Exhibit 4.1
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$100,000,000
FIVE YEAR
CREDIT AGREEMENT
Dated as of July 26, 2004
Among
ALLIANT ENERGY CORPORATION
as Borrower
THE BANKS NAMED HEREIN
as Banks
and
WACHOVIA BANK, NATIONAL ASSOCIATION
as Administrative Agent and LC Issuing Bank
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BARCLAYS BANK PLC
Syndication Agent
WACHOVIA CAPITAL MARKETS, LLC
AND
BARCLAYS CAPITAL
Co-Lead Arrangers
ABN AMRO BANK N.V.,
BANK ONE, N.A.
AND
XXXXX FARGO BANK, N.A.
Co-Documentation Agents
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.................................. 1
SECTION 1.01. Certain Defined Terms................................... 1
SECTION 1.02. Computation of Time Periods............................. 16
SECTION 1.03. Computations of Outstandings............................ 16
SECTION 1.04. Accounting Terms........................................ 16
ARTICLE II AMOUNTS AND TERMS OF THE EXTENSIONS OF CREDIT.................... 17
SECTION 2.01. The Advances............................................ 17
SECTION 2.02. Making the Advances..................................... 17
SECTION 2.03. Letters of Credit....................................... 18
SECTION 2.04. Fees.................................................... 21
SECTION 2.05. Changes in the Commitments.............................. 22
SECTION 2.06. Repayment of Advances................................... 23
SECTION 2.07. Interest on Advances.................................... 23
SECTION 2.08. Additional Interest on Eurodollar Rate Advances......... 23
SECTION 2.09. Interest Rate Determination............................. 24
SECTION 2.10. Voluntary Conversion of Advances........................ 25
SECTION 2.11. Optional Prepayments of Advances........................ 26
SECTION 2.12. Increased Costs......................................... 26
SECTION 2.13. Illegality.............................................. 27
SECTION 2.14. Payments and Computations............................... 27
SECTION 2.15. Noteless Agreement; Evidence of Indebtedness............ 28
SECTION 2.16. Taxes................................................... 29
SECTION 2.17. Sharing of Payments, Etc................................ 30
ARTICLE III CONDITIONS TO EXTENSIONS OF CREDIT.............................. 31
SECTION 3.01. Conditions Precedent to Closing......................... 31
SECTION 3.02. Conditions Precedent to Each Extension of Credit........ 32
SECTION 3.03. Conditions Precedent to Extensions of Credit Between
December 31, 2004 and December 31, 2007................. 33
SECTION 3.04. Conditions Precedent to Extensions of Credit After
December 31, 2007....................................... 33
SECTION 3.05. Reliance on Certificates................................ 34
ARTICLE IV REPRESENTATIONS AND WARRANTIES................................... 34
SECTION 4.01. Representations and Warranties of the Borrower.......... 34
ARTICLE V COVENANTS OF THE BORROWER......................................... 36
SECTION 5.01. Affirmative Covenants................................... 36
SECTION 5.02. Negative Covenants...................................... 40
ARTICLE VI EVENTS OF DEFAULT................................................ 45
SECTION 6.01. Events of Default....................................... 45
SECTION 6.02. Cash Collateral Account................................. 47
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ARTICLE VII THE AGENT....................................................... 47
SECTION 7.01. Authorization and Action................................ 47
SECTION 7.02. Agent's Reliance, Etc................................... 48
SECTION 7.03. Wachovia and Affiliates................................. 48
SECTION 7.04. Lender Credit Decision.................................. 49
SECTION 7.05. Indemnification......................................... 49
SECTION 7.06. Successor Agent......................................... 49
ARTICLE VIII MISCELLANEOUS.................................................. 50
SECTION 8.01. Amendments, Etc......................................... 50
SECTION 8.02. Notices, Etc............................................ 50
SECTION 8.03. No Waiver; Remedies..................................... 51
SECTION 8.04. Costs, Expenses, Taxes and Indemnification.............. 51
SECTION 8.05. Right of Set-off........................................ 52
SECTION 8.06. Binding Effect.......................................... 53
SECTION 8.07. Assignments and Participations.......................... 53
SECTION 8.08. Confidentiality......................................... 56
SECTION 8.09. WAIVER OF JURY TRIAL.................................... 57
SECTION 8.10. Governing Law........................................... 57
SECTION 8.11. Relation of the Parties; No Beneficiary................. 57
SECTION 8.12. Execution in Counterparts............................... 58
SECTION 8.13. Entire Agreement........................................ 58
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EXHIBITS AND SCHEDULES
Exhibit 1.01 - Form of Note
Exhibit 2.02(a) - Form of Notice of Borrowing
Exhibit 2.03 - Form of Request for Issuance
Exhibit 2.10 - Form of Notice of Conversion
Exhibit 3.01(a)(viii)-1 - of Opinion of Xxxxx & Lardner LLP
Exhibit 3.01(a)(viii)-2 - of Opinion of In-house Counsel
Exhibit 3.01(a)(viii)-3 - of Opinion of King & Spalding LLP
Exhibit 8.07 - Form of Lender Assignment
Schedule I - Commitment Schedule
Schedule II - Existing Liens
Schedule III - List of Indentures
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FIVE YEAR CREDIT AGREEMENT
Dated as of July 26, 2004
THIS FIVE YEAR CREDIT AGREEMENT (this "AGREEMENT") is made by and among:
(i) ALLIANT ENERGY CORPORATION, a Wisconsin corporation (the
"BORROWER"),
(ii) the banks (the "BANKS") listed on the signature pages hereof and the
other Lenders (as hereinafter defined) from time to time party
hereto, and
(iii) WACHOVIA BANK, National Association ("WACHOVIA"), as administrative
agent (the "AGENT") for the Lenders hereunder and as a LC Issuing
Bank (as defined below).
PRELIMINARY STATEMENTS
(1) The Borrower has requested that the Banks and LC Issuing Bank
provide certain Extensions of Credit (as hereinafter defined) to the
Borrower.
(2) The Banks and LC Issuing Bank have agreed to make such
Extensions of Credit subject to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ADDITIONAL LENDER" has the meaning assigned to that term in Section
2.05(d).
"ADMINISTRATIVE AGENCY AND ARRANGER FEE LETTER" means the letter
agreement, dated June 29, 2004, among the Borrower, the Utilities,
Wachovia, Wachovia Capital Markets, LLC, Barclays Bank PLC and Barclays
Capital.
"ADVANCE" means an advance by a Lender to the Borrower as part of a
Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance,
each of which shall be a "TYPE" of Advance.
"AER" means Alliant Energy Resources, Inc., a Wisconsin
corporation.
"AFFECTED LENDER" has the meaning assigned to that term in Section
2.13.
"AFFECTED LENDER ADVANCE" has the meaning assigned to that term in
Section 2.13.
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all
directors and officers of such Person), controlled by, or under direct or
indirect common control with such Person. A Person shall be deemed to
control another entity if such Person possesses, directly or indirectly,
the power to direct or cause the direction of the management and policies
of such entity, whether through the ownership of voting securities, by
contract, or otherwise.
"ALTERNATE BASE RATE" means a fluctuating interest rate per annum as
shall be in effect from time to time, which rate per annum shall at all
times be equal to the higher of:
(i) the rate of interest announced publicly by Wachovia or from time
to time, as its corporate base rate or prime rate of interest; and
(ii) 1/2 of one percent per annum above the Federal Funds Rate.
Each change in the Alternate Base Rate shall take effect concurrently with
any change in such base or prime rate or the Federal Funds Rate.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance.
"APPLICABLE MARGIN" means, for any Eurodollar Rate Advance or Base
Rate Advance, (i) on any date the Utilization Percentage equals or is less
than 33-1/3%, the number of basis points set forth below in the columns
identified as Xxxxx 0, Xxxxx 0, Xxxxx 0, Xxxxx 0, Xxxxx 5 or Level 6
below, opposite the Eurodollar Rate or the Base Rate, as applicable, and
(ii) on any date the Utilization Percentage exceeds 33-1/3%, the number of
basis points set forth below in the columns identified as Xxxxx 0, Xxxxx
0, Xxxxx 0, Xxxxx 0, Xxxxx 5 or Level 6 below, opposite the Utilized
Eurodollar Rate or the Utilized Base Rate, as applicable.
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XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 5 LEVEL 6
------- ------- ------- ------- ------- -------
Reference Reference Reference Reference
Reference Ratings Less Ratings Less Ratings Less Ratings Less
Ratings At Than Level 1 Than Xxxxx 0 Xxxx Xxxxx 0 Xxxx Xxxxx 0
Xxxxx A By But At Least But At Least But At Least But At Least Rference
BASIS FOR S&P or A2 A- By S&P or BBB+ By S&P or BBB By S&P or BBB- By S&P or Ratings Less
PRICING By Xxxxx'x. A3 By Xxxxx'x. BAA1 By Xxxxx'x. BAA2 By Xxxxx'x. BAA3 By Xxxxx'x. Than Level 5*
------- ----------- ----------------- ---------------- ---------------- ---------------- -------------
Basis Points Per Annum
Eurodollar Rate 27.5 37.5 47.5 57.5 87.5 115.0
Base Rate 0 0 0 0 0 0
Utilized Eurodollar Rate 40.0 50.0 60.0 70.0 100.0 127.5
Utilized Base Rate 12.5 12.5 12.5 12.5 12.5 12.5
* or unrated
The Applicable Margin will be based upon the Level that corresponds to the
Reference Ratings at the time of determination, subject, however, to the
following: if the Reference Ratings assigned by S&P and Xxxxx'x do not
fall within the same Level on the grid above (i.e., a "split rating") and:
(i) the difference consists of one Level, the Applicable Margin will be
based upon the Level that corresponds to the higher of such Reference
Ratings, or (ii) the difference consists of two or more Levels, the
Applicable Margin will be based upon the Level that corresponds to a
notional Reference Rating that falls at the midpoint between the actual
Reference Ratings (or if no Reference Rating on the grid above corresponds
to such midpoint, the next higher Reference Rating), unless, in the case
of clause (i) or (ii) above, either Reference Rating is below BBB- (in the
case of S&P) or Baa3 (in the case of Xxxxx'x) or the applicable debt
securities are, or the Borrower is, as applicable, unrated, in which case
the Applicable Margin will be based upon Level 6. Any change in the
Applicable Margin resulting from a change in the Reference Ratings shall
be effective, as to any Advance, as of the date on which the applicable
rating agency announces the applicable change in ratings.
"APPLICABLE RATE" means:
(i) in the case of each Base Rate Advance, a rate per annum equal at
all times to the sum of the Alternate Base Rate in effect from time to
time plus the Applicable Margin in effect from time to time; and
(ii) in the case of each Eurodollar Rate Advance comprising part of
the same Borrowing, a rate per annum during each Interest Period equal at
all times to the sum of the Eurodollar Rate for such Interest Period plus
the Applicable Margin in effect from time to time during such Interest
Period.
"AVAILABLE COMMITMENT" means, for each Lender at any time on any
day, the unused portion of such Lender's Commitment, computed after giving
effect to all Extensions of Credit made or to be made on such day, the
application of proceeds therefrom, all prepayments and repayments of
Advances made on such day and all reductions in the LC Outstandings made
on such day.
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"AVAILABLE COMMITMENTS" means the aggregate of the Lenders'
Available Commitments hereunder.
"BANKS" has the meaning assigned to that term in the Preamble to
this Agreement.
"BASE RATE ADVANCE" means an Advance that bears interest as provided
in Section 2.07(a).
"BORROWER" has the meaning assigned to that term in the Preamble to
this Agreement.
"BORROWING" means a borrowing consisting of simultaneous Advances of
the same Type, having the same Interest Period and ratably made or
Converted on the same day by each of the Lenders pursuant to Section 2.02
or 2.10, as the case may be. All Advances of the same Type, having the
same Interest Period and made or Converted on the same day shall be deemed
a single Borrowing hereunder until repaid or next Converted.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized to close in New York City, Charlotte, North
Carolina or Madison, Wisconsin and, if the applicable Business Day relates
to any Eurodollar Rate Advance, on which dealings are carried on in the
London interbank market.
"CAPITALIZED LEASE OBLIGATIONS" means obligations to pay rent or
other amounts under any lease of (or other arrangement conveying the right
to use) real and/or personal property which obligation is required to be
classified and accounted for as a capital lease on a balance sheet
prepared in accordance with GAAP, and for purposes hereof the amount of
such obligations shall be the capitalized amount determined in accordance
with such principles.
"CASH AND CASH EQUIVALENTS" means, with respect to any Person, the
aggregate amount of the following, to the extent owned by such Person free
and clear of all Liens, encumbrances and rights of others and not subject
to any judicial, regulatory or other legal constraint: (i) cash on hand;
(ii) Dollar demand deposits maintained in the United States with any
commercial bank and Dollar time deposits maintained in the United States
with, or certificates of deposit having a maturity of one year or less
issued by, any commercial bank which has an office in the United States
and which has a combined capital and surplus of at least $100,000,000;
(iii) eurodollar time deposits maintained in the United States with, or
eurodollar certificates of deposit having a maturity of one year or less
issued by, any commercial bank having outstanding unsecured indebtedness
that is rated (on the date of acquisition thereof) A- or better by S&P or
A3 or better by Xxxxx'x (or an equivalent rating by another
nationally-recognized credit rating agency of similar standing if neither
of such corporations is then in the business of rating unsecured bank
indebtedness); (iv) direct obligations of, or unconditionally guaranteed
by, the United States and having a maturity of one year or less; (v)
commercial paper rated (on the date of acquisition thereof) A-1 or P-1 or
better by S&P or Xxxxx'x, respectively (or an equivalent rating by another
nationally-recognized credit rating agency of similar
4
standing if neither of such corporations is then in the business of rating
commercial paper), and having a maturity of one year or less; (vi)
obligations with any Lender or any other commercial bank in respect of the
repurchase of obligations of the type described in clause (iv) above,
provided that such repurchase obligations shall be fully secured by
obligations of the type described in said clause (iv) and the possession
of such obligations shall be transferred to, and segregated from other
obligations owned by, such Lender or such other commercial bank; and (vii)
preferred stock of any Person that is rated A- or better by S&P or A3 or
better by Xxxxx'x (or an equivalent rating by another
nationally-recognized credit rating agency of similar standing if neither
of such corporations is then in the business of rating preferred stock of
entities engaged in such businesses).
"CASH COLLATERAL ACCOUNT" has the meaning assigned to that term in
Section 6.02.
"CERTIFYING OFFICER" has the meaning assigned to that term in
Section 5.01(h)(iv).
"CLOSING" means the day upon which each of the applicable conditions
precedent enumerated in Section 3.01 shall be fulfilled to the
satisfaction of, or waived with the consent of, the Lenders, the Agent,
the LC Issuing Bank and the Borrower. All transactions contemplated by the
Closing shall take place on a Business Day on or prior to July 26, 2004,
at the offices of King & Spalding LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, at 10:00 a.m. (New York City time), or such later
Business Day as the parties hereto may mutually agree.
"CO-LEAD ARRANGERS" shall mean, collectively, Wachovia Capital
Markets, LLC and Barclays Capital, the Investment Banking Division of
Barclays Bank PLC.
"COMMITMENT" means, for each Lender, the obligation of such Lender
to make Advances to the Borrower and to participate in the reimbursement
obligations of the Borrower in respect of Letters of Credit in an amount
no greater than the amount set forth on Schedule I hereto or, if such
Lender has entered into one or more Lender Assignments or is an Additional
Lender or an Increasing Lender, set forth for such Lender in the Register
maintained by the Agent pursuant to Section 8.07(c), in each such case as
such amount may be reduced from time to time or increased pursuant to
Section 2.05.
"COMMITMENT INCREASE APPROVALS" means resolutions of the board of
directors of the Borrower authorizing the Commitment Increase.
"COMMITMENTS" means the total of the Lenders' Commitments hereunder.
"CONFIDENTIAL INFORMATION" has the meaning assigned to that term in
Section 8.08.
"CONSOLIDATED CAPITAL" means, with respect to any Person, at any
date of determination, the sum of (i) Consolidated Debt of such Person,
(ii) consolidated equity of the common stockholders of such Person and its
Consolidated Subsidiaries, (iii) consolidated equity of the preference
stockholders of such Person and its Consolidated Subsidiaries and (iv)
consolidated equity of the preferred stockholders of such Person and its
Consolidated Subsidiaries, in each case determined at such date in
5
accordance with GAAP, excluding, however, from such calculation, amounts
identified as "Accumulated Other Comprehensive Income (Loss)" in the
financial statements of the Borrower set forth in the Borrower's Report on
Form 10-K or 10-Q, as the case may be, filed most recently with the
Securities and Exchange Commission prior to the date of such
determination.
"CONSOLIDATED DEBT" means, with respect to any Person, without
duplication, at any date of determination, the aggregate Debt of such
Person and its Consolidated Subsidiaries determined on a consolidated
basis in accordance with GAAP, but shall not include Nonrecourse Debt of
any Subsidiary of the Borrower.
"CONSOLIDATED SUBSIDIARY" means, with respect to any Person, any
Subsidiary of such Person whose accounts are or are required to be
consolidated with the accounts of such Person in accordance with GAAP.
"CONTINUING DIRECTORS" means the members of the Board of Directors
of the Borrower on the date hereof and each other director of the
Borrower, if such other director's nomination for election to the Board of
Directors of the Borrower is recommended by a majority of the then
Continuing Directors.
"CONVERT", "CONVERSION" and "CONVERTED" each refers to a conversion
of Advances of one Type into Advances of another Type, or to the selection
of a new, or the renewal of the same, Interest Period for Advances, as the
case may be, pursuant to Section 2.09 or 2.10.
"DEBT" means, for any Person, any and all indebtedness, liabilities
and other monetary obligations of such Person (i) for borrowed money or
evidenced by bonds, debentures, notes or other similar instruments, (ii)
to pay the deferred purchase price of property or services (except trade
accounts payable arising and repaid in the ordinary course of business),
(iii) Capitalized Lease Obligations, (iv) under reimbursement or similar
agreements with respect to letters of credit (other than trade letters of
credit) issued to support indebtedness or obligations of such Person or of
others of the kinds referred to in clauses (i) through (iii) above and
clause (v) below, (v) reasonably quantifiable obligations under direct
guaranties or indemnities, or under support agreements, in respect of, and
reasonably quantifiable obligations (contingent or otherwise) to purchase
or otherwise acquire, or otherwise to assure a creditor against loss in
respect of, or to assure an obligee against failure to make payment in
respect of, indebtedness or obligations of others of the kinds referred to
in clauses (i) through (iv) above, and (vi) in respect of unfunded vested
benefits under Plans. In determining Debt for any Person, there shall be
included accrued interest on the principal amount thereof to the extent
such interest has accrued for more than six months.
"DEFAULT RATE" means (i) with respect to the unpaid principal of or
interest on any Advance, the greater of (A) 2% per annum above the
Applicable Rate in effect from time to time for such Advance and (B) 2%
per annum above the Applicable Rate in effect from time to time for Base
Rate Advances and (ii) with respect to any other unpaid amount
6
hereunder, 2% per annum above the Applicable Rate in effect from time to
time for Base Rate Advances.
"DIRECT SUBSIDIARY" means, with respect to any Person, any
Subsidiary directly owned by such Person.
"DOLLARS" and the sign "$" each means lawful money of the United
States.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, the
office or affiliate of such Lender specified as its "Domestic Lending
Office" opposite its name on Schedule I hereto or in the Lender Assignment
pursuant to which it became a Lender, or such other office or affiliate of
such Lender as such Lender may from time to time specify in writing to the
Borrower and the Agent.
"ELIGIBLE ASSIGNEE" means (i) a commercial bank or trust company
organized under the laws of the United States, or any State thereof; (ii)
a commercial bank organized under the laws of any other country that is a
member of the OECD, or a political subdivision of any such country,
provided that such bank is acting through a branch or agency located in
the United States; (iii) the central bank of any country that is a member
of the OECD; and (iv) any other commercial bank or other financial
institution engaged generally in the business of extending credit or
purchasing debt instruments; provided, however, that (A) any such Person
shall also (1) have outstanding unsecured indebtedness that is rated A- or
better by S&P or A3 or better by Xxxxx'x (or an equivalent rating by
another nationally-recognized credit rating agency of similar standing if
neither of such rating agencies is then in the business of rating
unsecured indebtedness of entities engaged in such businesses) or (2) have
combined capital and surplus (as established in its most recent report of
condition to its primary regulator) of not less than $250,000,000 (or its
equivalent in foreign currency), and (B) any Person described in clause
(ii), (iii) or (iv) above shall, on the date on which it is to become a
Lender hereunder, (x) be entitled to receive payments hereunder without
deduction or withholding of any United States Federal income taxes (as
contemplated by Section 2.16) and (y) not be incurring any losses, costs
or expenses of the type for which such Person could demand payment under
Section 2.12.
"EQUITY INTERESTS" means, (i) with respect to a corporation, shares
of capital stock of such corporation or any other interest convertible or
exchangeable into any such interest, (ii) with respect to a limited
liability company, a membership interest in such company, (iii) with
respect to a partnership, a partnership interest in such partnership, and
(iv) with respect to any other Person, an interest in such Person
analogous to interests described in clauses (i) through (iii).
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA AFFILIATE" means, with respect to any Person, any trade or
business (whether or not incorporated) which is a member of a group of
which such Person is a
7
member and which is under common control within the meaning of the
regulations under Section 414(b) or (c) of the Internal Revenue Code of
1986, as amended from time to time.
"ERISA EVENT" means (i) the occurrence of a reportable event, within
the meaning of Section 4043 of ERISA, unless the 30-day notice requirement
with respect thereto has been waived by the PBGC; (ii) the provision by
the administrator of any Plan of notice of intent to terminate such Plan,
pursuant to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of ERISA);
(iii) the cessation of operations at a facility in the circumstances
described in Section 4062(e) of ERISA; (iv) the withdrawal by the Borrower
or an ERISA Affiliate of the Borrower from a Multiple Employer Plan or a
Multiemployer Plan during a plan year for which it was a "substantial
employer", as defined in Section 4001(a)(2) of ERISA; (v) the failure by
the Borrower or an ERISA Affiliate of the Borrower to make a payment to a
Plan required under Section 302(f)(1) of ERISA, which failure results in
the imposition of a lien for failure to make required payments; (vi) the
adoption of an amendment to a Plan requiring the provision of security to
such Plan, pursuant to Section 307 of ERISA; or (vii) the institution by
the PBGC of proceedings to terminate a Plan, pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition which might reasonably
be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, a Plan.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender, the
office or affiliate of such Lender specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or in the Lender Assignment
pursuant to which it became a Lender (or, if no such office is specified,
its Domestic Lending Office), or such other office or affiliate of such
Lender as such Lender may from time to time specify in writing to the
Borrower and the Agent.
"EURODOLLAR RATE" means, for each Interest Period for each
Eurodollar Rate Advance made as part of the same Borrowing, an interest
rate per annum equal to the average (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is not such a multiple)
of the rate per annum at which deposits in U.S. dollars are offered by the
principal office of each of the Reference Banks in London, England to
prime banks in the London interbank market at 11:00 a.m. (London time) two
Business Days before the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurodollar Rate Advance made
as part of such Borrowing and for a period equal to such Interest Period.
The Eurodollar Rate for the Interest Period for each Eurodollar Rate
Advance made as part of the same Borrowing shall be determined by the
Agent on the basis of applicable rates furnished to and received by the
Agent from the Reference Banks two Business Days before the first day of
such Interest Period, subject, however, to the provisions of Section 2.09.
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"EURODOLLAR RATE ADVANCE" means an Advance that bears interest as
provided in Section 2.07(b).
"EURODOLLAR RESERVE PERCENTAGE" of any Lender for each Interest
Period for each Eurodollar Rate Advance means the reserve percentage
applicable to such Lender during such Interest Period (or if more than one
such percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any such
percentage shall be so applicable) under Regulation D or other regulations
issued from time to time by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) then applicable to such Lender with respect
to liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning assigned to that term in Section
6.01.
"EXISTING FACILITY" means the $200,000,000 364-Day Credit Agreement,
dated as of September 30, 2003, as amended, among the Borrower, the banks
named therein and Bank One, NA, as the administrative agent.
"EXISTING LETTER OF CREDIT" means letter of credit number SLT750762,
with a stated amount of $57,500, issued by Bank One, NA under the Existing
Facility.
"EXTENSION OF CREDIT" means (i) the disbursement of the proceeds of
any Borrowing and (ii) the issuance of a Letter of Credit or the amendment
of any Letter of Credit having the effect of extending the stated
termination date thereof or increasing the maximum amount available to be
drawn thereunder.
"FACILITY FEE" means a fee that shall be payable on the aggregate
amount of the Commitment of each Lender, irrespective of usage, payable to
each Lender on the amount of its Commitment at the rate (expressed in
basis points per annum) set forth below in the columns identified as Xxxxx
0, Xxxxx 0, Xxxxx 0, Xxxxx 0, Xxxxx 5 or Level 6 based on the Reference
Ratings.
XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 5 LEVEL 6
BASIS FOR Reference Reference Reference Reference Reference Reference
PRICING Ratings At Ratings Ratings Less Ratings Ratings Ratings Less
Least A By Less Than Than Level 2 Less Than Less Than Than Level 5*
S&P or A2 Xxxxx 0 But But At Least Level 3 But Level 4 But
By Moody's. At Least A- BBB+ By S&P At Least At Least
By S&P or or BAA1 By BBB By S&P BBB- By S&P
A3 By Moody's. or BAA2 By or BAA3 By
Moody's. Moody's. Moody's.
-------- -------- --------
Facility Fee 10.0 12.5 15.0 17.5 25.0 35.0
* or unrated
The Facility Fee will be based upon the Level that corresponds to the
Reference Ratings at the time of determination, subject, however, to the
following: if the Reference Ratings assigned by S&P and Moody's do not
fall within the same Level on the grid above (i.e., a
9
"split rating") and: (i) the difference consists of one Level, the
Facility Fee will be based upon the Level that corresponds to the higher
of such Reference Ratings, or (ii) the difference consists of two or more
Levels, the Facility Fee will be based upon the Level that corresponds to
a notional Reference Rating that falls at the midpoint between the actual
Reference Ratings (or if no Reference Rating on the grid above corresponds
to such midpoint, the next higher Reference Rating), unless, in the case
of clause (i) or (ii) above, either Reference Rating is below BBB- (in the
case of S&P) or Baa3 (in the case of Moody's) or the applicable debt
securities are, or the Borrower is, as applicable, unrated, in which case
the Facility Fee will be based upon Level 6. Any change in the Facility
Fee resulting from a change in the Reference Ratings shall be effective as
of the date on which the applicable rating agency announces the applicable
change in ratings.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by
the Agent from three Federal funds brokers of recognized standing selected
by it.
"FIRST SUPPLEMENTAL ORDER" means the order or orders of the
Securities and Exchange Commission under the PUHCA authorizing the
Borrower to obtain Extensions of Credit and to perform its obligations
under this Agreement between December 31, 2004 and December 31, 2007.
"FOREIGN SUBSIDIARY" means any Subsidiary of the Borrower that is
organized under the law of any jurisdiction other than any state of the
United States of America.
"GAAP" has the meaning assigned to that term in Section 1.04.
"GOVERNMENTAL APPROVAL" means any authorization, consent, approval,
license, franchise, lease, ruling, tariff, rate, permit, certificate,
exemption of, or filing or registration with, any governmental authority
or other legal or regulatory body.
"GRANTING LENDER" has the meaning assigned to that term in Section
8.07(i).
"HAZARDOUS SUBSTANCE" means any waste, substance, or material
identified as hazardous, dangerous or toxic by any office, agency,
department, commission, board, bureau, or instrumentality of the United
States or of the State or locality in which the same is located having or
exercising jurisdiction over such waste, substance or material.
"HOSTILE ACQUISITION" means any acquisition involving a tender offer
or proxy contest that has not been recommended or approved by the board of
directors (or similar governing body) of the Person that is the subject of
such acquisition prior to the first public announcement or disclosure
relating to such acquisition.
"INCREASING LENDER" has the meaning assigned to that term in Section
2.05(d).
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"INDEMNIFIED PERSON" has the meaning assigned to that term in
Section 8.04(c).
"INTEREST COVERAGE RATIO" means, as of any date, the ratio of (i)
operating income plus depreciation and amortization of the Borrower and
its Consolidated Subsidiaries for the four fiscal quarters ending on such
date to (ii) the Interest Expense payable by the Borrower and its
Consolidated Subsidiaries during such period.
"INTEREST EXPENSE" means, for any Person and its Consolidated
Subsidiaries and for any period, all interest expense (including all
amortization of debt discount and expenses and reported interest) on all
Debt of such Person and its Consolidated Subsidiaries during such period.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance made as
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Advance into
such a Eurodollar Rate Advance and ending on the last day of the period
selected by the Borrower pursuant to the provisions below and, thereafter,
each subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period
selected by the Borrower pursuant to the provisions below. The duration of
each such Interest Period shall be 1, 2, 3 or 6 months, as the Borrower
may, upon notice received by the Agent not later than 11:00 a.m. on the
third Business Day prior to the first day of such Interest Period, select;
provided, however, that:
(i) the Borrower may not select any Interest Period that ends
after the Termination Date;
(ii) Interest Periods commencing on the same date for Advances
comprising part of the same Borrowing shall be of the same
duration; and
(iii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next
succeeding Business Day, provided, in the case of any Interest
Period for a Eurodollar Rate Advance, that if such extension
would cause the last day of such Interest Period to occur in
the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business
Day.
"IPL" means Interstate Power and Light Company, an Iowa corporation.
"LC FEE" is defined in Section 2.04(b).
"LC ISSUING BANK" means, (i) with respect to the Existing Letter of
Credit, Bank One, NA and (ii) with respect to any other Letter of Credit,
Wachovia.
"LC OUTSTANDINGS" means, on any date of determination, the sum of
the undrawn stated amounts of all Letters of Credit that are outstanding
on such date plus the aggregate principal amount of all unpaid
reimbursement obligations of the Borrower on such date with respect to
payments made by the LC Issuing Bank under Letters of Credit.
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"LC PAYMENT NOTICE" is defined in Section 2.03(d).
"LENDER ASSIGNMENT" means an assignment and acceptance agreement
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent and the LC Issuing Bank, in substantially the form of Exhibit 8.07.
"LENDERS" means the Banks listed on the signature pages hereof, each
Additional Lender and each Eligible Assignee that shall become a party
hereto pursuant to Section 8.07.
"LETTER OF CREDIT" means (i) any letter of credit issued by the LC
Issuing Bank pursuant to Section 2.03 and (ii) the Existing Letter of
Credit.
"LIEN" has the meaning assigned to that term in Section 5.02(a).
"LOAN DOCUMENTS" means (i) this Agreement, any Note issued pursuant
to Section 2.15, the Administrative Agency and Arranger Fee Letter, (ii)
all agreements, documents and instruments in favor of the Agent, the LC
Issuing Bank or the Lenders (or the Agent on behalf of the LC Issuing Bank
or the Lenders), and (iii) all other agreements, instruments and documents
now or hereafter executed and/or delivered pursuant hereto or thereto.
"MAJORITY LENDERS" means, on any date of determination, Lenders
that, collectively, on such date (i) hold greater than 50% of the then
outstanding Advances and participation obligations with respect to the LC
Outstandings and, (ii) if there are no Outstanding Credits, have
Percentages in the aggregate greater than 50%. Any determination of those
Lenders constituting the Majority Lenders shall be made by the Agent and
shall be conclusive and binding on all parties absent manifest error.
"MARGIN STOCK" has the meaning assigned to that term in Regulation U
of the Board of Governors of the Federal Reserve System.
"MATERIAL ADVERSE CHANGE" means (i) a material adverse change in, or
a material adverse effect upon, the operations, business, properties,
liabilities (actual or contingent), condition (financial or otherwise) or
prospects of the Borrower or the Borrower and its Subsidiaries taken as a
whole; (ii) a material impairment of the ability of the Borrower to
perform its obligations under any Loan Document to which it is a party; or
(iii) a material adverse change upon the legality, validity, binding
effect or enforceability against the Borrower of any Loan Document to
which it is a party.
"MOODY'S" means Xxxxx'x Investors Service, Inc. or any successor
thereto.
"MORTGAGE BOND INDENTURES" means the indentures listed on Schedule
III hereto.
"MULTIEMPLOYER PLAN" means a "multiemployer plan", as defined in
Section 4001(a)(3) of ERISA, which is subject to Title IV of ERISA and to
which the Borrower or any ERISA Affiliate of the Borrower is making or has
an obligation to make
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contributions, or has within any of the preceding five plan years made or
had an obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means a "single employer plan", as defined
in Section 4001(a)(15) of ERISA, which is subject to Title IV of ERISA and
(i) is maintained for employees of the Borrower or an ERISA Affiliate of
the Borrower and at least one Person other than the Borrower and its ERISA
Affiliates or (ii) was so maintained and in respect of which the Borrower
or an ERISA Affiliate of the Borrower could have liability under Section
4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"NON-PERFORMING LENDER" has the meaning assigned to that term in
Section 2.03(e).
"NONRECOURSE DEBT" means Debt of any Subsidiary of the Borrower (i)
as to which (A) the Borrower provides no credit support of any kind
(including any undertaking, agreement or instrument that would constitute
Debt), (B) the Borrower is not directly or indirectly liable as a
guarantor or otherwise, (C) the Borrower is not the lender or other type
of creditor, or (D) the relevant legal documents do not provide that the
lenders or other type of creditors with respect thereto will have any
recourse to the stock or assets of the Borrower and (ii) no default with
respect to which would permit, upon notice, lapse of time or both, any
holder of any other Debt (other than the Advances, any Note and the Debt
under the Note Purchase Agreement, dated as of October 15, 2003, among
Alliant Energy Corporate Services, Inc. ("Services"), the Borrower and the
"Purchasers" party thereto relating to the issuance by Services of its
4.55% Guaranteed Senior Notes due 2008) of the Borrower to declare a
default on such other Debt or cause the payment thereof to be accelerated
or payable prior to its stated maturity. For the avoidance of doubt, if
the Borrower provides credit support that is limited in its drawable
amount for any portion of Debt of any Subsidiary of the Borrower that
would be considered Nonrecourse Debt but for the provision of such credit
support, such Debt shall be considered Nonrecourse Debt to the extent that
it is not so supported.
"NOTE" means a promissory note issued at the request of a Lender
pursuant to Section 2.15, in substantially the form of Exhibit 1.01
hereto, evidencing the aggregate indebtedness of the Borrower to such
Lender resulting from the Advances made by such Lender.
"NOTICE OF BORROWING" has the meaning assigned to that term in
Section 2.02(a).
"NOTICE OF CONVERSION" has the meaning assigned to that term in
Section 2.10.
"OECD" means the Organization for Economic Cooperation and
Development.
"OTHER TAXES" has the meaning assigned to that term in Section
2.16(b).
"OUTSTANDING CREDITS" means, on any date of determination, an amount
equal to the sum of (i) the aggregate principal amount of all Borrowings
outstanding on such date plus (ii) the LC Outstandings on such date.
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"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor entity).
"PERCENTAGE" means, for any Lender on any date of determination, the
percentage obtained by dividing such Lender's Commitment on such day by
the total of the Commitments on such date, and multiplying the quotient so
obtained by 100%.
"PERSON" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
"PUHCA" means the Public Utility Holding Company Act of 1935, as
amended from time to time.
"REFERENCE BANKS" means Wachovia, Barclays Bank PLC and any
additional or substitute Lenders as may be selected from time to time to
act as Reference Banks hereunder by the Agent.
"REFERENCE RATINGS" means (i) (A) the ratings assigned by S&P and
Moody's to the senior unsecured non-credit-enhanced long term debt of the
Borrower (the "REFERENCE SECURITIES") or, (B) in the event that only one
of S&P and Moody's has assigned a rating to the Reference Securities, the
rating assigned by one of S&P and Moody's to the Reference Securities
together with the issuer rating of the Borrower assigned by the other of
S&P and Moody's or, (C) in the event that no Reference Securities are
rated, the issuer ratings assigned to the Borrower by S&P and Moody's, or
(ii) in the event that none of the circumstances in clause (i) applies,
(A) the ratings assigned by S&P and Moody's to the senior unsecured
long-term debt of AER that is guaranteed by the Borrower (the "AER
REFERENCE SECURITIES") or, (B) in the event that only one of S&P and
Moody's has assigned a rating to the AER Reference Securities, the rating
assigned by one of S&P and Moody's to the AER Reference Securities
together with the issuer rating of AER assigned by the other of S&P and
Moody's or, (C) in the event that no AER Reference Securities are rated,
the issuer ratings assigned to AER by S&P and Moody's; provided, however,
that in any case in which an issuer rating assigned by S&P is used to
determine the Reference Ratings, the rating level that is one notch below
the issuer rating assigned by S&P shall be used to determine the Reference
Ratings.
"REGISTER" has the meaning assigned to that term in Section 8.07(c).
"REPORT" has the meaning assigned to that term in Section
5.01(h)(iv).
"REQUEST FOR ISSUANCE" means a request made pursuant to Section
2.03(a) in the form of Exhibit 2.03.
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"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor thereto.
"SECOND SUPPLEMENTAL ORDER" means the order or orders of the
Securities and Exchange Commission under the PUHCA authorizing the
Borrower to obtain Extensions of Credit and to perform its obligations
under this Agreement after December 31, 2007.
"SENIOR FINANCIAL OFFICER" means the President, the Chief Executive
Officer, the Chief Financial Officer or the Treasurer of the Borrower.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary of the Borrower that,
on a consolidated basis with any of its Subsidiaries as of any date of
determination, accounts for more than 20% of the consolidated assets
(valued at book value) of the Borrower and its Subsidiaries.
"SINGLE EMPLOYER PLAN" means a "single employer plan", as defined in
Section 4001(a)(15) of ERISA, which is subject to Title IV of ERISA and
which (i) is maintained for employees of the Borrower or an ERISA
Affiliate of the Borrower and no Person other than the Borrower and its
ERISA Affiliates, or (ii) was so maintained and in respect of which the
Borrower or an ERISA Affiliate of the Borrower could have liability under
Section 4069 of ERISA in the event such plan has been or were to be
terminated.
"SPC" has the meaning assigned to that term in Section 8.07(i).
"SUBSIDIARY" means, with respect to any Person, any corporation or
unincorporated entity of which more than 50% of the outstanding Equity
Interests having ordinary voting power (irrespective of whether at the
time Equity Interests of any other class or classes of such corporation or
entity shall or might have voting power upon the occurrence of any
contingency) is at the time owned by said Person, either directly or
through one or more other Subsidiaries. In the case of an unincorporated
entity, a Person shall be deemed to have more than 50% of interests having
ordinary voting power only if such Person's vote in respect of such
interests comprises more than 50% of the total voting power of all such
interests in the unincorporated entity.
"SUPPLEMENTAL ORDER" means, collectively, the First Supplemental
Order and the Second Supplemental Order.
"TAXES" has the meaning assigned to that term in Section 2.16(a).
"TERMINATION DATE" means the earlier to occur of (i) July 26, 2009
and (ii) the date of termination or reduction in whole of the Commitments
pursuant to Section 2.05 or 6.01.
"TYPE" has the meaning assigned to that term (i) in the definition
of "Advance" when used in such context and (ii) in the definition of
"Borrowing" when used in such context.
15
"UNMATURED DEFAULT" means an event that, with the giving of notice
or lapse of time, or both, would constitute an Event of Default.
"UTILITIES" means, collectively, WPL and IPL.
"UTILITY FACILITIES" means (i) the $300,000,000 Credit Agreement,
dated the date hereof, among IPL, the banks named therein and Wachovia, as
administrative agent; and (ii) the $250,000,000 Credit Agreement, dated
the date hereof, among WPL, the banks named therein and Wachovia, as
administrative agent.
"UTILIZATION PERCENTAGE" means, as of any time for the determination
thereof, the percentage obtained by dividing the aggregate Outstanding
Credits by the aggregate Commitments then in effect.
"WACHOVIA" has the meaning assigned to that term in the Preamble to
this Agreement.
"WPL" means Wisconsin Power and Light Company, a Wisconsin
corporation.
SECTION 1.02. COMPUTATION OF TIME PERIODS. Unless otherwise indicated,
each reference in this Agreement to a specific time of day is a reference to
Charlotte, North Carolina time. In the computation of periods of time under this
Agreement, any period of a specified number of days or months shall be computed
by including the first day or month occurring during such period and excluding
the last such day or month. In the case of a period of time "from" a specified
date "to" or "until" a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but excluding".
SECTION 1.03. COMPUTATIONS OF OUTSTANDINGS. Whenever reference is made in
this Agreement to the "principal amount outstanding" on any date under this
Agreement, such reference shall refer to the aggregate principal amount of all
Advances outstanding on such date after giving effect to all Advances to be made
on such date and the application of the proceeds thereof.
SECTION 1.04. ACCOUNTING TERMS. Except as otherwise expressly provided
herein, all accounting terms used herein shall be interpreted, and all financial
statements and certificates and reports as to financial matters required to be
delivered to the Lenders hereunder shall be prepared, in accordance with
accounting principles generally accepted in the United States of America
("GAAP") applied on a consistent basis. With respect to (and only with respect
to) determining compliance with this Agreement, all calculations shall (except
as otherwise expressly provided herein) be made by application of GAAP applied
on a basis consistent with the most recent annual or quarterly financial
statements delivered pursuant to Section 5.01(h) (or prior to the delivery of
the first financial statements pursuant to Section 5.01(h), consistent with the
financial statements described in Section 4.01(f)); provided, however, if (i)
the Borrower shall object to determining such compliance on such basis at the
time of delivery of such financial statements due to any change in GAAP or the
rules promulgated with respect thereto or (ii) the Administrative Agent or the
Majority Lenders shall so object in writing within 30 days after delivery of
such financial statements, then such calculations shall be made on a basis
16
consistent with the most recent financial statements delivered by the Borrower
to the Lenders as to which no such objection shall have been made.
ARTICLE II
AMOUNTS AND TERMS OF THE EXTENSIONS OF CREDIT
SECTION 2.01. THE ADVANCES.
(a) Each Lender severally agrees, on the terms and conditions hereinafter
set forth, to make Advances to the Borrower from time to time, during the period
from and including the date hereof, to and up to, but excluding, the Termination
Date, in an aggregate outstanding amount not to exceed at any time such Lender's
Available Commitment. Each Borrowing shall be in an aggregate amount not less
than $5,000,000 (or, if lower, the amount of the Available Commitments) or an
integral multiple of $1,000,000 in excess thereof and shall consist of Advances
of the same Type made on the same day by the Lenders ratably according to their
respective Percentages. Within the limits of each Lender's Commitment and as
hereinabove and hereinafter provided, the Borrower may request Borrowings
hereunder, and repay or prepay Advances pursuant to Section 2.11 and utilize the
resulting increase in the Available Commitments for further Extensions of Credit
in accordance with the terms hereof.
(b) In no event shall the Borrower be entitled to request or receive any
Borrowings that would cause the Outstanding Credits to exceed the Commitments.
SECTION 2.02. MAKING THE ADVANCES.
(a) Each Borrowing shall be made on notice, given not later than 11:00
a.m. (i) on the third Business Day prior to the date of the proposed Borrowing,
in the case of a Borrowing comprised of Eurodollar Rate Advances and (ii) on the
date of the proposed Borrowing, in the case of a Borrowing comprised of Base
Rate Advances, in each case by the Borrower to the Agent, which shall give to
each Lender prompt notice thereof by telecopier, telex or cable. Each such
notice of a Borrowing (a "NOTICE OF BORROWING") shall be by telecopier, telex or
cable, in substantially the form of Exhibit 2.02(a) hereto, specifying therein
the requested (A) date of such Borrowing, (B) Type of Advances comprising such
Borrowing, (C) aggregate amount of such Borrowing and (D) in the case of a
Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for
each such Advance. Each Lender shall, before (x) 12:00 noon on the date of such
Borrowing, in the case of a Borrowing comprised of Eurodollar Rate Advances, and
(y) 1:00 p.m. on the date of such Borrowing, in the case of a Borrowing
comprised of Base Rate Advances, make available for the account of its
Applicable Lending Office to the Agent at its address referred to in Section
8.02, in same day funds, such Lender's ratable portion of such Borrowing. After
the Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Agent will promptly make such funds
available to the Borrower at the Agent's aforesaid address.
(b) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing which the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date
17
specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss,
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Eurodollar Rate
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
(c) Unless the Agent shall have received notice from a Lender prior to the
time of any Borrowing that such Lender will not make available to the Agent such
Lender's Advance as part of such Borrowing, the Agent may assume that such
Lender has made such Advance available to the Agent on the time of such
Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent
may, in reliance upon such assumption, make available to the Borrower on such
time a corresponding amount. If and to the extent that such Lender shall not
have so made such Advance available to the Agent, such Lender and the Borrower
severally agree to repay to the Agent forthwith on demand such corresponding
amount, together with interest thereon, for each day from the time such amount
is made available to the Borrower until the time such amount is repaid to the
Agent, at (i) in the case of the Borrower, the interest rate applicable at the
time to Advances comprising such Borrowing and (ii) in the case of such Lender,
the Federal Funds Rate. If such Lender shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Lender's
Advance as part of such Borrowing for purposes of this Agreement.
(d) The failure of any Lender to make the Advance to be made by it as part
of any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Lender shall
be responsible for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Borrowing.
SECTION 2.03. LETTERS OF CREDIT.
(a) Subject to the terms and conditions hereof, each Letter of Credit
shall be issued (or the stated maturity thereof extended or terms thereof
modified or amended) on not less than two Business Days' prior notice thereof by
delivery of a Request for Issuance to the Agent and the LC Issuing Bank
substantially in the form attached hereto in Exhibit 2.03. Each Request for
Issuance shall specify a statement of drawing conditions applicable to such
Letter of Credit, and if such Request for Issuance relates to an amendment or
modification of a Letter of Credit, it shall be accompanied by the consent of
the beneficiary of the Letter of Credit thereto. The expiry of such Letter of
Credit shall be no later than five Business Days' prior to the Termination Date.
Each Request for Issuance shall be irrevocable unless modified or rescinded by
the Borrower not less than one day prior to the proposed date of issuance (or
effectiveness) specified therein. Not later than 12:00 noon on the proposed date
of issuance (or effectiveness) specified in such Request for Issuance, and upon
fulfillment of the applicable conditions precedent and the other requirements
set forth herein, the LC Issuing Bank shall issue (or extend, amend or modify)
such Letter of Credit and provide notice and a copy thereof to the Agent, which
shall promptly furnish copies thereof to the Lenders.
(b) No Letter of Credit shall be requested or issued hereunder if, after
the issuance thereof, the Outstanding Credits would exceed the total
Commitments.
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(c) The Borrower hereby agrees to pay to the Agent for the account of the
LC Issuing Bank and, if they shall have purchased participations in the
reimbursement obligations of the Borrower pursuant to subsection (d) below, the
Lenders, on demand made by the LC Issuing Bank to the Borrower, on and after
each date on which the LC Issuing Bank shall pay any amount under any Letter of
Credit issued by the LC Issuing Bank, a sum equal to the amount so paid plus
interest on such amount from the date so paid by the LC Issuing Bank until
repayment to the LC Issuing Bank in full at a fluctuating interest rate per
annum equal to the interest rate applicable to Base Rate Advances plus, if any
amount paid by the LC Issuing Bank under a Letter of Credit is not reimbursed by
the Borrower within three Business Days, 2%.
(d) If the LC Issuing Bank shall not have been reimbursed in full for any
payment made by the LC Issuing Bank under a Letter of Credit issued by the LC
Issuing Bank on the date of such payment, the LC Issuing Bank shall give the
Agent and each Lender prompt notice thereof (an "LC PAYMENT NOTICE") no later
than 12:00 noon on the Business Day immediately succeeding the date of such
payment by the LC Issuing Bank. Each Lender severally agrees to purchase a
participation in the reimbursement obligation of the Borrower to the LC Issuing
Bank by paying to the Agent for the account of the LC Issuing Bank an amount
equal to such Lender's Percentage of such unreimbursed amount paid by the LC
Issuing Bank, plus interest on such amount at a rate per annum equal to the
Federal Funds Rate from the date of the payment by the LC Issuing Bank to the
date of payment to the LC Issuing Bank by such Lender. Each such payment by a
Lender shall be made not later than 3:00 P.M. on the later to occur of (i) the
Business Day immediately following the date of such payment by the LC Issuing
Bank and (ii) the Business Day on which such Lender shall have received an LC
Payment Notice from the LC Issuing Bank. Each Lender's obligation to make each
such payment to the Agent for the account of the LC Issuing Bank shall be
several and shall not be affected by the occurrence or continuance of an Event
of Default or the failure of any other Lender to make any payment under this
Section 2.03(d) or the failure of the LC Issuing Bank to provide the LC Payment
Notice by 12:00 noon on the Business Day immediately succeeding the date of
payment under a Letter of Credit by the LC Issuing Bank. Each Lender further
agrees that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
(e) The failure of any Lender to make any payment to the Agent for the
account of the LC Issuing Bank in accordance with subsection (d) above shall not
relieve any other Lender of its obligation to make payment, but no Lender shall
be responsible for the failure of any other Lender. If any Lender (a
"NON-PERFORMING LENDER") shall fail to make any payment to the Agent for the
account of the LC Issuing Bank in accordance with subsection (d) above within
five Business Days after the LC Payment Notice relating thereto, then, for so
long as such failure shall continue, the LC Issuing Bank shall be deemed, for
purposes of Section 8.01 and Article VI hereof, to be a Lender owed a Borrowing
in an amount equal to the outstanding principal amount due and payable by such
Non-Performing Lender to the Agent for the account of the LC Issuing Bank
pursuant to subsection (d) above. Any Non-Performing Lender and the Borrower
(without waiving any claim against such Lender for such Lender's failure to
purchase a participation in the reimbursement obligations of the Borrower under
subsection (d) above) severally agree to pay to the Agent for the account of the
LC Issuing Bank forthwith on demand such amount, together with interest thereon
for each day from the date such Lender would have purchased its participation
had it complied with the requirements of subsection (d) above until the date
such amount is paid to the Agent at (i) in the case of the Borrower, the
interest rate applicable at the
19
time to Base Rate Advances and (ii) in the case of such Lender, the rate
applicable to Base Rate Advances plus 1%.
(f) The payment obligations of each Lender under Section 2.03(d) and of
the Borrower under this Agreement in respect of any payment under any Letter of
Credit by the LC Issuing Bank shall be unconditional and irrevocable, and shall
be paid strictly in accordance with the terms of this Agreement under all
circumstances, including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of this Agreement, any
other Loan Document or any other agreement or instrument relating thereto
or to such Letter of Credit;
(ii) any amendment or waiver of, or any consent to departure from,
the terms of this Agreement, any other Loan Document or such Letter of
Credit;
(iii) the existence of any claim, set-off, defense or other right
which the Borrower may have at any time against any beneficiary, or any
transferee, of such Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the LC Issuing Bank, or
any other Person, whether in connection with this Agreement, the
transactions contemplated hereby, thereby or by such Letter of Credit, or
any unrelated transaction;
(iv) any statement or any other document presented under such Letter
of Credit reasonably proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(v) payment in good faith by the LC Issuing Bank under the Letter of
Credit issued by the LC Issuing Bank against presentation of a draft or
certificate that does not comply with the terms of such Letter of Credit;
or
(vi) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing.
(g) The Borrower assumes all risks of the acts and omissions of any
beneficiary or transferee of any Letter of Credit. Neither the LC Issuing Bank,
the Lenders nor any of their respective officers, directors, employees, agents
or Affiliates shall be liable or responsible for (i) the use that may be made of
such Letter of Credit or any acts or omissions of any beneficiary or transferee
thereof in connection therewith; (ii) the validity, sufficiency or genuineness
of documents, or of any endorsement thereon, even if such documents should prove
to be in any or all respects invalid, insufficient, fraudulent or forged; (iii)
payment by the LC Issuing Bank against presentation of documents that do not
comply with the terms of such Letter of Credit, including failure of any
documents to bear any reference or adequate reference to such Letter of Credit;
or (iv) any other circumstances whatsoever in making or failing to make payment
under such Letter of Credit. Notwithstanding any provision to the contrary
contained in any Loan Document, the Borrower and each Lender shall have the
right to bring suit against the LC Issuing Bank, and the LC Issuing Bank shall
be liable to the Borrower and any Lender, to the extent of any direct, as
opposed to consequential, damages suffered by the Borrower or such
20
Lender which the Borrower or such Lender proves were caused by the LC Issuing
Bank's willful misconduct or gross negligence, including, in the case of the
Borrower, the LC Issuing Bank's willful failure to make timely payment under
such Letter of Credit following the presentation to it by the beneficiary
thereof of a draft and accompanying certificate(s) that strictly comply with the
terms and conditions of such Letter of Credit. In furtherance and not in
limitation of the foregoing, the LC Issuing Bank may accept sight drafts and
accompanying certificates presented under the Letter of Credit issued by the LC
Issuing Bank that appear on their face to be in order, without responsibility
for further investigation, regardless of any notice or information to the
contrary, and payment against such documents shall not constitute willful
misconduct or gross negligence by the LC Issuing Bank. Notwithstanding the
foregoing, no Lender shall be obligated to indemnify the Borrower for damages
caused by the LC Issuing Bank's willful misconduct or gross negligence.
(h) If any Letter of Credit contains a provision pursuant to which it is
deemed to be automatically renewed unless notice of termination of such Letter
of Credit is given by the LC Issuing Bank, the LC Issuing Bank shall timely give
notice of termination if (i) as of close of business on the seventeenth day
prior to the last day upon which the LC Issuing Bank's notice of termination may
be given to the beneficiaries of such Letter of Credit, the LC Issuing Bank has
received a notice of termination from the Borrower or a notice from the Agent
that the conditions to issuance of such Letter of Credit have not been
satisfied, (ii) the renewed Letter of Credit would have a term not permitted by
Section 2.03(a) or (iii) such Letter of Credit is the Existing Letter of Credit.
SECTION 2.04. FEES.
(a) The Borrower agrees to pay to the Agent for the account of each Lender
the Facility Fee, from the date hereof, in the case of each Bank, and from the
effective date specified in the Lender Assignment pursuant to which it became a
Lender, in the case of each other Lender, until the later of the Termination
Date and the date all Advances are paid in full, payable quarterly in arrears on
the last day of each March, June, September and December during the term of such
Lender's Commitment, commencing September 30, 2004, and on the later of the
Termination Date and the date all Advances are paid in full.
(b) The Borrower shall pay to the Agent for the account of each Lender a
fee (the "LC FEE") on the average daily amount of the sum of the undrawn stated
amounts of all Letters of Credit outstanding on each such day, from the date
hereof until the later to occur of the Termination Date and the date on which no
Letters of Credit are outstanding, payable on the last day of each March, June,
September and December (commencing September 30, 2004) and such later date, at a
rate equal at all times to the Applicable Margin in effect from time to time for
Eurodollar Rate Advances. In addition, the Borrower shall pay to the LC Issuing
Bank such fees for the issuance and maintenance of Letters of Credit and for
drawings thereunder as may be separately agreed between the Borrower and the LC
Issuing Bank.
(c) In addition to the fees provided for in subsections (a) and (b) above,
the Borrower shall pay (i) to the Agent and the LC Issuing Bank, for their own
accounts, such fees as are provided for in the Administrative Agency and
Arranger Fee Letter and (ii) to the Lenders and
21
the Co-Lead Arrangers, for their own accounts, such fees as are provided for in
the Administrative Agency and Arranger Fee Letter.
SECTION 2.05. CHANGES IN THE COMMITMENTS.
(a) The Borrower shall have the right, upon at least three Business Days'
notice to the Agent, to terminate in whole or reduce ratably in part the unused
portions of the respective Commitments of the Lenders; provided that the
aggregate amount of the Commitments of the Lenders shall not be reduced to an
amount which is less than the aggregate principal amount of the Extensions of
Credit then outstanding; and provided, further, that each partial reduction
shall be in a minimum amount of $10,000,000 or any whole multiple of $1,000,000
in excess thereof.
(b) On the Termination Date, the Commitments of the Lenders shall be
reduced to zero.
(c) Any termination or reduction of the Commitments under this Section
2.05 shall be irrevocable, and the Commitments shall not thereafter be
reinstated.
(d) On any date prior to the Termination Date, the Borrower may increase
the aggregate amount of the Commitments by an amount not less than $5,000,000
and to an amount not to exceed $200,000,000 (any such increase, a "COMMITMENT
INCREASE") by designating either one or more of the existing Lenders (each of
which, in its sole discretion, may determine whether and to what degree it may
participate in such Commitment Increase) or one or more other Eligible Assignees
reasonably acceptable to the Agent that at the time agree, in the case of any
such Eligible Assignee that is an existing Lender, to increase its Commitment
(an "INCREASING LENDER") and, in the case of any other Eligible Assignee (an
"ADDITIONAL LENDER"), to become a party to this Agreement.
(i) The sum of the increases in the Commitments of the Increasing
Lenders pursuant to this subsection (d) plus the Commitments of the
Additional Lenders upon giving effect to the Commitment Increase shall not
in the aggregate exceed the amount of the Commitment Increase. The
Borrower shall provide prompt notice of any proposed Commitment Increase
pursuant to this Section 2.05(d) to the Agent, which shall promptly
provide a copy of such notice to the Lenders;
(ii) Any Commitment Increase shall become effective upon (A) the
receipt by the Agent of (1) an agreement in form and substance
satisfactory to the Agent signed by the Borrower, each Increasing Lender
and each Additional Lender, setting forth the new Commitments of each such
Lender and setting forth the agreement of each Additional Lender to become
a party to this Agreement and to be bound by all the terms and provisions
hereof binding upon each Lender, and (2) certified copies of the
Commitment Increase Approvals and such opinions of counsel for the
Borrower with respect to the Commitment Increase as the Agent may
reasonably request, (B) the funding by each Lender of the Advance(s) to be
made by each such Lender described in paragraph (iii) below and (C)
receipt by the Agent of a certificate (the statements contained in which
shall be true) of a duly authorized officer of the Borrower stating that
both before and after giving effect to such Commitment Increase (1) no
Event of Default has occurred and is continuing, (2) all representations
and warranties made by such Borrower in this
22
Agreement are true and correct in all material respects, and (3) all
Commitment Increase Approvals have been obtained and are in full force and
effect.
(iii) Upon the effective date of any Commitment Increase, the
Borrower shall prepay the outstanding Advances (if any) in full, and shall
simultaneously make new Borrowings hereunder in an amount equal to such
prepayment, so that, after giving effect thereto, the Advances are held
ratably by the Lenders in accordance with their respective Percentages
(after giving effect to such Commitment Increase).
(iv) Notwithstanding any provision contained herein to the
contrary, from and after the date of any Commitment Increase and the
making of any Advances on such date pursuant to this subsection (d), all
calculations and payments of the Facility Fee and the LC Fee and of
interest on the Advances shall take into account the actual Commitment of
each Lender and such Lender's Percentage of the Outstanding Credits during
the relevant period of time.
SECTION 2.06. REPAYMENT OF ADVANCES. The Borrower shall repay the
principal amount of each Advance made by each Lender no later than on the
Termination Date.
SECTION 2.07. INTEREST ON ADVANCES. The Borrower shall pay interest on the
unpaid principal amount of each Advance owing to each Lender from the date of
such Advance until such principal amount shall be paid in full, at the
Applicable Rate for such Advance (except as otherwise provided in this Section
2.07), payable as follows:
(a) Base Rate Advances. If such Advance is a Base Rate Advance,
interest thereon shall be payable quarterly in arrears on the last day of
each March, June, September and December, on the date of any Conversion of
such Base Rate Advance and on the date such Base Rate Advance shall become
due and payable or shall otherwise be paid in full; provided that at any
time an Event of Default shall have occurred and be continuing, each Base
Rate Advance shall bear interest payable on demand, at a rate per annum
equal at all times to the Default Rate.
(b) Eurodollar Rate Advances. If such Advance is a Eurodollar Rate
Advance, interest thereon shall be payable on the last day of such
Interest Period and, if the Interest Period for such Advance has a
duration of more than three months, on that day of each third month during
such Interest Period that corresponds to the first day of such Interest
Period (or, if any such month does not have a corresponding day, then on
the last day of such month); provided that at any time an Event of Default
shall have occurred and be continuing, each Eurodollar Rate Advance shall
bear interest payable on demand, at a rate per annum equal at all times to
the Default Rate.
SECTION 2.08. ADDITIONAL INTEREST ON EURODOLLAR RATE ADVANCES. The
Borrower shall pay to Agent for the account of each Lender any costs actually
incurred by such Lender with respect to Eurodollar Rate Advances that are
attributable to such Lender's compliance with regulations of the Board of
Governors of the Federal Reserve System requiring the maintenance of reserves
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities. Such costs shall be paid to the Agent for the account of such
Lender in the form of additional
23
interest on the unpaid principal amount of each Eurodollar Rate Advance of such
Lender, from the date of such Advance until such principal amount is paid in
full, at an interest rate per annum equal at all times to the remainder obtained
by subtracting (i) the Eurodollar Rate for the Interest Period for such Advance
from (ii) the rate obtained by dividing such Eurodollar Rate by a percentage
equal to 100% minus the Eurodollar Reserve Percentage of such Lender for such
Interest Period, payable on each date on which interest is payable on such
Advance. Such additional interest shall be determined by such Lender and
notified to the Borrower through the Agent. A certificate as to the amount of
such additional interest, submitted to the Borrower and the Agent by such
Lender, shall be conclusive and binding for all purposes, absent manifest error,
provided that the determination thereof shall have been made by such Lender in
good faith.
SECTION 2.09. INTEREST RATE DETERMINATION.
(a) Each Reference Bank agrees to furnish to the Agent timely information
for the purpose of determining each Eurodollar Rate. If any one or more of the
Reference Banks shall not furnish such timely information to the Agent for the
purpose of determining any such interest rate, the Agent shall determine such
interest rate on the basis of timely information furnished by the remaining
Reference Banks.
(b) The Agent shall give prompt notice to the Borrower and the Lenders of
the applicable interest rate determined by the Agent for purposes of Section
2.07(a) or (b), and the applicable rate, if any, furnished by each Reference
Bank for the purpose of determining the applicable interest rate under Section
2.07(b).
(c) If fewer than two Reference Banks furnish timely information to the
Agent for determining the Eurodollar Rate, due to the unavailability of funds to
such Reference Banks in the relevant financial markets:
(i) the Agent shall forthwith notify the Borrower and the Lenders
that the interest rate cannot be determined for Eurodollar Rate Advances;
(ii) each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a
Base Rate Advance (or if such Advance is then a Base Rate Advance, will
continue as a Base Rate Advance); and
(iii) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended until the Agent shall
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the Majority Lenders
notify the Agent that the Eurodollar Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Majority Lenders of
making, funding or maintaining their respective Eurodollar Rate Advances for
such Interest Period, the Agent shall forthwith so notify the Borrower and the
Lenders, whereupon:
(i) each Eurodollar Rate Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert into a Base
Rate Advance; and
24
(ii) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended until the Agent shall
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
(e) If the Borrower shall fail to (i) select the duration of any Interest
Period for any Eurodollar Rate Advance in accordance with the provisions
contained in the definition of "INTEREST PERIOD" in Section 1.01 or (ii) provide
a Notice of Conversion with respect to any Eurodollar Rate Advance on or prior
to 12:00 noon on the third Business Day prior to the last day of the Interest
Period applicable thereto, the Agent will forthwith so notify the Borrower and
the Lenders and such Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance.
(f) On the date on which the aggregate unpaid principal amount of Advances
comprising any Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than the product of (i) $1,000,000 and (ii) the number of
Lenders on such date, such Advances shall, if they are Advances of a Type other
than Base Rate Advances, automatically Convert into Base Rate Advances, and on
and after such date the right of the Borrower to Convert such Advances into
Advances of a Type other than Base Rate Advances shall terminate; provided,
however, that if and so long as each such Advance shall be of the same Type and
have the same Interest Period as Advances comprising another Borrowing or other
Borrowings, and the aggregate unpaid principal amount of all such Advances shall
equal or exceed the product of (i) $1,000,000 and (ii) the number of Lenders on
such date, the Borrower shall have the right to continue all such Advances as,
or to Convert all such Advances into, Advances of such Type having such Interest
Period.
(g) Upon the occurrence and during the continuance of any Event of
Default, each outstanding Eurodollar Rate Advance shall automatically Convert
into a Base Rate Advance at the end of the Interest Period then in effect for
such Eurodollar Rate Advance.
SECTION 2.10. VOLUNTARY CONVERSION OF ADVANCES. Subject to the conditions
set forth below, the Borrower may, on any Business Day, by delivering a notice
of Conversion (a "NOTICE OF CONVERSION") to the Agent not later than 12:00 noon
(i) on the third Business Day prior to the date of the proposed Conversion, in
the case of a Conversion to or in respect of Eurodollar Rate Advances and (ii)
on the date of the proposed Conversion, in the case of a Conversion to or in
respect of Base Rate Advances, and subject to the provisions of Sections 2.09
and 2.14, Convert all Advances of one Type comprising the same Borrowing into
Advances of another Type; provided, however, that, in the case of any Conversion
of any Eurodollar Rate Advances into Base Rate Advances on a day other than the
last day of an Interest Period for such Eurodollar Rate Advances, the Borrower
shall be obligated to reimburse the Lenders in respect thereof pursuant to
Section 8.04(b). Each such Notice of Conversion shall be in substantially the
form of Exhibit 2.10 and shall, within the restrictions specified above, specify
(A) the date of such Conversion, (B) the Advances to be Converted, (C) if such
Conversion is into Eurodollar Rate Advances, the duration of the Interest Period
for each such Advance, and (D) the aggregate amount of Advances proposed to be
Converted. Notwithstanding the foregoing, the Borrower may not Convert Base Rate
Advances into Eurodollar Rate Advances and may not select a new Interest Period
for Eurodollar Rate Advances at any time an Event of Default has occurred and is
continuing.
25
SECTION 2.11. OPTIONAL PREPAYMENTS OF ADVANCES. The Borrower may, upon at
least three Business Days' notice to the Agent stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is given the
Borrower shall, prepay for the ratable account of the Lenders the outstanding
principal amounts of the Advances comprising part of the same Borrowing in whole
or ratably in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid; provided, however, that each partial
prepayment shall be in an aggregate principal amount not less than $1,000,000
(or, if lower, the principal amount outstanding hereunder on the date of such
prepayment) or an integral multiple of $1,000,000 in excess thereof. In the case
of any such prepayment of a Eurodollar Rate Advance, the Borrower shall be
obligated to reimburse the Lenders in respect thereof pursuant to Section
8.04(b). Except as provided in this Section 2.11, the Borrower shall have no
right to prepay any principal amount of any Advances.
SECTION 2.12. INCREASED COSTS.
(a) If, due to either (i) the introduction of or any change (other than
any change by way of imposition or increase of reserve requirements, in the case
of Eurodollar Rate Advances, included in the Eurodollar Rate Reserve Percentage)
in or to the interpretation of any law or regulation or (ii) the compliance with
any guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances, then the Borrower shall from time to time, upon demand
by such Lender (with a copy of such demand to the Agent), pay to the Agent for
the account of such Lender additional amounts sufficient to compensate such
Lender for such increased cost. A certificate as to the amount of such increased
cost, submitted to the Borrower and the Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error, provided that
the determination thereof shall have been made by such Lender in good faith.
(b) If any Lender determines that compliance with any law or regulation or
any guideline or request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital is increased by or
based upon the existence of such Lender's commitment to lend hereunder and other
commitments of this type, then, upon demand by such Lender (with a copy of such
demand to the Agent), the Borrower shall immediately pay to the Agent for the
account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's Commitment. A certificate as to such amounts submitted to the Borrower
and the Agent by such Lender, describing in reasonable detail the manner in
which such amounts have been calculated, shall be conclusive and binding for all
purposes, absent manifest error, provided that the determination and allocation
thereof shall have been made by such Lender in good faith.
(c) Notwithstanding any provision of subsection (a) or (b) above to the
contrary, no Lender shall be entitled to demand compensation or be compensated
thereunder to the extent that such compensation relates to any period of time
more than 60 days prior to the date upon which such Lender first notified the
Borrower of the occurrence of the event entitling such Lender to
26
such compensation (unless, and to the extent, that any such compensation so
demanded shall relate to the retroactive application of any event so notified to
the Borrower).
SECTION 2.13. ILLEGALITY. Notwithstanding any other provision of this
Agreement to the contrary, if any Lender (the "AFFECTED LENDER") shall notify
the Agent and the Borrower that the introduction of or any change in or to the
interpretation of any law or regulation makes it unlawful, or any central bank
or other governmental authority asserts that it is unlawful, for the Affected
Lender or its Eurodollar Lending Office to perform its obligations hereunder to
make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances
hereunder, all Eurodollar Rate Advances of the Affected Lender shall, on the
fifth Business Day following such notice from the Affected Lender, automatically
be Converted into a like number of Base Rate Advances, each in the amount of the
corresponding Eurodollar Rate Advance of the Affected Lender being so Converted
(each such Advance, as so Converted, being an "AFFECTED LENDER ADVANCE"), and
the obligation of the Affected Lender to make, maintain, or Convert Advances
into Eurodollar Rate Advances shall thereupon be suspended until the Agent shall
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist, or the Affected Lender has been replaced pursuant to
Section 8.07(g). For purposes of any prepayment under this Agreement, each
Affected Lender Advance shall be deemed to continue to be part of the same
Borrowing as the Eurodollar Rate Advances to which it corresponded at the time
of the Conversion of such Affected Lender Advance pursuant to this Section 2.13.
SECTION 2.14. PAYMENTS AND COMPUTATIONS.
(a) The Borrower shall make each payment hereunder not later than 1:00
p.m. on the day when due in Dollars to the Agent at its address referred to in
Section 8.02 in same day funds. The Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest or fees
ratably (other than amounts payable pursuant to Section 2.08, 2.16, or 8.04(b))
to the Lenders for the account of their respective Applicable Lending Offices,
and like funds relating to the payment of any other amount payable to any Lender
to such Lender for the account of its Applicable Lending Office, in each case to
be applied in accordance with the terms of this Agreement. Upon its acceptance
of a Lender Assignment and recording of the information contained therein in the
Register pursuant to Section 8.07(d), from and after the effective date
specified in such Lender Assignment, the Agent shall make all payments hereunder
in respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Lender Assignment shall make all appropriate adjustments
in such payments for periods prior to such effective date directly between
themselves.
(b) The Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder held by such Lender,
to charge from time to time against any or all of the Borrower's accounts with
such Lender any amount so due.
(c) All computations of interest based on clause (i) of the definition of
"Alternate Base Rate" and of the Facility Fees shall be made by the Agent on the
basis of a year of 365 or 366 days, as the case may be, and all computations of
interest based on the Eurodollar Rate and the LC Fee and the Federal Funds Rate
shall be made by the Agent, and all computations of interest pursuant to Section
2.09 shall be made by a Lender, on the basis of a year of 360 days, in each case
for the actual number of days (including the first day but excluding the last
day) occurring
27
in the period for which such interest or fees are payable. Each determination by
the Agent (or, in the case of Section 2.09, by a Lender) of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest
error, provided that such determination shall have been made by the Agent or
such Lender, as the case may be, in good faith.
(d) Whenever any payment hereunder shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or fees, as the case may be; provided,
however, that if such extension would cause payment of interest on or principal
of Eurodollar Rate Advances to be made in the next following calendar month,
such payment shall be made on the next preceding Business Day.
(e) Unless the Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Lenders hereunder that the Borrower
will not make such payment in full, the Agent may assume that the Borrower has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent that the Borrower shall not have so made such payment in full to the
Agent, each Lender shall repay to the Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Agent, at the Federal Funds Rate.
SECTION 2.15. NOTELESS AGREEMENT; EVIDENCE OF INDEBTEDNESS.
(a) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Advance made by such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(b) The Agent shall also maintain accounts in which it will record (i) the
amount of each Advance made hereunder, the Type thereof and the Interest Period
(if any) with respect thereto, (ii) the amount of any principal or interest due
and payable or to become due and payable from the Borrower to each Lender
hereunder, and (iii) the amount of any sum received by the Agent hereunder from
the Borrower and each Lender's share thereof.
(c) The entries maintained in the accounts maintained pursuant to
subsections (a) and (b) above shall be prima facie evidence of the existence and
amounts of the obligations therein recorded; provided, however, that the failure
of the Agent or any Lender to maintain such accounts or any error therein shall
not in any manner affect the obligation of the Borrower to repay such
obligations in accordance with their terms.
(d) Any Lender may request that its Advances be evidenced by a Note. In
such event, the Borrower shall prepare, execute and deliver to such Lender a
Note payable to the order of such Lender. Thereafter, the Advances evidenced by
such Note and interest thereon shall at all times (including after any
assignment pursuant to Section 8.07) be represented by one or more Notes payable
to the order of the payee named therein or any assignee pursuant to Section
8.07, except to the extent that any such Lender or assignee subsequently returns
any such Note for
28
cancellation and requests that such Advances once again be evidenced as
described in subsections (a) and (b) above.
SECTION 2.16. TAXES.
(a) Any and all payments by the Borrower hereunder and under the other
Loan Documents shall be made, in accordance with Section 2.14, free and clear of
and without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender, the LC Issuing Bank and the Agent, taxes
imposed on its overall net income and franchise taxes imposed on it by any
jurisdiction, unless such Lender, the LC Issuing Bank or the Agent (as the case
may be) would not have had such taxes imposed on it by such jurisdiction but for
such Lender's, the LC Issuing Bank's or the Agent's (as the case may be) having
entered into this Agreement, having consummated the transactions contemplated
hereby or having received payments by the Borrower hereunder or under the other
Loan Documents (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "TAXES").
If the Borrower shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under any other Loan Document to any Lender, the
LC Issuing Bank or the Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.16) such Lender, the
LC Issuing Bank or the Agent (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under any other Loan
Document or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or any other Loan Document (hereinafter referred to
as "OTHER TAXES").
(c) The Borrower will indemnify each Lender, the LC Issuing Bank and the
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.16) paid by such Lender, the LC Issuing Bank or the
Agent (as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted. This indemnification shall be
made within 30 days from the date such Lender, the LC Issuing Bank or the Agent
(as the case may be) makes written demand therefor. Nothing herein shall
preclude the right of the Borrower to contest any such Taxes or Other Taxes so
paid, and the Lenders in question, the LC Issuing Bank or the Agent (as the case
may be) will, following notice from, and at the expense of, the Borrower,
reasonably cooperate with the Borrower to preserve the Borrower's rights to
contest such Taxes or Other Taxes.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
will furnish to the Agent, at its address referred to in Section 8.02, the
original or a certified copy of a receipt evidencing payment thereof.
29
(e) The LC Issuing Bank and each Lender agrees that, on or prior to the
date upon which it shall become a party hereto, and upon the reasonable request
from time to time of the Borrower or the Agent, the LC Issuing Bank or such
Lender will deliver to the Borrower and the Agent either (i) a statement that it
is organized under the laws of a jurisdiction within the United States or (ii)
duly completed copies of such form or forms as may from time to time be
prescribed by the United States Internal Revenue Service indicating that the LC
Issuing Bank or such Lender is entitled to receive payments without deduction or
withholding of any United States federal income taxes, as permitted by the
Internal Revenue Code of 1986, as amended from time to time. The LC Issuing Bank
and each Lender that delivers to the Borrower and the Agent the form or forms
referred to in the preceding sentence further undertakes to deliver to the
Borrower and the Agent further copies of such form or forms, or successor
applicable form or forms, as the case may be, as and when any previous form
filed by it hereunder shall expire or shall become incomplete or inaccurate in
any respect. The LC Issuing Bank and each Lender represents and warrants that
each such form supplied by it to the Agent and the Borrower pursuant to this
subsection (e), and not superseded by another form supplied by it, is or will
be, as the case may be, complete and accurate.
(f) Any Lender claiming any additional amounts payable pursuant to this
Section 2.16 shall use its best efforts (consistent with its internal policy and
legal and regulatory restrictions) to change the jurisdiction of its Applicable
Lending Office if the making of such a change would avoid the need for, or
reduce the amount of, any such additional amounts that may thereafter accrue and
would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
(g) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.16 shall survive the payment in full of principal and interest
hereunder.
SECTION 2.17. SHARING OF PAYMENTS, ETC. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Advances made by it (other than
pursuant to Section 2.08, 2.12, 2.16 or 8.04(b)) or on account of the Borrower's
reimbursement obligations in respect of LC Outstandings in excess of its ratable
share of payments obtained by all the Lenders on account of the Advances or on
account of such reimbursement obligations, such Lender shall forthwith purchase
from the other Lenders such participations in the Advances made by them and such
reimbursement obligations as shall be necessary to cause such purchasing Lender
to share the excess payment ratably with each of them; provided, however, that
if all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery, together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.17
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation.
30
ARTICLE III
CONDITIONS TO EXTENSIONS OF CREDIT
SECTION 3.01. CONDITIONS PRECEDENT TO CLOSING. The Commitments of the
Lenders and the obligation of the LC Issuing Bank to issue Letters of Credit
shall not become effective unless the following conditions precedent shall have
been fulfilled:
(a) The Agent shall have received the following, each dated the date of
the Closing, in form and substance satisfactory to the Lenders and in sufficient
copies for the LC Issuing Bank and each Lender:
(i) this Agreement, duly executed by the Borrower, each Lender,
the LC Issuing Bank and the Agent;
(ii) each Note requested by a Lender pursuant to Section 2.15
payable to the order of each such Lender, duly completed and executed by
the Borrower;
(iii) copies of (A) the resolutions of the Board of Directors of the
Borrower approving this Agreement and the other Loan Documents to which it
is, or is to be, a party, and (B) all documents evidencing other necessary
corporate action on the part of the Borrower with respect to this
Agreement and the other Loan Documents, certified by the Secretary or an
Assistant Secretary of the Borrower;
(iv) a certificate of the Secretary or an Assistant Secretary of
the Borrower certifying the names, true signatures and incumbency of the
officers of the Borrower authorized to sign this Agreement and the other
Loan Documents to which it is, or is to be, a party;
(v) copies of the Certificate of Incorporation (or comparable
charter document) and by-laws of the Borrower, together with all
amendments thereto, certified by the Secretary or an Assistant Secretary
of the Borrower;
(vi) copies of all Governmental Approvals, if any, required in
connection with the execution, delivery and performance of this Agreement
and the other Loan Documents, certified by the Secretary or an Assistant
Secretary of the Borrower;
(vii) copies of the financial statements referred to in Section
4.01(f), certified by the Secretary or an Assistant Secretary of the
Borrower;
(viii) favorable opinions of:
(A) Xxxxx & Xxxxxxx LLP, special counsel for the
Borrower, in substantially the form of Exhibit 3.01(a)(viii)-1
and as to such other matters as the Majority Lenders, through
the Agent, may reasonably request;
(B) Xxxxxxx X. Xxxx, General Counsel of the Borrower,
in substantially the form of Exhibit 3.01(a)(viii)-2 and as to
such other
31
matters as the Majority Lenders, through the Agent, may
reasonably request; and
(C) King & Spalding LLP, special New York counsel to
the Agent, in substantially the form of Exhibit
3.01(a)(viii)-3 and as to such other matters as the Majority
Lenders, through the Agent, may reasonably request; and
(ix) such other approvals, opinions and documents as any Lender,
through the Agent, may reasonably request.
(b) The following statements shall be true and correct, and the Agent
shall have received a certificate of a duly authorized officer of the Borrower,
dated the date of the Closing and in sufficient copies for each Lender, stating
that:
(i) the representations and warranties set forth in Section 4.01
of this Agreement are true and correct on and as of the date of the
Closing as though made on and as of such date, and
(ii) no event has occurred and is continuing that constitutes an
Unmatured Default or an Event of Default.
(c) The Borrower shall have paid (i) all fees payable hereunder or payable
pursuant to the Administrative Agency and Arranger Fee Letter to the extent then
due and payable, and (ii) all costs and expenses of the Agent (including counsel
fees and disbursements) incurred through (and for which statements have been
provided prior to) the Closing.
(d) The Agent shall have received evidence that all amounts outstanding
under the Existing Facility, whether for principal, interest, fees or otherwise,
shall have been paid in full, and all commitments to lend thereunder shall have
been terminated.
SECTION 3.02. CONDITIONS PRECEDENT TO EACH EXTENSION OF CREDIT. The
obligation of (i) each Lender to make an Advance on the occasion of each
Borrowing (including the initial Borrowing) that would cause the aggregate
principal amount of Advances outstanding hereunder to increase and (ii) the LC
Issuing Bank to issue any Letter of Credit shall be subject to the conditions
precedent that, on the date of such Extension of Credit:
(a) the following statements shall be true and correct (and each of the
giving of the applicable Notice of Borrowing or Request for Issuance, as the
case may be, and the acceptance by the Borrower of the proceeds of such
Borrowing or the issuance of such Letter of Credit, as the case may be, shall
constitute a representation and warranty by the Borrower that, on the date of
such Extension of Credit, such statements are true and correct):
(i) the representations and warranties contained in Section 4.01
(other than, in the case of any Borrowing the proceeds of which will be
used exclusively to repurchase commercial paper issued by or on behalf of
the Borrower, the representation and warranty set forth in Section 4.01(e)
and, in the event of any such Borrowing, the Agent may require the
Borrower to deliver to it information sufficient for the Agent to disburse
the proceeds of
32
such Borrowing directly to the holders of such commercial paper or to a
paying agent therefor) are true and correct on and as of the date of such
Extension of Credit, before and after giving effect to the application of
the proceeds of any Borrowing made in connection therewith or the issuance
or amendment of any Letter of Credit in connection therewith, as the case
may be, as though made on and as of such date; and
(ii) no event has occurred and is continuing, or would result from
such Extension of Credit or from the application of proceeds of any
Borrowing made in connection therewith or the issuance or amendment of any
Letter of Credit in connection therewith, as the case may be, that
constitutes an Event of Default or an Unmatured Default;
(b) the Agent shall have received all documentation and information
required by regulatory authorities under applicable "know your customer" and
anti-money laundering rules and regulations, including without limitation the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)); and
(c) the Agent shall have received such other approvals, opinions, or
documents as the Agent, or the Majority Lenders through the Agent, may
reasonably request, and such approvals, opinions, and documents shall be
satisfactory in form and substance to the Agent.
SECTION 3.03. CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT BETWEEN
DECEMBER 31, 2004 AND DECEMBER 31, 2007.
At any time between December 31, 2004 and December 31, 2007, the
obligation of (a) each Lender to make an Advance on the occasion of each
Borrowing (including the initial Borrowing) that would cause the aggregate
principal amount of Advances outstanding hereunder to increase, and (b) the LC
Issuing Bank to issue any Letter of Credit (including the initial Letter of
Credit) or increase the stated amount of any Letter of Credit or to extend the
termination date thereof shall be subject to the further conditions precedent
that on or prior to the date of such Extension of Credit the Agent shall have
received the following, each dated on or prior to the date of such Extension of
Credit, in form and substance satisfactory to the LC Issuing Bank and Agent and
with one copy for the LC Issuing Bank and each Lender:
(i) A certificate of the Secretary or an Assistant Secretary of
the Borrower certifying (A) that attached thereto is a true and correct
copy of the First Supplemental Order and that such order has been issued
and is in full force and effect, or (B) that due to a change in applicable
law after the Closing, no such order is required in order for the Borrower
to be permitted to obtain additional Extensions of Credit; and
(ii) An opinion of counsel for the Borrower to the effect (A) that
no Governmental Approval is or will be required in connection with the
performance by the Borrower, or the consummation by the Borrower, of the
transactions contemplated by this Agreement between December 31, 2004 and
December 31, 2007, other than the First Supplemental Order, which has been
duly issued and is final and in full force and effect, or (B) to the
effect that due to a change in applicable law after the Closing, no such
order
33
is required in order for the Borrower to be permitted to obtain additional
Extensions of Credit.
SECTION 3.04. CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT AFTER DECEMBER
31, 2007.
At any time after December 31, 2007, the obligation of (a) each Lender to
make an Advance on the occasion of each Borrowing (including the initial
Borrowing) that would cause the aggregate principal amount of Advances
outstanding hereunder to increase, and (b) the LC Issuing Bank to issue any
Letter of Credit (including the initial Letter of Credit) or increase the stated
amount of any Letter of Credit or to extend the termination date thereof shall
be subject to the further conditions precedent that on or prior to the date of
such Extension of Credit the Agent shall have received the following, each dated
on or prior to the date of such Extension of Credit, in form and substance
satisfactory to the LC Issuing Bank and Agent and with one copy for the LC
Issuing Bank and each Lender:
(i) A certificate of the Secretary or an Assistant Secretary of
the Borrower certifying (A) that attached thereto is a true and correct
copy of the Second Supplemental Order and that such order has been issued
and is in full force and effect, or (B) that due to a change in applicable
law after the Closing, no such order is required in order for the Borrower
to obtain additional Extensions of Credit; and
(ii) An opinion of counsel for the Borrower, to the effect (A) that
no Governmental Approval is or will be required in connection with the
performance by the Borrower, or the consummation by the Borrower of the
transactions contemplated by this Agreement after December 31, 2007, other
than the Second Supplemental Order, which has been duly issued and is
final and in full force and effect, or (B) to the effect that due to a
change in applicable law after the Closing, no such order is required in
order for the Borrower to be permitted to obtain additional Extensions of
Credit.
SECTION 3.05. RELIANCE ON CERTIFICATES. The Lenders, the LC Issuing Bank
and the Agent shall be entitled to rely conclusively upon the certificates
delivered from time to time by officers of the Borrower as to the names,
incumbency, authority and signatures of the respective Persons named therein
until such time as the Agent may receive a replacement certificate, in form
acceptable to the Agent, from an officer of such Person identified to the Agent
as having authority to deliver such certificate, setting forth the names and
true signatures of the officers and other representatives of such Person
thereafter authorized to act on behalf of such Person.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower
represents and warrants as follows:
(a) The Borrower and each of its Subsidiaries is a corporation
duly organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation and is duly qualified to do business
in, and is in good standing in, all other
34
jurisdictions where the nature of its business or the nature of property
owned or used by it makes such qualification necessary (except where the
failure to so qualify would not constitute a Material Adverse Change).
(b) The execution, delivery and performance by the Borrower of
this Agreement and the other Loan Documents to which it is or will be a
party, and the receipt by the Borrower of the proceeds of Extensions of
Credit on the date of any Extension of Credit, are within the Borrower's
corporate powers, have been duly authorized by all necessary corporate
action, and do not and will not contravene (i) the Borrower's charter or
by-laws, (ii) any law, or (iii) any legal or contractual restriction
binding on or affecting the Borrower; and such execution, delivery and
performance do not and will not result in or require the creation of any
Lien (other than pursuant to the Loan Documents) upon or with respect to
any of its properties.
(c) No Governmental Approval is required in connection with the
execution, delivery or performance by the Borrower of any Loan Document,
other than (i)(A) Release No. 27542, 70-10052, issued by the Securities
and Exchange Commission on June 21, 2002, (B) Release No. 35-27615,
70-10052, issued by the Securities and Exchange Commission on December 13,
2002 and (C) Release No. 35-27448, 70-9891, issued by the Securities and
Exchange Commission on October 3, 2001, as supplemented on December 17,
2002, which releases are final and in full force and effect and not
subject to appeal, rehearing, review or reconsideration and (ii) with
respect to the Borrower's obtaining any Extension of Credit after December
31, 2004, the Supplemental Order.
(d) This Agreement is, and each other Loan Document to which the
Borrower will be a party when executed and delivered hereunder will be,
legal, valid and binding obligations of the Borrower enforceable against
the Borrower in accordance with their respective terms, subject to the
qualifications, however, that the enforcement of the rights and remedies
herein and therein is subject to bankruptcy and other similar laws of
general application affecting rights and remedies of creditors and that
the remedy of specific performance or of injunctive relief is subject to
the discretion of the court before which any proceedings therefor may be
brought.
(e) Since December 31, 2003, there has been no Material Adverse
Change.
(f) The audited consolidated balance sheets of the Borrower and
its Subsidiaries as at December 31, 2003, and the related audited
consolidated, and, with respect to the Borrower, consolidating, statements
of income of the Borrower and its Subsidiaries for the fiscal year then
ended, and the unaudited consolidated balance sheets of the Borrower and
its Subsidiaries as at March 31, 2004 and the related unaudited
consolidated statements of income for the three-month period then ended,
copies of each of which have been furnished to each Bank, fairly present
(subject, in the case of such balance sheets and statements of income for
the three months ended March 31, 2004, to year-end adjustments) the
consolidated financial condition of the Borrower and its Subsidiaries as
at such dates and the consolidated results of operations of the Borrower
35
and its Subsidiaries for the periods ended on such dates, all in
accordance, in all material respects, with GAAP.
(g) Except as disclosed in the Borrower's Report on Form 10-K for
the year ended December 31, 2003 and Report on Form 10-Q for the period
ended March 31, 2004, there is no pending or threatened action or
proceeding affecting the Borrower or any of its Subsidiaries or properties
before any court, governmental agency or arbitrator, that might reasonably
be expected to constitute a Material Adverse Change, and since December
31, 2003 there have been no material adverse developments in any action or
proceeding so disclosed.
(h) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan of the Borrower or any of its ERISA Affiliates
which would result in a material liability to the Borrower. No "prohibited
transaction" has occurred with respect to any Plan of the Borrower that is
reasonably expected to result in a material liability to the Borrower.
Neither the Borrower nor any of its ERISA Affiliates has incurred nor
reasonably expects to incur any material withdrawal liability under ERISA
to any Multiemployer Plan.
(i) The Borrower has filed all tax returns (Federal, state and
local) required to be filed and paid all taxes shown thereon to be due,
including interest and penalties, or, to the extent the Borrower is
contesting in good faith an assertion of liability based on such returns,
has provided adequate reserves for payment thereof in accordance with
GAAP.
(j) Neither the Borrower nor any Subsidiary of the Borrower is
engaged principally, or as one of its important activities, in the
business of purchasing or carrying Margin Stock, or extending credit for
the purpose of purchasing or carrying Margin Stock. After the making of
each Extension of Credit, Margin Stock will constitute less than 25
percent of the assets (as determined by any reasonable method) of the
Borrower and its Subsidiaries on a consolidated basis.
(k) The Borrower is not an "investment company" or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any amount in respect of
this Agreement shall remain unpaid, any Lender shall have any Commitment or any
Letter of Credit shall remain outstanding, the Borrower will, unless the
Majority Lenders shall otherwise consent in writing:
(a) Payment of Taxes, Etc. Pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become
delinquent, all taxes, assessments and governmental charges, royalties or
levies imposed upon it or upon its property except, in the case of taxes,
to the extent the Borrower or such Subsidiary is
36
contesting the same in good faith and by appropriate proceedings and has
set aside adequate reserves for the payment thereof in accordance with
GAAP.
(b) Maintenance of Insurance. Maintain, or cause to be maintained,
insurance or other risk management program covering the Borrower and each
of its Subsidiaries and their respective properties in effect at all times
in such amounts and covering such risks and using such means as are usual
and customary for companies of a similar size (based on the aggregate book
value of the Borrower's assets, as determined on a consolidated basis in
accordance with GAAP), engaged in similar businesses and owning similar
properties, either with reputable insurance companies or, in whole or in
part, by establishing reserves of one or more insurance funds or other
risk management mechanisms, either alone or with other corporations or
associations.
(c) Preservation of Existence, Etc. Preserve and maintain, and
cause each of its Subsidiaries to preserve and maintain, its corporate
existence, material rights (statutory and otherwise) and franchises;
provided, however, that neither the Borrower nor any of its Subsidiaries
shall be required to preserve and maintain any such right or franchise,
and no such Subsidiary shall be required to preserve and maintain its
corporate existence, unless the failure to do so would constitute a
Material Adverse Change.
(d) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, with the requirements of all applicable laws,
rules, regulations and orders of any governmental authority, including
without limitation any such laws, rules, regulations and orders relating
to zoning, environmental protection, use and disposal of Hazardous
Substances, land use, ERISA, construction and building restrictions, and
employee safety and health matters relating to business operations, the
non-compliance with which would constitute a Material Adverse Change.
(e) Inspection Rights. At the reasonable expense of the Borrower,
at any time and from time to time, upon reasonable notice, permit or
arrange for the Agent, the LC Issuing Bank, the Lenders and their
respective agents and representatives to examine and make copies of and
abstracts from the records and books of account of, and the properties of,
the Borrower and each of its Subsidiaries, and to discuss the affairs,
finances and accounts of the Borrower and its Subsidiaries with the
Borrower and its Subsidiaries and their respective officers, directors and
accountants.
(f) Keeping of Books. Keep, and cause its Subsidiaries to keep,
proper records and books of account, in which full and correct entries
shall be made of all financial transactions of the Borrower and its
Subsidiaries and the assets and business of the Borrower and its
Subsidiaries, in accordance with GAAP.
(g) Maintenance of Properties, Etc. Maintain, and cause each of
its Subsidiaries to maintain, good and marketable title to, and preserve,
maintain, develop, and operate in substantial conformity with all laws and
material contractual obligations, all of its properties which are used or
useful in the conduct of its business in good working order and condition,
ordinary wear and tear excepted, except where the failure to do so would
not constitute a Material Adverse Change.
37
(h) Reporting Requirements. Furnish to each Lender:
(i) as soon as possible and in any event within five
Business Days after the occurrence of each Unmatured Default or
Event of Default continuing on the date of such statement, a
statement of a Senior Financial Officer setting forth details of
such Unmatured Default or Event of Default and the action that the
Borrower proposes to take with respect thereto;
(ii) as soon as available and in any event within 60 days
after the end of each of the first three quarters of each fiscal
year of the Borrower, a consolidated balance sheet of the Borrower
and its Subsidiaries as at the end of such quarter and consolidated,
and, with respect to the Borrower, consolidating, statements of
income and cash flows of the Borrower and its Subsidiaries for the
period commencing at the end of the previous fiscal year and ending
with the end of such quarter, all in reasonable detail and duly
certified (subject to year-end audit adjustments) by a Senior
Financial Officer as having been prepared in accordance (in all
material respects) with GAAP, together with a certificate of said
officer stating that no Unmatured Default or Event of Default has
occurred and is continuing or, if an Unmatured Default or Event of
Default has occurred and is continuing, a statement as to the nature
thereof and the action that the Borrower proposes to take with
respect thereto;
(iii) as soon as available and in any event within 120 days
after the end of each fiscal year of the Borrower, a copy of the
audited consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal year and consolidated,
and, with respect to the Borrower, consolidating, statements of
income, retained earnings and cash flows of the Borrower and its
Subsidiaries for such fiscal year, together with a certificate of a
Senior Financial Officer stating that no Unmatured Default or Event
of Default has occurred and is continuing or, if an Unmatured
Default or Event of Default has occurred and is continuing, a
statement as to the nature thereof and the action that the Borrower
proposes to take with respect thereto;
(iv) concurrently with the delivery of the financial
statements referred to in clauses (ii) and (iii) above, a
certificate signed by the principal executive officer and the
principal financial officer of the Borrower (i) stating whether a
Default or Event of Default has occurred and is continuing on the
date of such certificate, and if a Default or an Event of Default
has then occurred and is continuing, specifying the details thereof
and the action that the Borrower has taken or proposes to take with
respect thereto, (ii) setting forth in reasonable detail
calculations demonstrating compliance with Sections 5.02(h), (i) and
(j) and (iii) stating whether any change in GAAP or the application
thereof has occurred since the date of the audited financial
statements referred to in Section 4.01 and, if any change has
occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
38
(v) as soon as possible and in any event (A) within 30 days
after any ERISA Event described in clause (i) of the definition of
ERISA Event with respect to any Plan of the Borrower or any ERISA
Affiliate of the Borrower has occurred and (B) within 10 days after
any other ERISA Event with respect to any Plan of the Borrower or
any ERISA Affiliate of the Borrower has occurred, a statement of a
Senior Financial Officer describing such ERISA Event and the action,
if any, which the Borrower or such ERISA Affiliate proposes to take
with respect thereto;
(vi) promptly after receipt thereof by the Borrower or any of
its ERISA Affiliates from the PBGC copies of each notice received by
the Borrower or such ERISA Affiliate of the PBGC's intention to
terminate any Plan of the Borrower or such ERISA Affiliate or to
have a trustee appointed to administer any such Plan;
(vii) promptly after receipt thereof by the Borrower or any
ERISA Affiliate of the Borrower from a Multiemployer Plan sponsor, a
copy of each notice received by the Borrower or such ERISA Affiliate
concerning the imposition or amount of withdrawal liability in an
aggregate principal amount of at least $5,000,000 pursuant to
Section 4202 of ERISA in respect of which the Borrower or such ERISA
Affiliate is reasonably expected to be liable;
(viii) promptly after requested, such documents or
governmental reports or filings relating to any Plan as the Agent or
the LC Issuing Bank or any Lender through the Agent may from time to
time reasonably request;
(ix) promptly after the Borrower becomes aware of the
occurrence thereof, notice of all actions, suits, proceedings or
other events (A) of the type described in Section 4.01(g) or (B) for
which the Agent, the LC Issuing Bank and the Lenders will be
entitled to indemnity under Section 8.04(c);
(x) promptly after the sending or filing thereof, copies of
all such proxy statements, financial statements, and reports which
the Borrower sends to its public security holders (if any), and
copies of all regular, periodic and special reports, and all
registration statements and periodic or special reports, if any,
which the Borrower or any Subsidiary of the Borrower files with the
Securities and Exchange Commission or any governmental authority
which may be substituted therefor, or with any national securities
exchange; and
(xi) promptly after requested, such other information
respecting the business, properties, results of operations,
prospects, revenues, condition or operations, financial or
otherwise, of the Borrower or any of its Subsidiaries as the Agent
or the LC Issuing Bank or any Lender through the Agent may from time
to time reasonably request.
(i) Use of Proceeds. Use the proceeds of the Advances hereunder
solely for the Borrower's general corporate purposes (including supporting
commercial paper issued by the Borrower), and not to finance any Hostile
Acquisition.
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(j) Further Assurances. At the expense of the Borrower, promptly
execute and deliver, or cause to be promptly executed and delivered, all
further instruments and documents, and take and cause to be taken all
further actions, that may be necessary or that the Majority Lenders
through the Agent may reasonably request to enable the Lenders, the LC
Issuing Bank and the Agent to enforce the terms and provisions of this
Agreement and to exercise their rights and remedies hereunder or under any
other Loan Document. In addition, the Borrower will use all reasonable
efforts to duly obtain Governmental Approvals required in connection with
the Loan Documents from time to time on or prior to such date as the same
may become legally required, and thereafter to maintain all such
Governmental Approvals in full force and effect.
SECTION 5.02. NEGATIVE COVENANTS. So long as any amount in respect of this
Agreement shall remain unpaid, any Lender shall have any Commitment or any
Letter of Credit shall remain outstanding, the Borrower will not, without the
written consent of the Majority Lenders:
(a) Liens, Etc. Create, incur, assume, or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume, or suffer to
exist, any lien, security interest, or other charge or encumbrance
(including the lien or retained security title of a conditional vendor) of
any kind, or any other type of arrangement intended or having the effect
of conferring upon a creditor a preferential interest upon or with respect
to any of its properties of any character (including, without limitation,
accounts) (any of the foregoing being referred to herein as a "LIEN"),
excluding, however, from the operation of the foregoing restrictions the
Liens created under the Loan Documents and the following:
(i) Liens for taxes, assessments or governmental charges or
levies to the extent not past due;
(ii) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's liens and other similar Liens
arising in the ordinary course of business securing obligations
which are not overdue or which are being contested in good faith,
provided that any such contested Lien securing an amount claimed in
excess of $5,000,000 shall be fully bonded within 90 days after the
imposition of such Lien;
(iii) pledges or deposits to secure obligations under
workmen's compensation laws or similar legislation, to secure public
or statutory obligations of the Borrower or such Subsidiary, or to
secure the utility obligations of any such Subsidiary incurred in
the ordinary course of business;
(iv) (A) purchase money Liens upon or in property now owned
or hereafter acquired by the Borrower or any of its Subsidiaries in
the ordinary course of business (consistent with present practices,
it being understood that for purposes of this clause, the purchase,
construction or maintenance of generating facilities by the
Utilities shall be deemed to be in the ordinary course of business
and consistent with present practices) to secure (1) the purchase
price of such property or (2) Debt incurred solely for the purpose
of financing the acquisition,
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construction or improvement of any such property to be subject to
such Liens, or (B) Liens existing on any such property at the time
of acquisition, or extensions, renewals or replacements of any of
the foregoing for the same or a lesser amount, provided that no such
Lien shall extend to or cover any property other than the property
being acquired, constructed or improved and replacements,
modifications and proceeds of such property, and no such extension,
renewal or replacement shall extend to or cover any property not
theretofore subject to the Lien being extended, renewed or replaced;
(v) Liens on the capital stock of any of the Borrower's
single-purpose Subsidiaries or any such Subsidiary's assets to
secure the repayment of project financing or Nonrecourse Debt for
such Subsidiary;
(vi) attachment, judgment or other similar Liens arising in
connection with court proceedings, provided that the execution or
other enforcement of such Liens is effectively stayed and the claims
secured thereby are being actively contested in good faith by
appropriate proceedings or the payment of which is covered in full
(subject to customary deductible amounts) by insurance maintained
with responsible insurance companies;
(vii) Liens securing obligations under agreements entered into
pursuant to the Iowa Industrial New Jobs Training Act or any similar
or successor legislation, provided that such obligations do not
exceed $5,000,000 in the aggregate at any one time outstanding;
(viii) Liens created pursuant to the Mortgage Bond Indentures;
(ix) Liens on the ownership interests in, and the assets of,
any Foreign Subsidiary to secure not more than $300,000,000
aggregate principal amount of Debt of any Foreign Subsidiary;
provided that in the event any such Debt is not denominated in
Dollars, the calculation of the Dollar equivalent amount of such
Debt shall be made as of the date of the incurrence of such Lien
securing such Debt;
(x) Liens in favor of Wachovia, as agent under the Utility
Facilities to secure the obligations of the respective Utilities
under such agreements;
(xi) Liens incurred in connection with the sales of assets
permitted in subsection (f)(ix) of this Section;
(xii) Liens incurred by the Borrower or any of its
Subsidiaries on assets of the Borrower and its Subsidiaries posted
as collateral to secure Nonrecourse Debt or payments on contracts
other than for borrowed money, in an aggregate principal amount not
to exceed (x) in the case of the Borrower and all its Subsidiaries
other than the Utilities and their respective Subsidiaries,
$100,000,000, and (y) in the case of each Utility and its
Subsidiaries, $100,000,000;
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(xiii) Liens on nuclear fuel granted in connection with any
financing arrangement for the purpose of purchasing or leasing such
nuclear fuel;
(xiv) Liens constituting easements, restrictions and other
similar encumbrances arising in the ordinary course of business,
which in the aggregate do not materially adversely affect the
Borrower's use of its properties; and
(xv) other Liens set forth in Schedule II hereto, and any
extensions or renewals of any such Liens upon or in the same
property theretofore subject thereto.
(b) Debt. Create, incur, assume, or suffer to exist any Debt other
than:
(i) Debt hereunder and under the other Loan Documents;
(ii) unsecured Debt owing to the Utilities; provided,
however, that the aggregate amount of all such Debt owing to any
Utility at any time shall not exceed the amount that such Utility
could, in conformance with applicable law, dividend to the Borrower
at such time; further provided, however, that the foregoing shall
not restrict the Borrower's ability to incur unsecured Debt owing to
any Utility in connection with the cash management program of the
Borrower and the Utilities known as the "Utility Money Pool"; and
(iii) other Debt that is pari passu with, or subordinate to,
the Debt hereunder or secured by a Lien permitted under Section
5.02(a), provided that the Borrower is in compliance with Section
5.02(h).
(c) Compliance with ERISA. (i) Permit to exist any "accumulated
funding deficiency" (as defined in Section 412(a) of the Internal Revenue
Code of 1986, as amended from time to time) (unless such deficiency exists
with respect to a Multiple Employer Plan or Multiemployer Plan and the
Borrower has no control over the reduction or elimination of such
deficiency), (ii) terminate, or permit any ERISA Affiliate of the Borrower
to terminate, any Plan of the Borrower or such ERISA Affiliate so as to
result in any material (in the opinion of the Majority Lenders) liability
of the Borrower to the PBGC, or (iii) permit to exist any occurrence of
any Reportable Event (as defined in Title IV of ERISA), or any other event
or condition, which presents a material (in the opinion of the Majority
Lenders) risk of such a termination by the PBGC of any Plan of the
Borrower or such ERISA Affiliate and such a material liability to the
Borrower.
(d) Transactions with Affiliates. Enter into, or permit any of its
Subsidiaries to enter into, any transaction with an Affiliate of the
Borrower, unless such transaction (i) is on terms no less favorable to the
Borrower or such Subsidiary, as the case may be, than if the transaction
had been negotiated in good faith on an arm's length basis with a Person
that was not an Affiliate of the Borrower, (ii) has been approved by the
Securities and Exchange Commission pursuant to, or is entered into
otherwise in accordance with, PUHCA or other applicable utility or utility
holding company regulations or (iii) is among wholly-owned Subsidiaries of
the Borrower.
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(e) Mergers, Etc.
(i) merge with or into or consolidate with or into any other
Person, except the Borrower may merge with or into or consolidate
with or into any of its Subsidiaries, provided that immediately
after giving effect thereto, (A) no event shall occur and be
continuing that constitutes an Unmatured Default or an Event of
Default, (B) the Borrower is the surviving corporation and (C) the
Borrower shall not be liable with respect to any Debt or allow its
property to be subject to any Lien which it could not become liable
with respect to or allow its property to become subject to under
this Agreement or any other Loan Document on the date of such
transaction; or
(ii) permit any of its Subsidiaries to merge with or into or
consolidate with or into any other Person, except that any such
Subsidiary may merge with or into any other Person, provided that
immediately after giving effect thereto, (A) the surviving
corporation is a Subsidiary of the Borrower, (B) no event shall
occur and be continuing that constitutes an Unmatured Default or an
Event of Default and (C) the Borrower or any of its Subsidiaries
shall not be liable with respect to any Debt or allow its property
to be subject to any Lien which it could not become liable with
respect to or allow its property to become subject to under this
Agreement or any other Loan Document on the date of such
transaction.
(f) Sales, Etc., of Assets. Sell, lease, transfer, assign or
otherwise dispose of any of its assets, or permit any of its Subsidiaries
to sell, lease, transfer, assign or otherwise dispose of any of its
assets, except (i) sales, leases, transfers and assignments from one
Subsidiary of the Borrower to another such Subsidiary, (ii) in any
transaction in which the net proceeds from such sale, lease, transfer,
assignment or disposition are solely Cash and Cash Equivalents and such
proceeds are (A) applied solely as a permanent reduction of the
Commitments and prepayment of Advances pursuant to Sections 2.05, 2.11 and
2.12, or (B) applied solely to pay or prepay Debt (together with a
permanent reduction of any commitments relating to such Debt) incurred by
the Borrower or any such Subsidiary in connection with the project
comprising such assets, (iii) in connection with a sale and leaseback
transaction entered into by any Subsidiary of the Borrower, (iv) sales,
leases, transfers and assignments of other assets representing not in
excess of 20% of the consolidated assets (valued at book value) of the
Borrower and its Subsidiaries in the aggregate from the date hereof until
the Termination Date in any single or series of transactions, whether or
not related, (v) sales, leases, transfers and assignments of worn out or
obsolete equipment no longer used and useful in the business of the
Borrower and its Subsidiaries, (vi) dispositions of the transmission
assets of IPL and its Subsidiaries to TRANSlink Transmission Company or to
any other Regional Transmission Organization authorized by the Federal
Energy Regulatory Commission, (vii) dispositions of the Kewaunee and Xxxxx
Xxxxxx nuclear facilities, (viii) sales or transfers of Equity Interests
of Xxxxxxx Petroleum Corporation, (ix) sales of contracts and accounts
receivable by the Utilities, Alliant Energy Integrated Services, Inc., and
its Subsidiaries and (x) dispositions of Equity Interests in or assets of
any direct or indirect subsidiary of Alliant Energy International, Inc.,
including but not limited to Equity Interests in Brazilian entities held
on the date hereof by Alliant Energy Holdings do
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Brasil, Ltda. and Grandelight Holding Limited, BVI ("GHL"), Equity
Interests in New Zealand entities held on the date hereof by LNTI
Holdings, B. V. and GHL, Equity Interests in Chinese entities held on the
date hereof by GHL and Peak Pacific Investment Company, Ltd., and Equity
Interests in Mexican entities held on the date hereof and held by Alliant
Energy de Mexico LLC; provided in each case that no Unmatured Default or
Event of Default shall have occurred and be continuing after giving effect
thereto; provided further that the Borrower or any of its Subsidiaries
may, pursuant to Section 5.02(a)(ix), pledge its ownership interests in,
and the assets of, any Foreign Subsidiary to secure not more than
$300,000,000 aggregate principal amount of Debt incurred by any Foreign
Subsidiary; provided further that in the event any such Debt is not
denominated in Dollars, the calculation of the Dollar equivalent amount of
such Debt shall be made as of the date of the pledge of assets or
ownership interests, as the case may be, securing such Debt.
(g) Maintenance of Ownership of Significant Subsidiaries. Sell,
assign, transfer, pledge or otherwise dispose of any Equity Interests of
any of its Significant Subsidiaries or any warrants, rights or options to
acquire such Equity Interests, or permit any of its Significant
Subsidiaries to issue, sell or otherwise dispose of any shares of its
Equity Interests or any warrants, rights or options to acquire such
capital stock, except (and only to the extent) as may be necessary to give
effect to a transaction permitted by subsection (e) above. Notwithstanding
the foregoing, the Borrower or any of its Subsidiaries may, pursuant to
Section 5.02(a)(ix), pledge its ownership interests in, and the assets of,
any Foreign Subsidiary to secure not more than $300,000,000 aggregate
principal amount of Debt incurred by any Foreign Subsidiary; provided that
in the event any such Debt is not denominated in Dollars, the calculation
of the Dollar equivalent amount of such Debt shall be made as of the date
of the pledge of assets or ownership interests, as the case may be,
securing such Debt.
(h) Capitalization Ratio. Permit the ratio of Consolidated Debt of
the Borrower to Consolidated Capital of the Borrower to exceed .65 to
1.00.
(i) Interest Coverage Ratio. Permit, as of the last day of each
fiscal quarter of the Borrower, the Interest Coverage Ratio to be less
than 2.50 to 1.00.
(j) Restrictive Agreements. Directly or indirectly, enter into or
permit to exist, or permit the Utilities to enter into or permit to exist,
any agreement or other arrangement that prohibits, restricts or imposes
any condition upon the ability of any Utility to declare or pay dividends;
provided that the foregoing limitations do not apply to (i) financial
covenants that require the maintenance of a minimum net worth or
compliance with financial tests as conditions to the ability to pay
dividends or make other distributions with respect to capital stock or
otherwise; (ii) restrictions that arise only if dividends on preferred
stock have not been paid; and (iii) limitations or restrictions imposed by
law or in regulatory proceedings.
(k) Synthetic Lease Restrictions. Enter into or permit any
Subsidiary to enter into a synthetic lease transaction.
44
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT. If any of the following events (each an
"EVENT OF DEFAULT") shall occur and be continuing after the applicable grace
period and notice requirement (if any):
(a) The Borrower shall fail to pay any principal of any Borrowing or any
reimbursement obligation in respect of a Letter of Credit when the same becomes
due and payable; or
(b) The Borrower shall fail to pay any interest on any Borrowing or any
other amount due under this Agreement for two days after the same becomes due;
or
(c) Any representation or warranty made by or on behalf of the Borrower in
any Loan Document or in any certificate or other writing delivered pursuant
thereto shall prove to have been incorrect in any material respect when made or
deemed made; or
(d) The Borrower shall fail to perform or observe any term or covenant on
its part to be performed or observed contained in Section 5.01(c), 5.01(h)(i) or
5.02 (other than subsections (c) and (d) thereof); or
(e) The Borrower shall fail to perform or observe any other term or
covenant on its part to be performed or observed contained in this Agreement or
in any other Loan Document, and any such failure shall remain unremedied, after
the earlier of (i) actual knowledge by the Borrower thereof, and (ii) written
notice thereof shall have been given to the Borrower by the Agent, for a period
of 30 days; or
(f) The Borrower or any of its Subsidiaries shall fail to make any payment
in respect of any of its Debt other than Nonrecourse Debt, including any
interest or premium thereon (but excluding Debt hereunder) aggregating
$50,000,000 or more when due under documents related to such Debt (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise) and
such failure shall continue after the applicable grace period, if any, specified
in any agreement or instrument relating to such Debt; or any other default under
any agreement or instrument relating to any such Debt, or any other event, shall
occur and shall continue after the applicable grace period, if any, specified in
such agreement or instrument, if the effect of such default or event is to
accelerate, or to permit the acceleration of, the maturity of such Debt; or any
such Debt shall be declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment) prior to the stated
maturity thereof as a result of a default or other similar adverse event; or
(g) The Borrower or any of the Utilities shall generally not pay its debts
as such debts become due, or shall admit in writing its inability to pay its
debts generally, or shall make an assignment for the benefit of creditors; or
any proceeding shall be instituted by or against the Borrower or any of the
Utilities seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of its debts under any law relating to bankruptcy,
insolvency, or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, or other similar
official for it or for any substantial part of its property and, in the case of
45
a proceeding instituted against the Borrower or any of the Utilities, either
such proceeding shall remain undismissed or unstayed for a period of 60 days or
any of the actions sought in such proceeding (including without limitation the
entry of an order for relief against the Borrower or such Utility or the
appointment of a receiver, trustee, custodian or other similar official for the
Borrower or such Utility or any of its property) shall occur; or the Borrower or
any of the Utilities shall take any corporate or other action to authorize any
of the actions set forth above in this subsection (g); or
(h) Any judgment or order for the payment of money equal to or in excess
of $50,000,000 shall be rendered against the Borrower or any of its Direct
Subsidiaries (including, without limitation, the Utilities) or their respective
properties and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(i) Any material provision of any Loan Document to which the Borrower is a
party shall for any reason cease to be valid and binding on the Borrower or the
Borrower shall so assert in writing; or
(j) Any Governmental Approval required in connection with the execution,
delivery and performance of the Loan Documents shall be rescinded, revoked,
otherwise terminated, or amended or modified in any manner that is materially
adverse to the interests of the Lenders, the LC Issuing Bank and the Agent; or
(k) Any ERISA Event shall have occurred with respect to a Plan that could
reasonably be expected to result in a material liability to the Borrower, and,
30 days after notice thereof shall have been given to the Borrower by the Agent,
the LC Issuing Bank or any Lender, such ERISA Event shall still exist; or
(l) (i) The Borrower shall cease to own 100% of the common equity
interests of either of the Utilities; (ii) any Person or "group" (within the
meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as
amended) shall either (A) acquire beneficial ownership of more than 50% of any
outstanding class of common stock of the Borrower having ordinary voting power
in the election of directors of the Borrower or (B) obtain the power (whether or
not exercised) to elect a majority of the Borrower's directors or (iii) the
Board of Directors of the Borrower shall not consist of a majority of Continuing
Directors:
then, and in any such event, the Agent (i) shall at the request, or may
with the consent, of the holders of greater than 50% of the principal
amount of the Advances then outstanding or, if no Advances are then
outstanding, Lenders having greater than 50% of the Commitments, by notice
to the Borrower, declare the obligation of each Lender to make Advances
and the obligation of the LC Issuing Bank to issue Letters of Credit to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall
at the request, or may with the consent, of the holders of greater than
50% in principal amount of the Advances then outstanding or, if no
Advances are then outstanding, Lenders having greater than 50% of the
Commitments, by notice to the Borrower, declare the Advances (if any), all
interest thereon and all other amounts payable under this Agreement to be
46
forthwith due and payable, whereupon the Advances, all such interest and
all such amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; provided, however, that in
the event of an actual or deemed entry of an order for relief with respect
to the Borrower under the Federal Bankruptcy Code, (A) the obligation of
the LC Issuing Bank to issue Letters of Credit, the Commitments and the
obligation of each Lender to make Advances shall automatically be
terminated and (B) the Advances, all such interest and all such amounts
shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
SECTION 6.02. CASH COLLATERAL ACCOUNT. Notwithstanding anything to the
contrary contained herein, no notice given or declaration made by the Agent
pursuant to this Article VI shall affect (i) the obligation of the LC Issuing
Bank to make any payment under any Letter of Credit in accordance with the terms
of such Letter of Credit or (ii) the obligations of each Lender in respect of
each such Letter of Credit; provided, however, that if an Event of Default has
occurred and is continuing, the Agent shall at the request, or may with the
consent, of the Majority Lenders, upon notice to the Borrower, require the
Borrower to deposit with the Agent an amount in the cash collateral account (the
"CASH COLLATERAL ACCOUNT") described below equal to the LC Outstandings on such
date. Such Cash Collateral Account shall at all times be free and clear of all
rights or claims of third parties. The Cash Collateral Account shall be
maintained with the Agent in the name of, and under the sole dominion and
control of, the Agent, and amounts deposited in the Cash Collateral Account
shall bear interest at a rate equal to the rate generally offered by Wachovia
for deposits equal to the amount deposited by the Borrower in the Cash
Collateral Account, for a term to be determined by the Agent, in its sole
discretion. The Borrower hereby grants to the Agent for the benefit of the LC
Issuing Bank and the Lenders a Lien in and hereby assigns to the Agent for the
benefit of LC Issuing Bank and the Lenders all of its right, title and interest
in, the Cash Collateral Account and all funds from time to time on deposit
therein to secure its reimbursement obligations in respect of Letters of Credit.
If any drawings then outstanding or thereafter made are not reimbursed in full
immediately upon demand or, in the case of subsequent drawings, upon being made,
then, in any such event, the Agent may apply the amounts then on deposit in the
Cash Collateral Account, toward the payment in full of any of the Obligations as
and when such obligations shall become due and payable. Upon payment in full,
after the termination of the Letters of Credit, of all such obligations, the
Agent will repay and reassign to the Borrower any cash then in the Cash
Collateral Account and the Lien of the Agent on the Cash Collateral Account and
the funds therein shall automatically terminate.
ARTICLE VII
THE AGENT
SECTION 7.01. AUTHORIZATION AND ACTION. Each of the LC Issuing Bank and
each Lender hereby appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement or any other Loan Document (including, without limitation,
47
enforcement or collection of the Borrowings), the Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Majority Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes (if
any); provided, however, that the Agent shall not be required to take any action
which exposes the Agent to personal liability or which is contrary to this
Agreement or applicable law. The Agent agrees to give to each Lender prompt
notice of each notice given to it by the Borrower pursuant to the terms of this
Agreement. The Agent shall be deemed to have exercised reasonable care in the
administration and enforcement of this Agreement and the other Loan Documents if
it undertakes such administration and enforcement in a manner substantially
equal to that which Wachovia accords credit facilities similar to the credit
facility hereunder for which it is the sole lender.
SECTION 7.02. AGENT'S RELIANCE, ETC. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement or
any other Loan Document, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the Agent:
(i) may treat the payee of any Note as the holder thereof until the Agent
receives and accepts a Lender Assignment entered into by the Lender which is the
payee of such Note, as assignor, and an Eligible Assignee, as assignee, as
provided in Section 8.07; (ii) may consult with legal counsel (including counsel
for the Borrower), independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (iii) makes no warranty or representation to any Lender and shall not
be responsible to any Lender for any statements, warranties or representations
(whether written or oral) made in or in connection with this Agreement or any
other Loan Document; (iv) shall not have any duty to ascertain or to inquire as
to the performance or observance of any of the terms, covenants or conditions of
this Agreement or any other Loan Document on the part of the Borrower or to
inspect the property (including the books and records) of the Borrower; (v)
shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto or thereto; and (vi) shall incur no liability under or in respect of this
Agreement or any other Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telecopier,
telegram, cable or telex) believed by it to be genuine and signed or sent by the
proper party or parties.
SECTION 7.03. WACHOVIA AND AFFILIATES. With respect to its Commitment and
the Advances made by it, Wachovia shall have the same rights and powers under
this Agreement as any other Lender and may exercise the same as though it were
not the Agent or the LC Issuing Bank; and the term "Bank" or "Banks" and
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include
Wachovia in its individual capacity. Wachovia and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, and generally
engage in any kind of business with, the Borrower, any of its Subsidiaries and
any Person who may do business with or own securities of the Borrower or any
such Subsidiary, all as if Wachovia were not the Agent and without any duty to
account therefor to the Lenders.
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SECTION 7.04. LENDER CREDIT DECISION. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender and
based on the financial statements referred to in Section 4.01(f) and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. INDEMNIFICATION. The Lenders agree to indemnify the Agent
(to the extent not reimbursed by the Borrower), ratably according to (i) on or
before the Termination Date, the respective Percentages of the Lenders, or (ii)
after the Termination Date, the respective outstanding principal amounts of the
Advances, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent under this Agreement,
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to reimburse
the Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including counsel fees) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
to the extent that the Agent is not reimbursed for such expenses by the
Borrower.
SECTION 7.06. SUCCESSOR AGENT. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower and may be removed at any
time with or without cause by the Majority Lenders, with any such resignation or
removal to become effective only upon the appointment of a successor Agent
pursuant to this Section 7.06. Upon any such resignation or removal, the
Majority Lenders shall have the right to appoint a successor Agent, which shall
be a Lender or shall be another commercial bank or trust company (and reasonably
acceptable to the Borrower so long as no Event of Default exists) organized
under the laws of the United States or of any State thereof. If no successor
Agent shall have been so appointed by the Majority Lenders, and shall have
accepted such appointment, within 30 days after the retiring Agent's giving of
notice of resignation or the Majority Lenders' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Lenders, appoint a successor
Agent, which shall be a Lender or shall be another commercial bank or trust
company organized under the laws of the United States of any State thereof
reasonably acceptable to the Borrower. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations under this Agreement. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article VII
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. AMENDMENTS, ETC. No amendment or waiver of any provision of
any Loan Document, nor consent to any departure by the Borrower therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Majority Lenders and, in the case of any amendment, the Borrower, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all the Lenders, do any of the
following: (a) waive, modify or eliminate any of the conditions specified in
Section 3.01 3.02, 3.03 or 3.04 (b) increase or extend the Commitments of the
Lenders (other than pursuant to Section 2.05(d)) or subject the Lenders to any
additional obligations, (c) reduce the principal of, or interest on, the
Advances, any Applicable Margin or any fees or other amounts payable hereunder,
(d) postpone any date fixed for any payment of principal of, or interest on, the
Advances or any fees or other amounts payable hereunder, (e) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Advances, or the number of Lenders, which shall be required for the Lenders or
any of them to take any action hereunder, (f) amend this Section 8.01 or (g)
release any collateral for the obligations of the Borrower hereunder; and
provided, further, that no amendment, waiver or consent shall affect the rights
or duties of the Agent or the LC Issuing Bank under this Agreement or any Note,
unless such amendment, waiver or consent is in writing and signed by the Agent
and the LC Issuing Bank, as the case may be, in addition to the Lenders required
above to take such action; and provided, further that this Agreement may be
amended and restated without the consent of any Lender, the LC Issuing Bank or
the Agent if, upon giving effect to such amendment and restatement, such Lender,
the LC Issuing Bank or the Agent, as the case may be, shall no longer be a party
to this Agreement (as so amended and restated) or have any Commitment or other
obligation hereunder or under any Letter of Credit and shall have been paid in
full all amounts payable hereunder to such Lender, the LC Issuing Bank or the
Agent, as the case may be.
SECTION 8.02. NOTICES, ETC. All notices and other communications provided
for hereunder and under the other Loan Documents shall be in writing (including
telecopier, telegraphic, telex or cable communication) and mailed, telecopied,
telegraphed, telexed, cabled or delivered, if to the Borrower, at its address at
0000 Xxxxx Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxx 00000-0000 Attn: Treasurer, or X.X.
Xxx 00000, Xxxxxxx, Xxxxxxxxx 00000-0000 Attn: Treasurer; if to any Bank, at its
Domestic Lending Office specified opposite its name on Schedule I hereto; if to
any other Lender, at its Domestic Lending Office specified in the Lender
Assignment pursuant to which it became a Lender; and if to the Agent, at its
address at One Wachovia Center, Wachovia Bank, National Association, 301 S.
College Street, NC-0760, Charlotte, North Carolina 28288-0760, Attention:
Xxxxxxxx X. Xxxxxxxx; or, as to each party, at such other address as shall be
designated by such party in a written notice to the other parties. All such
notices and communications shall, when mailed, telecopied, telegraphed, telexed
or cabled, be effective five days after being deposited in the mails, or when
delivered to the telegraph company, telecopied, confirmed by telex answerback or
delivered to the cable company, respectively, except that notices and
communications to the Agent pursuant to Article II or VII shall not be effective
until received by the Agent.
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SECTION 8.03. NO WAIVER; REMEDIES. No failure on the part of any Lender,
the LC Issuing Bank or the Agent to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. COSTS, EXPENSES, TAXES AND INDEMNIFICATION.
(a) The Borrower agrees to pay on demand all costs and expenses of the
Agent in connection with the preparation (including, without limitation,
printing costs), negotiation, execution, delivery, modification and amendment of
this Agreement and the other Loan Documents, and the other documents and
instruments to be delivered hereunder and thereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Agent with respect thereto and with respect to the administration of, and
advising the Agent as to its rights and responsibilities under, this Agreement
and the other Loan Documents. The Borrower further agrees to pay on demand all
costs and expenses, if any (including, without limitation, reasonable counsel
fees and expenses of the Agent, the LC Issuing Bank and each Lender), in
connection with the enforcement and workout (whether through negotiations, legal
proceedings or otherwise) of this Agreement and the other Loan Documents and the
other documents and instruments to be delivered hereunder and thereunder,
including, without limitation, reasonable counsel fees and expenses in
connection with the enforcement of rights under this Section 8.04(a). In
addition, the Borrower shall pay any and all stamp and other taxes payable or
determined to be payable in connection with the execution and delivery of this
Agreement and the other Loan Documents, and the other documents and instruments
to be delivered hereunder and thereunder, and agrees to save the Agent, the LC
Issuing Bank and each Lender harmless from and against any and all liabilities
with respect to or resulting from any delay in paying or omission to pay such
taxes.
(b) If any payment of principal of, or Conversion of, any Eurodollar Rate
Advance is made other than on the last day of the Interest Period for such
Advance as a result of a payment or Conversion pursuant to Section 2.09(f),
2.10, 2.11 or 2.13 or acceleration of the maturity of the Advances pursuant to
Section 6.01 or for any other reason, the Borrower shall, upon demand by any
Lender or the LC Issuing Bank (with a copy of such demand to the Agent), pay to
the Agent for the account of such Lender or the LC Issuing Bank, as the case may
be, any amounts required to compensate such Lender or the LC Issuing Bank for
any additional losses, costs or expenses which it may reasonably incur as a
result of such payment or Conversion, including, without limitation, any loss,
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender to fund or maintain such Advance.
(c) The Borrower hereby agrees to indemnify and hold each Lender, the
Agent, the LC Issuing Bank and their respective officers, directors, employees,
professional advisors and affiliates (each, an "INDEMNIFIED PERSON") harmless
from and against any and all claims, damages, losses, liabilities, costs or
expenses (including reasonable attorney's fees and expenses, whether or not such
Indemnified Person is named as a party to any proceeding or is otherwise
subjected to judicial or legal process arising from any such proceeding) which
any of them may incur or which may be claimed against any of them by any Person
including the Borrower
51
(except for such claims, damages, losses, liabilities, costs and expenses
resulting from such Indemnified Person's gross negligence or willful
misconduct):
(i) by reason of or resulting from the execution, delivery or
performance of any of the Loan Documents or any transaction contemplated
thereby, or the use by the Borrower of the proceeds of any Advance or the
use by the Borrower or any beneficiary of any Letter of Credit of such
Letter of Credit;
(ii) in connection with any documentary taxes, assessments or
charges made by any governmental authority by reason of the execution and
delivery of any of the Loan Documents; or
(iii) in connection with or resulting from the utilization, storage,
disposal, treatment, generation, transportation, release or ownership of
any Hazardous Substance (A) at, upon, or under any property of the
Borrower or any of its Affiliates or (B) by or on behalf of the Borrower
or any of its Affiliates at any time and in any place.
(d) The Borrower's obligations under this Section 8.04 shall survive the
repayment of all amounts owing to the Lenders hereunder and the termination of
the Commitments. If and to the extent that the obligations of the Borrower under
this Section 8.04 are unenforceable for any reason, the Borrower agrees to make
the maximum contribution to the payment and satisfaction thereof which is
permissible under applicable law.
SECTION 8.05. RIGHT OF SET-OFF.
(a) Upon (i) the occurrence and during the continuance of any Event of
Default and (ii) the making of the request or the granting of the consent by the
Majority Lenders specified by Section 6.01 to authorize the Agent to declare all
amounts owing hereunder due and payable pursuant to the provisions of Section
6.01, each Lender is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender to or for the credit or the
account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under any Loan Document, irrespective of whether or
not such Lender shall have made any demand under such Loan Document and although
such obligations may be unmatured. Each Lender agrees promptly to notify the
Borrower after any such set-off and application made by such Lender, provided
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which such Lender may have.
(b) The Borrower agrees that it shall have no right of set-off, deduction
or counterclaim in respect of its obligations hereunder, and that the
obligations of the Lenders hereunder are several and not joint. Nothing
contained herein shall constitute a relinquishment or waiver of the Borrower's
rights to any independent claim that the Borrower may have against the Agent,
the LC Issuing Bank or any Lender for the Agent's, the LC Issuing Bank's or such
Lender's, as the case may be, gross negligence or willful misconduct; provided
that no Lender shall be liable for the conduct of the Agent, the LC Issuing Bank
or any other Lender; provided further that the
52
Agent shall not be liable for the conduct of any Lender or the LC Issuing Bank,
and the LC Issuing Bank shall not be liable for the conduct of any Lender or the
Agent; provided, however that none of the Agent, any Lender or the LC Issuing
Bank shall be liable to the Borrower for any amounts representing indirect,
special, consequential or punitive damages suffered by the Borrower.
SECTION 8.06. BINDING EFFECT. This Agreement shall become effective when
it shall have been executed by the Borrower and the Agent and when the Agent
shall have been notified in writing by each Bank that such Bank has executed it
and thereafter shall be binding upon and inure to the benefit of the Borrower,
the Agent, the LC Issuing Bank and each Lender and their respective successors
and assigns, except that the Borrower shall not have the right to assign its
rights hereunder or any interest herein without the prior written consent of the
Lenders.
SECTION 8.07. ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under the Loan Documents (including,
without limitation, all or a portion of its Commitment, the Advances owing to it
and the Note or Notes (if any) held by it); provided, however, that (i) each
such assignment shall be of a constant, and not a varying, percentage of all of
the assigning Lender's rights and obligations under the Loan Documents, (ii) the
amount of the Commitment of the assigning Lender being assigned pursuant to each
such assignment (determined as of the date of the Lender Assignment with respect
to such assignment) shall in no event be less than the lesser of the amount of
such Lender's then remaining Commitment and $5,000,000 or any whole multiple of
$1,000,000 in excess thereof (except in the case of assignments between Lenders
at the time already parties hereto and between a Lender and an Affiliate of such
Lender), (iii) the Agent, the LC Issuing Bank and, so long as no Event of
Default shall have occurred and be continuing, the Borrower, shall have
consented to such assignment (in each case, which may not be unreasonably
withheld or delayed), and (iv) the parties to each such assignment shall execute
and deliver to the Agent, for its acceptance and recording in the Register, a
Lender Assignment, together with any Note or Notes (if any) subject to such
assignment and a processing and recordation fee of $3,500. Promptly following
its receipt of such Lender Assignment, Note or Notes (if any) and fee, the Agent
shall accept and record such Lender Assignment in the Register. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Lender Assignment, (x) the assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Lender Assignment, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Lender Assignment, relinquish its rights and be released from
its obligations under this Agreement (and, in the case of a Lender Assignment
covering all or the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party hereto).
Notwithstanding anything to the contrary contained in this Agreement, any Lender
may at any time, with notice to the Borrower, the Agent and the LC Issuing Bank,
assign all or any portion of the Advances owing to it to any other Lender or any
Affiliate of a Lender. No such assignment, other than to an Eligible Assignee, a
Lender or an Affiliate of a Lender, shall release the assigning Lender from its
obligations hereunder.
53
(b) By executing and delivering a Lender Assignment, the Lender assignor
thereunder and the assignee thereunder confirm to and agree with each other and
the other parties hereto as follows: (i) other than as provided in such Lender
Assignment, such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Loan Document or any other instrument or document furnished pursuant
thereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; (iii) such assignee confirms that it has received a
copy of each Loan Document, together with copies of the financial statements
referred to in Section 4.01(f) hereof and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into such Lender Assignment; (iv) such assignee will, independently and
without reliance upon the Agent, such assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Loan Documents are required to be performed by it as a Lender.
(c) The Agent shall maintain at its address referred to in Section 8.02 a
copy of each Lender Assignment delivered to and accepted by it and a register
for the recordation of the names and addresses of the Lenders and the Commitment
of, and principal amount of the Advances owing to, each Lender from time to time
(the "REGISTER"). The entries in the Register shall be conclusive and binding
for all purposes, absent manifest error, and the Borrower, the Agent and the
Lenders may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(d) Upon its receipt of a Lender Assignment executed by an assigning
Lender and an assignee representing that it is an Eligible Assignee, together
with any Note or Notes (if any) subject to such assignment, the Agent shall, if
such Lender Assignment has been completed and is in substantially the form of
Exhibit 8.07 hereto, (i) accept such Lender Assignment, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks, financial
institutions or other entities in all or a portion of its rights and obligations
under the Loan Documents (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes (if any) held by it);
provided, however, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Borrower hereunder) shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for
54
the performance of such obligations, (iii) such Lender shall remain the holder
of any such Note (if any) for all purposes of this Agreement, and (iv) the
Borrower, the Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement.
(f) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 8.07, disclose to
the assignee or participant or proposed assignee or participant, any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree, in accordance with
the terms of Section 8.08, to preserve the confidentiality of any Confidential
Information relating to the Borrower received by it from such Lender.
(g) If any Lender (or any bank, financial institution, or other entity to
which such Lender has sold a participation) shall (i) make any demand for
payment under Section 2.08 or 2.12 or (ii) give notice to the Agent pursuant to
Section 2.13, then within 30 days after any such demand or occurrence (if, but
only if, in the case of any demanded payment described in clause (i), such
demanded payment has been made by the Borrower), the Borrower may, with the
approval of the Agent and the LC Issuing Bank (which approval shall not be
unreasonably withheld), and provided that no Event of Default or Unmatured
Default shall then have occurred and be continuing, demand that such Lender
assign in accordance with this Section 8.07 to one or more Eligible Assignees
designated by the Borrower all (but not less than all) of such Lender's
Commitment and the Advances owing to it within the period ending on the later to
occur of (x) the last day in the 30-day period described above and (y) the last
day of the longest of the then-current Interest Periods for such Advances. If
any such Eligible Assignee designated by the Borrower shall fail to consummate
such assignment on terms acceptable to such Lender, or if the Borrower shall
fail to designate any such Eligible Assignees for all or part of such Lender's
Commitment or Advances, then such demand by the Borrower shall become
ineffective; it being understood for purposes of this subsection (g) that such
assignment shall be conclusively deemed to be on terms acceptable to such
Lender, and such Lender shall be compelled to consummate such assignment to an
Eligible Assignee designated by the Borrower, if such Eligible Assignee (1)
shall agree to such assignment by entering into a Lender Assignment with such
Lender and (2) shall offer compensation to such Lender in an amount equal to all
amounts then owing by the Borrower to such Lender hereunder, whether for
principal, interest, fees, costs or expenses (other than the demanded payment
referred to above and payable by the Borrower as a condition to the Borrower's
right to demand such assignment), or otherwise.
(h) Anything in this Section 8.07 to the contrary notwithstanding, any
Lender may assign and pledge all or any portion of its Commitment and the
Advances owing to it to any Federal Reserve Bank (and its transferees) as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank. No such assignment shall release the assigning Lender from its obligations
hereunder.
(i) Notwithstanding anything to the contrary contained herein, any Lender
(a "GRANTING LENDER") may grant to a special purpose funding vehicle (an "SPC")
of such Granting Lender identified as such in writing from time to time by the
Granting Lender to the Agent, the LC
55
Issuing Bank and the Borrower, the option to provide to the Borrower all or any
part of any Advance that such Granting Lender would otherwise be obligated to
make to the Borrower pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any such SPC to make any Advance, (ii)
if such SPC elects not to exercise such option or otherwise fails to provide all
or any part of such Advance, the Granting Lender shall be obligated to make such
Advance pursuant to the terms hereof and (iii) no SPC or Granting Lender shall
be entitled to receive any greater amount pursuant to Section 2.12 or 8.04(b)
than the Granting Lender would have been entitled to receive had the Granting
Lender not otherwise granted such SPC the option to provide any Advance to the
Borrower. The making of an Advance by an SPC hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if, such Advance
were made by such Granting Lender. Each party hereto hereby agrees that no SPC
shall be liable for any indemnity or similar payment obligation under this
Agreement for which a Lender would otherwise be liable so long as, and to the
extent that, the related Granting Lender provides such indemnity or makes such
payment. 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. Notwithstanding the foregoing,
the Granting Lender unconditionally agrees to indemnify the Borrower, the LC
Issuing Bank, the Agent and each Lender against all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be incurred by or
asserted against the Borrower, the LC Issuing Bank, the Agent or such Lender, as
the case may be, in any way relating to or arising as a consequence of any such
forbearance or delay in the initiation of any such proceeding against its SPC.
Each party hereto hereby acknowledges and agrees that no SPC shall have the
rights of a Lender hereunder, such rights being retained by the applicable
Granting Lender. Accordingly, and without limiting the foregoing, each party
hereby further acknowledges and agrees that no SPC shall have any voting rights
hereunder and that the voting rights attributable to any Advance made by an SPC
shall be exercised only by the relevant Granting Lender and that each Granting
Lender shall serve as the administrative agent and attorney-in-fact for its SPC
and shall on behalf of its SPC receive any and all payments made for the benefit
of such SPC and take all actions hereunder to the extent, if any, such SPC shall
have any rights hereunder. In addition, notwithstanding anything to the contrary
contained in this Agreement any SPC may (i) with notice to, but without the
prior written consent of any other party hereto, assign all or a portion of its
interest in any Advances to the Granting Lender and (ii) disclose on a
confidential basis any information relating to its Advances to any rating
agency, commercial paper dealer or provider of any surety, guarantee or credit
or liquidity enhancement to such SPC. This Section 8.07(i) may not be amended
without the prior written consent of each Granting Lender, all or any part of
whose Advance is being funded by an SPC at the time of such amendment.
SECTION 8.08. CONFIDENTIALITY. In connection with the negotiation and
administration of this Agreement and the other Loan Documents, the Borrower has
furnished and will from time to time furnish to the Agent, the LC Issuing Bank
and the Lenders (each, a "RECIPIENT") written information which is identified to
the Recipient in writing, when delivered, as confidential (such information,
other than any such information which (i) as publicly available, or otherwise
known to the Recipient, at the time of disclosure, (ii) subsequently becomes
publicly available other
56
than through any act or omission by the Recipient or (iii) otherwise
subsequently becomes known to the Recipient other than through a Person whom the
Recipient knows to be acting in violation of his or its obligations to the
Borrower, being hereinafter referred to as "CONFIDENTIAL INFORMATION"). The
Recipient will maintain the confidentiality of any Confidential Information in
accordance with such procedures as the Recipient applies generally to
information of that nature. It is understood, however, that the foregoing will
not restrict the Recipient's ability to freely exchange such Confidential
Information with its Affiliates or with current or prospective participants in
or assignees of, or any current or prospective counterparty (or its advisors) to
any swap, securitization or derivative transaction relating to, the Recipient's
position herein, but the Recipient's ability to so exchange Confidential
Information shall be conditioned upon any such Affiliate's or prospective
participant's or assignee's or counterparty's entering into an understanding as
to confidentiality similar to this provision. It is further understood that the
foregoing will not prohibit the disclosure of any or all Confidential
Information if and to the extent that such disclosure may be required (i) by a
regulatory agency or otherwise in connection with an examination of the
Recipient's records by appropriate authorities, (ii) pursuant to court order,
subpoena or other legal process or in connection with any pending or threatened
litigation, (iii) otherwise as required by law, or (iv) in order to protect its
interests or its rights or remedies hereunder or under the other Loan Documents;
in the event of any required disclosure under clause (ii) or (iii) above, the
Recipient agrees to use reasonable efforts to inform the Borrower as promptly as
practicable.
SECTION 8.09. WAIVER OF JURY TRIAL. THE AGENT, THE LC ISSUING BANK, THE
LENDERS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE AGENT, THE LC ISSUING BANK, SUCH
LENDERS OR THE BORROWER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT,
THE LC ISSUING BANK AND THE LENDERS ENTERING INTO THIS AGREEMENT.
SECTION 8.10. GOVERNING LAW. This Agreement and the other Loan Documents
shall be governed by, and construed in accordance with, the laws of the State of
New York. The Borrower, each Lender, the LC Issuing Bank and the Agent (i)
irrevocably submits to the non-exclusive jurisdiction of any New York State
court or Federal court sitting in New York City in any action arising out of any
Loan Document, (ii) agrees that all claims in such action may be decided in such
court, (iii) waives, to the fullest extent it may effectively do so, the defense
of an inconvenient forum and (iv) consents to the service of process by mail,
provided that a copy shall be promptly sent by overnight courier to Xxxxx &
Xxxxxxx LLP, U.S. Bank Center, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
00000-0000, Attention: Emory Ireland, Esq. A final judgment in any such action
shall be conclusive and may be enforced in other jurisdictions. Nothing herein
shall affect the right of any party to serve legal process in any manner
permitted by law or affect its right to bring any action in any other court.
SECTION 8.11. RELATION OF THE PARTIES; NO BENEFICIARY. No term, provision
or requirement, whether express or implied, of any Loan Document, or actions
taken or to be taken
57
by any party thereunder, shall be construed to create a partnership,
association, or joint venture between such parties or any of them. No term or
provision of the Loan Documents shall be construed to confer a benefit upon, or
grant a right or privilege to, any Person other than the parties thereto.
SECTION 8.12. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 8.13. ENTIRE AGREEMENT. This Agreement, together with any Note,
the Administrative Agency and Arranger Fee Letter and any other agreements,
instruments and other documents required to be executed and delivered in
connection herewith, represents the entire agreement of the parties hereto and
supersedes all prior agreements and understandings of the parties with respect
to the subject matter covered hereby.
[Signatures to Follow]
58
S-1
Each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above written.
ALLIANT ENERGY CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
[Signature Page to Alliant Energy Corporation Credit Agreement
Dated as of July 26, 2004]
S-2
WACHOVIA BANK, National Association, as
Agent, LC Issuing Bank and as Lender
By: /s/ Xxx Xxxxx
-------------------------------------
Name: Xxx Xxxxx
Title: Vice President
[Signature Page to Alliant Energy Corporation Credit Agreement
Dated as of July 26, 2004]
S-3
BARCLAYS BANK PLC, as a Lender
By: /s/ Sydney X. Xxxxxx
-------------------------------------
Name: Sydney X. Xxxxxx
Title: Director
[Signature Page to Alliant Energy Corporation Credit Agreement
Dated as of July 26, 2004]
S-4
ABN AMRO BANK, N.V., as a Lender
By: /s/ R. Xxxxx Xxxxxxxxx
-------------------------------------
Name: R. Xxxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Vice President
[Signature Page to Alliant Energy Corporation Credit Agreement
Dated as of July 26, 2004]
S-5
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED, as a Lender
By: /s/ Xxxx X. Xxxx
-------------------------------------
Name: Xxxx X. Xxxx
Title: Director
[Signature Page to Alliant Energy Corporation Credit Agreement
Dated as of July 26, 2004]
S-6
ASSOCIATED BANK, National Association,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
[Signature Page to Alliant Energy Corporation Credit Agreement
Dated as of July 26, 2004]
S-7
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Principal
[Signature Page to Alliant Energy Corporation Credit Agreement
Dated as of July 26, 2004]
S-8
THE BANK OF NEW YORK, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
[Signature Page to Alliant Energy Corporation Credit Agreement
Dated as of July 26, 2004]
S-9
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH, as a Lender
By: /s/ Xxxxxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxxxxx Xxxxxxxxx
Title: Deputy General Manager
[Signature Page to Alliant Energy Corporation Credit Agreement
Dated as of July 26, 2004]
S-10
BANK ONE, NA as a Lender
By: /s/ Xxxx Xxx Xxxx
-------------------------------------
Name: Xxxx Xxx Xxxx
Title: Director
[Signature Page to Alliant Energy Corporation Credit Agreement
Dated as of July 26, 2004]
S-11
CITIBANK N.A., as a Lender
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Managing Director
[Signature Page to Alliant Energy Corporation Credit Agreement
Dated as of July 26, 2004]
S-12
FIFTH THIRD BANK, as a Lender
By: /s/ Xxxxx X. X. Xxxxx
-------------------------------------
Name: Xxxxx X. X. Xxxxx
Title: Vice President
[Signature Page to Alliant Energy Corporation Credit Agreement
Dated as of July 26, 2004]
S-13
KBC BANK N.V., as a Lender
By: /s/ Xxxx-Xxxxxx Diels
-------------------------------------
Name: Xxxx-Xxxxxx Diels
Title: First Vice President
By: /s/ Stefano Snozzi
-------------------------------------
Name: Stefano Snozzi
Title: First Vice President
[Signature Page to Alliant Energy Corporation Credit Agreement
Dated as of July 26, 2004]
S-14
KEYBANK NATIONAL ASSOCIATION, as a Lender
By: /s/ Xxxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Senior Vice President
[Signature Page to Alliant Energy Corporation Credit Agreement
Dated as of July 26, 2004]
S-15
XXXXXX BROTHERS BANK, FSB, as a Lender
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
[Signature Page to Alliant Energy Corporation Credit Agreement
Dated as of July 26, 2004]
S-16
XXXXXXX XXXXX BANK USA, as a Lender
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Director
[Signature Page to Alliant Energy Corporation Credit Agreement
Dated as of July 26, 2004]
S-17
MIZUHO CORPORATE BANK, LTD., as a Lender
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
[Signature Page to Alliant Energy Corporation Credit Agreement
Dated as of July 26, 2004]
S-18
UBS LOAN FINANCE, LLC, as a Lender
By: /s/ Xxxxx Xxxx
-------------------------------------
Name: Xxxxx Xxxx
Title: Associate Director, Banking
Products Services, US
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Associate Director, Banking
Products Services, US
[Signature Page to Alliant Energy Corporation Credit Agreement
Dated as of July 26, 2004]
S-19
XXXXX FARGO BANK, National Association,
as a Lender
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
[Signature Page to Alliant Energy Corporation Credit Agreement
Dated as of July 26, 2004]
