party drafted the same, it being acknowledged that all
parties hereto contributed substantially to the negotiation of this Agreement
and the other Credit Documents.
Section
11.19 Governing
Law.
This
Agreement and the other Credit Documents, and the rights and duties of the
parties hereto, shall be construed and determined in accordance with the
internal laws of the State of Illinois.
Section
11.20 SUBMISSION
TO JURISDICTION; WAIVER OF JURY TRIAL.
THE
BORROWER HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS AND OF ANY ILLINOIS STATE
COURT SITTING IN THE CITY OF CHICAGO FOR PURPOSES OF ALL LEGAL PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR
THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. THE BORROWER IRREVOCABLY WAIVES,
TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT
AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM. THE BORROWER HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
ANY
CREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.
Section
11.21 Confidentiality.
Each
of
the Administrative Agent, the Banks and the Issuing Banks agrees to maintain
the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective
partners, directors, officers, employees, agents, advisors and representatives
and to any direct or indirect contractual counterparty (or such contractual
counterparty's professional advisor) under any swap contract relating to Loans
outstanding under this Agreement (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority purporting to have jurisdiction
over it or its Affiliates (including any self-regulatory authority, such as
the
National Association of Insurance Commissioners), (c) to the extent required
by
applicable laws or regulations or by any subpoena or similar legal process,
(d)
to any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Credit Document or any action or proceeding
relating to this Agreement or any other Credit Document or the enforcement
of
rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any assignee
of or Participant in, or any prospective assignee of or Participant in, any
of
its rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating
to
the Borrower and its obligations, (g) with the consent of the Borrower or (h)
to
the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the Administrative
Agent,
any
Bank, the Issuing Banks
or any
of
their
respective Affiliates
on a
nonconfidential basis from a source other than the Borrower.
For
purposes of this Section, “Information”
means
all information received from the Borrower or any Subsidiary relating to the
Borrower, other than any such information that is available to the
Administrative Agent, any Bank or the Issuing Banks on a nonconfidential basis
prior to disclosure by the Borrower or any Subsidiary, provided
that, in
the case of information received from the Borrower or any Subsidiary after
the
date hereof, such information is clearly identified at the time of delivery
as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord
to
its own confidential information.
Each
of
the Administrative Agent, the Banks and the Issuing Banks acknowledges that
(a)
the Information may include material non-public information concerning the
Borrower or a Subsidiary, as the case may be, (b) it has developed compliance
procedures regarding the use of material non-public information and (c) it
will
handle such material non-public information in accordance with applicable law,
including Federal and state securities laws.
Section
11.22 Patriot
Act.
As
required by federal law or the Administrative Agent or a Bank’s policies and
practices, the Administrative Agent or a Bank shall need to collect, and the
Borrower shall deliver, upon reasonable request of the Administrative Agent
or
any Bank, certain customer identification information and documentation in
connection with opening or maintaining accounts or establishing or continuing
to
provide services.
42
Section
11.23 Rights
and Liabilities of Syndication Agent and Arrangers.
Neither
the Syndication Agent nor any Arranger have any special rights, powers,
obligations, liabilities, responsibilities or duties under this Agreement as
a
result of acting in the capacity of Syndication Agent or Arranger, as
applicable, other than those applicable to them in their capacity as Banks
hereunder (if any). Without limiting the foregoing, neither the Syndication
Agent nor any Arranger shall have or be deemed to have a fiduciary relationship
with any Bank. Each Bank hereby makes the same acknowledgments and undertakings
with respect to the Syndication Agent and each Arranger as it makes with respect
to the liability of the Administrative Agent and any directors, officers, agents
and employees of the Administrative Agent in Section 10.
Section
11.24 No
Advisory or Fiduciary Responsibility.
In
connection with all aspects of each transaction contemplated hereby, the
Borrower acknowledges and agrees that: (a) the credit facility provided for
hereunder and any related arranging or other services in connection therewith
(including in connection with any amendment, waiver or other modification hereof
or of any other Credit Document) are an arm’s-length commercial transaction
between the Borrower and its Affiliates, on the one hand, and the Administrative
Agent and the Arrangers, on the other hand, and the Borrower is capable of
evaluating and understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated hereby and by the other Credit
Documents (including any amendment, waiver or other modification hereof or
thereof); (b) in connection with the process leading to such transaction, the
Administrative Agent and the Arrangers each is and has been acting solely as
a
principal and is not the financial advisor, agent or fiduciary, for the Borrower
or any of its Affiliates, stockholders, creditors or employees or any other
Person; (c) neither the Administrative Agent nor the Arranger has assumed or
will assume an advisory, agency or fiduciary responsibility in favor of the
Borrower with respect to any of the transactions contemplated hereby or the
process leading thereto, including with respect to any amendment, waiver or
other modification hereof or of any other Credit Document (irrespective of
whether the Administrative Agent or the Arrangers has advised or is currently
advising the Borrower or any of its Affiliates on other matters) and neither
the
Administrative Agent nor the Arrangers has any obligation to the Borrower or
any
of its Affiliates with respect to the transactions contemplated hereby except
those obligations expressly set forth herein and in the other Credit Documents;
(d) the Administrative Agent and the Arrangers and their respective Affiliates
may be engaged in a broad range of transactions that involve interests that
differ from those of the Borrower and its Affiliates, and neither the
Administrative Agent nor the Arrangers has any obligation to disclose any of
such interests by virtue of any advisory, agency or fiduciary relationship;
and
(e) the Administrative Agent and the Arrangers have not provided and will not
provide any legal, accounting, regulatory or tax advice with respect to any
of
the transactions contemplated hereby (including any amendment, waiver or other
modification hereof or of any other Credit Document) and the Borrower has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate. The Borrower hereby waives and releases, to the
fullest extent permitted by law, any claims that it may have against the
Administrative Agent and the Arrangers with respect to any breach or alleged
breach of agency or fiduciary duty.
-
Remainder of Page Intentionally Left Blank; Signature Pages Follow
-
43
In
Witness Whereof, the parties hereto have caused this Credit Agreement to be
duly
executed and by their duly authorized officers as of the day and year first
above written.
BORROWER
|
|
PEOPLES
ENERGY CORPORATION,
|
|
|
as
Borrower
|
|
|
|
|
|
By:
/s/ X. X. Xxxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxxx
|
|
|
Title:
Vice President &
Treasurer
|
ADMINSTRATIVE
AGENT
|
|
BANK
OF AMERICA, N.A.,
|
|
|
as
Administrative Agent
|
|
|
|
|
|
By:
/s/ Xxxx XxxXxxxx
|
|
|
Name:
Xxxx XxxXxxxx
|
|
|
Title:
Vice President, Agency Management Officer
III
|
BANKS
|
|
BANK
OF AMERICA, N.A.,
|
|
|
as a
Bank and an Issuing Bank
|
|
|
|
|
|
By:
/s/ Xxxxxxx X. Xxxx, Xx.
|
|
|
Name:
Xxxxxxx X. Xxxx, Xx.
|
|
|
Title:
Managing Director
|
|
|
JPMORGAN
CHASE BANK, N.A.,
|
|
|
as a
Bank
|
|
|
|
|
|
By:
/s/ Xxxxxxx Xxxxx
|
|
|
Name:
Xxxxxxx Xxxxx
|
|
|
Title:
Assistant Vice
President
|
|
|
ABN
AMRO BANK, N.V.,
|
|
|
as a
Bank
|
|
|
|
|
|
By:
/s/ Xxxx Xxxx
|
|
|
Name:
Xxxx Xxxx
|
|
|
Title:
Director
|
By: /s/ M. Xxxxx Xxxx | ||
Name: M. Xxxxx Xxxx | ||
Title: Assistant Vice President |
|
|
THE
BANK OF TOKYO-MITSUBISHI UFJ,
LTD.,
CHICAGO BRANCH,
|
|
|
as a
Bank
|
|
|
|
|
|
By:
/s/ Tsuguyuki Umene
|
|
|
Name:
Tsuguyuki Umene
|
|
|
Title:
Deputy General Manager
|
|
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
|
as a
Bank
|
|
|
|
|
|
By:
/s/ R. Xxxxxxx Xxxxxx
|
|
|
Name:
R. Xxxxxxx Xxxxxx
|
|
|
Title: Vice
President
|
|
|
CITIBANK,
N.A.,
|
|
|
as a
Bank
|
|
|
|
|
|
By:
/s/ Xxxxx X. Xxxx
|
|
|
Name:
Xxxxx X. Xxxx
|
|
|
Title:
Attorney-in-Fact
|
Peoples
Energy Corporation
Credit
Agreement
51
|
|
XXXXXX
XXXXXXX BANK,
|
|
|
as a
Bank
|
|
|
|
|
|
By:
/s/ Xxxxxx Xxxxxx
|
|
|
Name:
Xxxxxx Xxxxxx
|
|
|
Title: Vice
President, Xxxxxx Xxxxxxx
Bank
|
Peoples
Energy Corporation
Credit
Agreement
52
|
|
THE
NORTHERN TRUST COMPANY,
|
|
|
as a
Bank
|
|
|
|
|
|
By:
/s/ Xxxxx Xxxxxx
|
|
|
Name:
Xxxxx Xxxxxx
|
|
|
Title: Vice
President
|
Peoples
Energy Corporation
Credit
Agreement
53
|
|
SUNTRUST
BANK,
|
|
|
as a
Bank
|
|
|
|
|
|
By:
/s/ Xxxxxx X. Xxxxxxxxxxx
|
|
|
Name:
Xxxxxx X. Xxxxxxxxxxx
|
|
|
Title: Vice
President
|
Peoples
Energy Corporation
Credit
Agreement
54
|
|
XXXXXX
XXXXXXX FINANCING, INC.,
|
|
|
as a
Bank
|
|
|
|
|
|
By:
/s/ Xxx X. Xxxxxxx
|
|
|
Name:
Xxx X. Xxxxxxx
|
|
|
Title:
Director
|
Peoples
Energy Corporation
Credit
Agreement
55
|
|
FIFTH
THIRD BANK (CHICAGO), A
MICHIGAN
BANK CORPORATION,
|
|
|
as a
Bank
|
|
|
|
|
|
By:
/s/ Xxx Xxxxxxxxxxx
|
|
|
Name:
Xxx Xxxxxxxxxxx
|
|
|
Title: Vice
President
|
Peoples
Energy Corporation
Credit
Agreement
56
|
|
UBS
LOAN FINANCE LLC,
|
|
|
as a
Bank
|
|
|
|
|
|
By:
/s/ Xxxxxxx X. Xxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxx
|
|
|
Title:
Director
|
|
|
By:
/s/ Xxxx X. Xxxx
|
|
|
Name:
Xxxx X. Xxxx
|
|
|
Title:
Associate Director
|
Peoples
Energy Corporation
Credit
Agreement
57
SCHEDULE
1.1
INTEREST
RATES AND FEES
S
& P/ Xxxxx'x Senior
|
A/A2
or
|
A-/A3
|
BBB+/
|
BBB/
|
BBB-/
|
lower
than
|
Unsecured
Rating
|
higher
|
Xxx0
|
Xxx0
|
Xxx0
|
XXX-/
Xxx0
|
|
Commitment
Fee Rate
|
6.0
|
7.0
|
8.0
|
10.0
|
12.5
|
20.0
|
Base
Rate Margin
|
0.0
|
0.0
|
0.0
|
0.0
|
0.0
|
0.0
|
LIBOR
Margin
|
25.0
|
30.0
|
40.0
|
50.0
|
62.5
|
87.5
|
Any
change in a Credit Rating of the Borrower (and if applicable, any change in
fees
or interest payable hereunder based on such Credit Rating), shall be effective
as of the date such change is announced by the applicable rating
agency.
*
If
the Borrower is split-rated and the ratings differential is one level, the
higher rating will apply. If the Borrower is split-rated and the ratings
differential is two levels or more, the rating level one below the higher level
will apply. If at any time the Borrower has no Xxxxx'x rating or no Standard
& Poors' rating, the "Lower than BBB-/Baa3" level will apply; provided,
however, that in such event the Borrower may propose an alternative rating
agency or mechanism in replacement thereof, subject to the written consent
of
the Required Banks, such consent not to be unreasonably withheld, delayed or
conditioned.
SCHEDULE
2.1
REVOLVING
CREDIT COMMITMENT
Bank
|
Revolving
Credit
Commitment
|
Revolving
Credit
Commitment
Percentage
|
Bank
of America, N.A.
|
$45,000,000.00
|
11.250000000%
|
JPMorgan
Chase Bank, N.A.
|
$45,000,000.00
|
11.250000000%
|
ABN
AMRO Bank, N.V.
|
$45,000,000.00
|
11.250000000%
|
The
Bank of Tokyo - Mitsubishi UFJ, Ltd., Chicago Branch
|
$35,000,000.00
|
8.750000000%
|
U.S.
Bank National Association
|
$35,000,000.00
|
8.750000000%
|
Citibank,
N.A.
|
$30,000,000.00
|
7.500000000%
|
Xxxxxx
Xxxxxxx Bank
|
$30,000,000.00
|
7.500000000%
|
The
Northern Trust Company
|
$30,000,000.00
|
7.500000000%
|
SunTrust
Bank
|
$30,000,000.00
|
7.500000000%
|
Xxxxxx
Xxxxxxx Financing, Inc.
|
$25,000,000.00
|
6.250000000%
|
Fifth
Third Bank (Chicago), A Michigan Bank Corporation
|
$25,000,000.00
|
6.250000000%
|
UBS
Loan Finance LLC
|
$25,000,000.00
|
6.250000000%
|
Total
|
$400,000,000.00
|
100.000000000%
|
SCHEDULE
11.8
NOTICES
BORROWER
Peoples
Energy Corporation
000
Xxxx
Xxxxxxxx Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Vice President, Finance
Facsimile:
000.000.0000
Telephone:
000.000.0000
ADMINISTRATIVE
AGENT
Agency
Servicing contact (daily borrowing/repaying activity):
Xxxxx
Xxxxxx
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Wire
Instructions
Bank
of
America, N.A.
New
York,
NY
ABA#:
000-000-000
Acct.#
000-000-000-0000
Attn:
Credit Services
Ref:
People's Energy
Agency
Management contact:
Xxxx
Xxx
Xxxxx
Agency
Officer
Bank
of
America
000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Mail
Code: MA5-100-11-02
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxx.x.xxxxxxxx@xxxxxxxxxxxxx.xxx
Letters
of Credit contact:
Xx
Xxxxxx
Bank
of
America
0
Xxxxx
Xxx
Mail
Code: PA6-580-02-30
Scranton,PA
18507
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxxxx.xxxxxx@xxxxxxxxxxxxx.xxx
SCHEDULE
11.12
PROCESSING
AND RECORDATION FEES
The
Administrative Agent will charge a processing and recordation fee (an
"Assignment
Fee")
in the
amount of $2,500 for each assignment; provided,
however,
that in
the event of two or more concurrent assignments to members of the same Assignee
Group (which may be effected by a suballocation of an assigned amount among
members of such Assignee Group) or two or more concurrent assignments by members
of the same Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group), the Assignment Fee will be $2,500
plus the amount set forth below:
Transaction
|
Assignment
Fee
|
First
four concurrent assignments or
|
-0-
|
suballocations
to members of an Assignee Group
|
|
(or
from members of an Assignee Group, as
|
|
applicable)
|
|
Each
additional concurrent assignment or
|
$500
|
suballocation
to a member of such Assignee
|
|
Group
(or from a member of such Assignee
|
|
Group,
as applicable)
|
EXHIBIT
2.10
FORM
OF NOTE
__________
___, 2006
FOR
VALUE
RECEIVED, the undersigned, Peoples Energy Corporation, an Illinois corporation
(the "Borrower"),
promises
to pay to the order of [___________] (the "Bank")
on
the
Termination Date of the hereinafter defined Credit Agreement, or such earlier
date as provided in the Credit Agreement or this Note, of Bank of America,
N.A.,
in U.S. Dollars, in accordance with Section 4.1 of the Credit Agreement, the
aggregate unpaid principal of all Loans made by the Bank to the Borrower
pursuant to the Credit Agreement, together with interest on the principal amount
of each Loan from time to time outstanding hereunder at the rates, and payable
in the manner and on the dates, specified in the Credit Agreement.
The
Bank
shall record on its books or records or on a schedule attached to this Note,
which is a part hereof, each Loan made by it pursuant to the Credit Agreement,
together with all payments of principal and interest and the principal balances
from time to time outstanding hereon, whether the Loan is a Base Rate Loan
or a
LIBOR Loan and the interest rate and Interest Period applicable thereto,
provided that prior to the transfer of this Note all such amounts shall be
recorded on a schedule attached to this Note. The record thereof, whether shown
on such books or records or on a schedule to this Note, shall be prima
facie evidence
of the same, provided, however, that the failure of the Bank to record any
of
the foregoing or any error in any such record shall not limit or otherwise
affect the obligation of the Borrower to repay all Loans made to it pursuant
to
the Credit Agreement together with accrued interest thereon.
This
Note
is one of the Notes referred to in the Credit Agreement dated as of ________
___, 2006, by and among the Borrower, Bank of America, N.A., as Administrative
Agent, and the Banks party thereto (the "Credit
Agreement"), and
this
Note and the holder hereof are entitled to all the benefits provided for thereby
or referred to therein, to which Credit Agreement reference is hereby made
for a
statement thereof. This Note may only be conveyed, transferred, assigned or
otherwise negotiated to a holder in accordance with the terms of the Credit
Agreement. All defined terms used in this Note, except terms otherwise defined
herein, shall have the same meaning as in the Credit Agreement. This Note shall
be governed by and construed in accordance with the internal laws of the State
of Illinois.
Prepayments
may be made hereon and this Note may be declared due prior to the expressed
maturity hereof, all in the events, on the terms and in the manner as provided
for in the Credit Agreement.
The
Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and
non-payment of this Note.
THIS
NOTE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH
THE
LAWS OF THE STATE OF ILLINOIS.
PEOPLES
ENERGY CORPORATION
|
|
By:
________________________________
|
|
Name:
______________________________
|
|
Title:
_______________________________
|
EXHIBIT
6.1
FORM
OF OPINION
[LETTERHEAD
OF BORROWER'S COUNSEL]
June
13,
2006
The
financial institutions party to that certain
Credit
Agreement dated as of June 13,2006
c/o
Bank
of America, N.A., as Administrative Agent
000
Xxxxxxx Xxxxxx, XX0-000-00-00
Xxxxxx,
XX 00000
Re:
Peoples
Energy Corporation
Ladies
and Gentlemen:
We
have
acted as legal counsel to Peoples Energy Corporation, an Illinois corporation
(the "Borrower"),
in
connection with the transactions contemplated by the unsecured revolving credit
facility established by that certain Credit Agreement dated as of the date
hereof (the "Credit
Agreement")
among
the Borrower, the financial institutions from time to time party thereto (each
a
"Bank,"
and
collectively the "Banks"),
Bank
of America, N.A., in its capacity as administrative agent for the Banks,
JPMorgan Chase Bank, N.A., in its capacity as syndication agent for the Banks,
ABN AMRO Incorporated, U.S. Bank National Association, The Bank of
Tokyo-Mitsubishi, Ltd. Chicago Branch, Banc of America Securities LLC, and
X.X.
Xxxxxx Securities Inc. This opinion is furnished to you pursuant to Section
6.1(a) of the Credit Agreement. Unless otherwise defined herein, terms used
herein have the meanings provided for in the Credit Agreement.
I.
Documents
Reviewed
In
connection with this opinion letter, we have examined the following
documents:
(a)
the
Credit Agreement dated the date hereof, including the exhibits and schedules
thereto; and
(b)
the
Notes delivered pursuant to Section 6.1(d) of the Credit Agreement.
The
documents referred to in clauses
(a) and
(b)
above
are referred to collectively as the "Subject
Documents".
In
addition, we have examined the following:
(i)
originals, or copies identified to our satisfaction as being true copies, of
such records, documents and other instruments as we have deemed necessary for
the purposes of this opinion letter;
(ii)
a
certificate from the secretary or other appropriate representative of the
Borrower certifying in each instance as to true and correct copies of the
Articles of Incorporation and By-Laws of the Borrower (the "Organizational
Documents")
and
copies of the resolutions adopted by the Board of Directors, and as to the
incumbency and specimen signatures of officers or other persons authorized
to
execute the Subject Documents on behalf of the Borrower;
(iii)
a
certificate issued by the Secretary of State of the State of Illinois attesting
to the continued existence and good standing of the Borrower in such state
(the
"Good
Standing Certificate");
(iv)
a
certificate of the Chief Financial Officer of the Borrower delivered pursuant
to
Section 6.1(f) of the Credit Agreement;
(v)
a
Compliance Certificate delivered pursuant to Section 6.1(i) of the Credit
Agreement; and
(vi)
a
Certificate of the Borrower, a copy of which is attached as Annex
A
hereto
(the "Borrower's
Certificate"),
together with the agreements and instruments referred to therein (collectively,
the "Reviewed
Agreements").
II.
Assumptions
Underlying Our Opinions
For
all
purposes of the opinions expressed herein, we have assumed, with your permission
and without independent investigation, that:
(a)
Factual
Matters.
With
regard to factual matters, to the extent that we have reviewed and relied upon
(i) certificates of the Borrower, (ii) representations of the Borrower set
forth
in the Subject Documents and (iii) certificates and assurances from public
officials, all of such certificates, representations and assurances are
accurate;
(b)
Contrary
Knowledge of Addressee.
No
addressee of this opinion letter has any actual knowledge that any of our
factual assumptions or opinions is inaccurate;
(c)
Signatures.
The
signatures of individuals signing the Subject Documents (other than individuals
signing on behalf of the Borrower) are genuine and authorized;
(d)
Authentic
and Conforming Documents.
All
documents submitted to us as originals are authentic, complete and accurate
and
all documents submitted to us as copies conform to authentic original
documents;
(e)
Capacity
of Certain Parties.
All
parties to the Subject Documents (other than the Borrower) have the capacity
and
full power and authority to execute, deliver and perform the Subject Documents
and the documents required or permitted to be delivered and performed
thereunder;
(f)
Subject
Documents Binding on Certain Parties.
All of
the Subject Documents and the documents required or permitted to be delivered
thereunder have been duly authorized by all necessary corporate or other action
on the part of the parties thereto (other than the Borrower), have been duly
executed and delivered by such parties and are legal, valid and binding
obligations enforceable against such parties in accordance with their
terms;
(g)
Consents
for Certain Parties.
All
necessary consents, authorizations, approvals, permits or certificates
(governmental and otherwise) which are required as a condition to the execution
and delivery of the Subject Documents by the parties thereto (other than the
Borrower) and to the consummation by such parties of the transactions
contemplated thereby have been obtained; and
(h)
Accurate
Description of Parties' Understanding.
The
Subject Documents accurately describe and contain the mutual understanding
of
the parties, and there are no oral or written statements or agreements that
modify, amend or vary, or purport to modify, amend or vary, any of the terms
thereof.
III.
Our
Opinions
Based
on
and subject to the foregoing and the other limitations, assumptions,
qualifications and exclusions set forth in this opinion letter, we are of the
opinion that:
(a)
Organizational
Status.
Based
solely upon the Good Standing Certificate, the Borrower is validly existing
and
in good standing under the laws of the State of Illinois as of the date set
forth in the Good Standing Certificate.
(b)
Power
and Authority.
The
Borrower has the organizational power and authority to execute, deliver and
perform the terms and provisions of each Subject Document and has taken all
necessary organizational action to authorize the execution, delivery and
performance thereof.
(c)
Execution,
Validity and Enforceability.
The
Borrower has duly executed and delivered each Subject Document and each Subject
Document constitutes its valid, binding and enforceable obligation.
(d)
Noncontravention.
Neither
the execution, delivery and performance by the Borrower of any Subject Document,
nor the compliance by the Borrower with the terms and provisions thereof: (i)
violates any present law, statute or regulation of the State of Illinois or
the
United States that, in each case, is applicable to the Borrower; (ii) violates
any provision of the Organizational Documents of the Borrower; or (iii) results
in any breach of any of the terms of, or constitutes a default under, any of
the
Reviewed Agreements or results in the creation or imposition of any lien,
security interest or other encumbrance (except as contemplated by the Subject
Documents) upon any assets of the Borrower pursuant to the terms of any of
the
Reviewed Agreements.
(e)
Governmental
Approvals.
No
consent, approval or authorization of, or filing with, any governmental
authority of the State of Illinois or the United States that, in each case,
is
applicable to the Borrower is required for (i) the due execution, delivery
and
performance by the Borrower of any Subject Document or (ii) the validity,
binding effect or enforceability of any Subject Document, except for such
consents, approvals, authorizations or filings (A) as have previously been
obtained by the Borrower and (B) as may be required to be obtained or made
by
the Bank as a result of its involvement in the transactions contemplated by
the
Subject Documents.
(f)
The
Borrower is not a public utility within the meaning of Section 3-105 of the
Illinois Public Utilities Act (the "Act"), 220 ILCS 5/1-101 et
seq., 220
ILCS
5/3-105.
IV.
Exclusions
We
call
your attention to the following matters as to which we express no
opinion:
(a)
Indemnification.
Any
agreement of the Borrower in a Subject Document relating to indemnification,
contribution or exculpation from costs, expenses or other liabilities that
is
contrary to public policy or applicable law;
(b)
Fraudulent
Transfer.
The
effect, if applicable, of fraudulent conveyance, fraudulent transfer and
preferential transfer laws and principles of equitable
subordination;
(c)
Jurisdiction,
Venue, etc.
Any
agreement by the Borrower in a Subject Document to waive trial by jury, to
effect service of process in any particular manner or to establish evidentiary
standards, and any agreement of the Borrower regarding the choice of law
governing a Subject Document;
(d)
Trust
Relationship.
The
creation of any trust relationship by the Borrower on behalf of any
Bank;
(e)
Certain
Laws.
State
securities and Blue Sky laws or regulations, federal and state banking laws
and
regulations, pension and employee benefit laws and regulations, federal and
state environmental laws and regulations, federal and state tax laws and
regulations, federal and state health and occupational safety laws and
regulations, building code, zoning, subdivision and other laws and regulations
governing the development, use and occupancy of real property, federal and
state
antitrust and unfair competition laws and regulations, and the effect of any
of
the foregoing on any of the opinions expressed herein;
(f)
Local
Ordinances.
The
ordinances, statutes, administrative decisions, orders, rules and regulations
of
any municipality, county, special district or other political subdivision of
the
State of Illinois;
(g)
Certain
Agreements of Borrower.
Any
agreement of the Borrower in a Subject Document providing for:
(i)
specific performance of the Borrower's obligations;
(ii)
establishment of a contractual rate of interest payable after
judgment;
(iii)
the
granting of any power of attorney; or
(iv)
survival of liabilities and obligations of any party under any of the Subject
Documents arising after the effective date of termination of the Credit
Agreement; or
(h)
Remedies.
Any
provision in any Subject Document to the effect that rights or remedies are
not
exclusive, that every right or remedy is cumulative and may be exercised in
addition to any other right or remedy, that the election of some particular
remedy does not preclude recourse to one or more others or that failure to
exercise or delay in exercising rights or remedies will not operate as a waiver
of any such right or remedy.
V.
Qualifications
and Limitations
The
opinions set forth above are subject to the following qualifications and
limitations:
(a)
Applicable
Law.
Our
opinions are limited to the federal law of the United States and the laws of
the
State of Illinois, and we do not express any opinion concerning any other
law.
(b)
Bankruptcy.
Our
opinions are subject to the effect of any applicable bankruptcy, insolvency
(including, without limitation, laws relating to preferences and fraudulent
transfers or conveyances), reorganization, moratorium and other similar laws
affecting creditors' rights generally.
(c)
Equitable
Principles.
Our
opinions are subject 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. In applying such principles, a court, among other things, might limit
the availability of specific equitable remedies (such as injunctive relief
and
the remedy of specific performance), might not allow a creditor to accelerate
maturity of debt or exercise other remedies upon the occurrence of a default
deemed immaterial or for non-credit reasons or might decline to order a debtor
to perform covenants in a Subject Document. Further, a court may refuse to
enforce a covenant if and to the extent that it deems such covenant to be
violative of applicable public policy, including, for example, provisions
requiring indemnification of the Banks against liability for its own wrongful
or
negligent acts.
(d)
Noncontravention
and Governmental Approvals.
With
respect to the opinions expressed in paragraphs
III-(d)(i),
III-(e)
and
III-(f),
our
opinions are limited (i) to our knowledge, if any, of the Borrower's specially
regulated business activities and properties based solely upon the Borrower's
Certificate in respect of such matters and without any independent investigation
or verification on our part and (ii) to our review of only those laws and
regulations that, in our experience, are normally applicable to transactions
of
the type contemplated by the Subject Documents. For this paragraph, "our
knowledge" means the actual knowledge of the particular Ungaretti & Xxxxxx
LLP attorneys who have represented the Borrower in connection with the Subject
Documents and who have given substantive attention to the preparation and
negotiation thereof - namely, Xxxx X. Xxxxxx and Xxxxxxx X. Xxxxxxx. Except
as
expressly set forth herein, we have not undertaken any independent investigation
(including, without limitation, conducting any review, search or investigation
of any public files or records or dockets or any review of our files) to
determine the existence or absence of any facts, and no inference as to our
knowledge concerning such facts should be drawn from our reliance on the same
in
connection with the preparation and delivery of this opinion
letter.
(e)
Reviewed
Agreements.
With
respect to our opinion in paragraph
III-(d)(iii),
we have
assumed that the law governing each Reviewed Agreement would have the same
effect as the law of the State of Illinois, and we express no opinion as to
any
violation not readily ascertainable from the face of any Reviewed Agreement
or
arising from any cross-default provision insofar as it relates to a default
under an agreement that is not a Reviewed Agreement or arising under a covenant
of a financial or numerical nature or requiring computation.
(f)
Material
Changes to Terms.
Provisions in the Subject Documents which provide that any obligations of the
Borrower will not be affected by the action or failure to act on the part of
the
Banks or by an amendment or waiver of the provisions contained in the other
Subject Documents might not be enforceable under circumstances in which such
action, failure to act, amendment or waiver so materially changes the essential
terms of the obligations that, in effect, a new contract has arisen between
the
Banks and the Borrower.
(g)
Incorporated
Documents.
This
opinion does not relate to (and we have not reviewed) any documents or
instruments other than the Subject Documents and the Reviewed Agreements, and
we
express no opinion as to such other documents or instruments (including, without
limitation, any
documents
or instruments referenced or incorporated in any of the Subject Documents)
or as
to the interplay between the Subject Documents and any such other documents
and
instruments.
(h)
Mathematical
Calculations.
We have
made no independent verification of any of the numbers, schedules, formulae
or
calculations in the Subject Documents, and we render no opinion with regard
to
the accuracy, validity or enforceability of any of them.
VI.
Reliance
on Opinions
The
foregoing opinions are being furnished to the Administrative Agent and the
Banks
for the purpose referred to in the first paragraph of this opinion letter,
and
this opinion letter is not to be furnished to any other person or entity or
used
or relied upon for any other purpose without our prior written consent;
provided,
however,
this
opinion letter may be relied upon by any Eligible Assignee who becomes a Bank
under the Credit Agreement. The opinions set forth herein are made as of the
date hereof, and we assume no obligation to supplement this opinion letter
if
any applicable laws change after the date hereof or if we become aware after
the
date hereof of any facts that might change the opinions expressed
herein.
Very
truly yours,
|
|
UNGARETTI
& XXXXXX LLP
|
Annex
A
[To
be
attached]
EXHIBIT
7.3
FORM
OF COMPLIANCE CERTIFICATE
This
Compliance Certificate is furnished to Bank of America, N.A., as Administrative
Agent pursuant to the Credit Agreement (the "Credit
Agreement") dated
as
of ________ ___, 2006, by and among Peoples Energy Corporation, the Banks from
time to time party thereto, and Bank of America, N.A., as Administrative Agent.
Unless otherwise defined herein, the terms used in this Compliance Certificate
have the meanings ascribed thereto in the Credit Agreement.
THE
UNDERSIGNED HEREBY CERTIFIES THAT:
1. I
am the
duly elected or appointed __________ of Peoples Energy Corporation;
2. I
have
reviewed the terms of the Credit Agreement and I have made, or have caused
to be
made under my supervision, a detailed review of the transactions and conditions
of Peoples Energy Corporation and its Subsidiaries during the accounting period
covered by the attached financial statements;
3. The
examinations described in paragraph 2 did not disclose, and I have no knowledge
of, the existence of any condition or event which constitutes a Default or
an
Event of Default during or at the end of the accounting period covered by the
attached financial statements or as of the date of this Certificate, except
as
set forth below. Without limitation to the foregoing, except as noted below
the
Borrower is in compliance with Section 7.5 and Section 7.6 of the Credit
Agreement; and
4. Schedule
I attached hereto sets forth (i) financial data and computations evidencing
compliance with certain covenants of the Credit Agreement, all of which data
and
computations are true, complete and correct, and are made in accordance with
the
terms of the Credit Agreement, and (ii) the list of Subsidiaries in existence
as
of the date hereof.
Described
below are the exceptions, if any, to paragraph 3 by listing, in detail, the
nature of the condition or event, the period during which it has existed and
the
action which the Borrower has taken, is taking, or proposes to take with respect
to each such condition or event:
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
The
foregoing certifications, together with the list set forth in Schedule 1 hereto
and the financial statements delivered with this Certificate in support hereof,
are made and delivered this ______ day of _______, 20__.
SCHEDULE
1 TO COMPLIANCE CERTIFICATE
Compliance
Calculations for Credit Agreement
CALCULATION
AS OF __________ ___, 200__
A.
|
Capital
Ratio (Sec. 7.6)
|
||||
1.
|
Consolidated
Indebtedness
|
$____________
|
|||
2.
|
Consolidated
Net Worth (excluding accumulated other comprehensive income and
loss)
|
$____________
|
|||
3.
|
Sum
of Line A1 plus Line A2
|
$____________
|
|||
4.
|
Capital
Ratio
|
____
|
:1.00
|
(ratio
of (a) Line A1
|
|
to
(b) Line A3 not to
|
|||||
exceed
0.65 to 1.00)
|
[List
of
Subsidiaries]
EXHIBIT
11.12
FORM
OF ASSIGNMENT AND ASSUMPTION
This
Assignment and Assumption (the "Assignment
and Assumption")
is
dated as of the Effective Date set forth below and is entered into by and
between [Insert
name of Assignor]
(the
"Assignor")
and
[Insert
name of Assignee]
(the
"Assignee").
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Credit Agreement identified below (as amended, the "Credit
Agreement"),
receipt of a copy of which is hereby acknowledged by the Assignee. Annex 1
attached hereto is hereby agreed to and incorporated herein by reference and
made a part of this Assignment and Assumption as if set forth herein in
full.
For
an
agreed consideration, the Assignor hereby irrevocably sells and assigns to
the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Standards Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of the Assignor's rights
and
obligations in its capacity as a Bank under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to
the
amount and percentage interest identified below of all of such outstanding
rights and obligations of the Assignor under the respective facilities
identified below (including without limitation any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii) to the
extent permitted to be assigned under applicable law, all claims, suits, causes
of action and any other right of the Assignor (in its capacity as a Bank)
against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or
related to any of the foregoing, including, but not limited to, contract claims,
tort claims, malpractice claims, statutory claims and all other claims at law
or
in equity related to the rights and obligations sold and assigned pursuant
to
clause (i) above (the rights and obligations sold and assigned pursuant to
clauses (i) and (ii) above being referred to herein collectively as, the
"Assigned
Interest").
Each
such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment and Assumption, without representation
or
warranty by the Assignor.
1.
|
Assignor:
_____________________________
|
2.
|
Assignee:
_____________________________
|
[and
is an Affilliate/Approved Fund of [identify Bank]1]
|
3.
|
Borrower:
Peoples Energy Corporation
|
4.
|
Administrative
Agent: Bank of America, N.A., as the administrative agent under the
Credit
Agreement
|
5.
|
Credit
Agreement: The Credit Agreement dated as of ________ ___, 2006, by
and
among Peoples Energy Corporation, the Banks party thereto, Bank of
America, N.A., as Administrative Agent, and JPMorgan Chase Bank,
N.A., as
Syndication Agent.
|
6.
|
Assigned
Interest:
|
__________________________
1 Select
as applicable.
Aggregate
|
Amount
of
|
Percentage
|
|||
Amount
of
|
Commitment/
|
Assigned
of
|
|||
Commitment/
|
Loans
|
Commitment/
|
CUSIP
|
||
Assignor[s]2
|
Assignee[s]3
|
Loans
|
Assigned
|
Loans5
|
Number
|
for
all Banks4
|
|||||
$
_________
|
$
_________
|
__________%
|
|||
$
_________
|
$
_________
|
__________%
|
|||
$
_________
|
$
_________
|
__________%
|
[7.
|
Trade
Date: ________________]6
|
Effective
Date: _____________ ___, 20___ [TO
BE INSERTED BY ADMINISTRATIVE AGENT
AND
WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER
IN
THE
REGISTER THEREFOR.]
The
terms
set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
|
|
[NAME
OF ASSIGNOR]
|
|
By:
__________________________
|
|
Title:
|
|
ASSIGNEE
|
|
[NAME
OF ASSIGNEE]
|
|
By:
__________________________
|
|
Title:
|
[Consented
to and]7
Accepted:
BANK
OF
AMERICA, N.A. as
Agent
By
________________________
Title:
______________________
__________________________
2 List
each Assignor, as appropriate.
3 List
each Assignee, as appropriate.
4 Amounts
in this column and in the column immediately to the right to be adjusted by
the
counterparties to take into account any payments or prepayments made between
the
Trade Date and the Effective Date.
5 Set
forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all
Banks thereunder.
6 To
be completed if the Assignor and the Assignee intend that the minimum assignment
amount is to be determined as of the Trade Date.
7 To
be added only if the consent of the Administrative Agent is required by the
terms of the Credit Agreement.
[Consented
to:]8
[BANK
OF
AMERICA, N.A. as Administrative Agent and as L/C Issuer]
By
______________________________
Name:
___________________________
Title:
____________________________
PEOPLES
ENERGY CORPORATION
By
______________________________
Name:
___________________________
Title:
____________________________
__________________________
8 To
be added only if the consent of the Borrowers and/or other parties (e.g. L/C
Issuer) is required by the terms of the Credit Agreement.
ANNEX
1 to Assignment and Assumption
STANDARD
TERMS AND CONDITIONS FOR
ASSIGNMENT
AND ASSUMPTION
1. Representations
and Warranties.
1.1 Assignor.
The
Assignor (a) represents and warrants that (i) it is the legal and beneficial
owner of the Assigned Interest, (ii) the Assigned Interest is free and clear
of
any lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated
hereby; and (b) assumes no responsibility with respect to (i) any statements,
warranties or representations made in or in connection with the Credit Agreement
or any other Credit Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Documents or
any
collateral thereunder, (iii) the financial condition of the Borrower, any of
its
Subsidiaries or Affiliates or any other Person obligated in respect of any
Credit Document or (iv) the performance or observance by the Borrower, any
of
its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Credit Document.
1.2 Assignee.
The
Assignee (a) represents and warrants that (i) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment
and
Assumption and to consummate the transactions contemplated hereby and to become
a Bank under the Credit Agreement, (ii) it meets all the requirements to be
an
Eligible Assignee under Section 11.12(b) of the Credit Agreement (subject to
such consents, if any, as may be required under Section 11.12(b) of the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Bank thereunder and, to the extent
of
the Assigned Interest, shall have the obligations of a Bank thereunder, (iv)
it
is sophisticated with respect to decisions to acquire assets of the type
represented by the Assigned Interest and either it, or the Person exercising
discretion in making its decision to acquire the Assigned Interest, is
experienced in acquiring assets of such type, (v) it has received a copy of
the
Credit Agreement, and has received or has been accorded the opportunity to
receive copies of the most recent financial statements delivered pursuant to
Section 7.3 thereof, as applicable, and such other documents and information
as
it deems appropriate to make its own credit analysis and decision to enter
into
this Assignment and Assumption and to purchase the Assigned Interest, (vi)
it
has, independently and without reliance upon the Administrative Agent or any
other Bank and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest, and (vi) if
it
is a foreign lender, attached to the Assignment and Assumption is any
documentation required to be delivered by it pursuant to the terms of the Credit
Agreement, duly completed and executed by the Assignee; and (b) agrees that
(i)
it will, independently and without reliance on the Administrative Agent, the
Assignor or any other Bank, and based on such documents and information as
it
shall deem appropriate at the time, continue to make its own credit decisions
in
taking or not taking action under the Credit Documents, and (ii) it will perform
in accordance with their terms all of the obligations which by the terms of
the
Credit Documents are required to be performed by it as a Bank.
2. Payments.
From
and after the Effective Date, the Administrative Agent shall make all payments
in respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignor for amounts which have accrued to but
excluding the Effective Date and to the Assignee for amounts which have accrued
from and after the Effective Date.
3. General
Provisions.
This
Assignment and Assumption shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and assigns. This Assignment
and Assumption may be executed in any number of counterparts, which together
shall constitute one instrument. Delivery of an executed counterpart of a
signature page of this Assignment and Assumption by facsimile shall be effective
as delivery of a manually executed counterpart of this Assignment and
Assumption. This Assignment and Assumption shall be governed by, and construed
in accordance with, the law of the State of Illinois.