EXHIBIT 10.3
EXECUTION COPY
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$150,000,000
CREDIT AGREEMENT
Dated as of October 11, 2002
Among
WISCONSIN POWER AND LIGHT COMPANY
as Borrower
and
THE BANKS NAMED HEREIN
as Banks
CITIBANK, N.A.
as Administrative Agent
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BANK ONE, NA
Syndication Agent
SALOMON SMITH BARNEY INC.
and
BANC ONE CAPITAL MARKETS, INC
Co-Lead Arrangers
WACHOVIA BANK, NATIONAL ASSOCIATION
Documentation Agent
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS........................................................................1
SECTION 1.01. Certain Defined Terms.....................................................................1
SECTION 1.02. Computation of Time Periods..............................................................14
SECTION 1.03. Computations of Outstandings.............................................................14
SECTION 1.04. Accounting Terms.........................................................................14
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES.....................................................................14
SECTION 2.01. The Advances.............................................................................14
SECTION 2.02. Making the Advances......................................................................14
SECTION 2.03. Fees 16
SECTION 2.04. Reduction of the Commitments.............................................................16
SECTION 2.05. Repayment of Advances....................................................................16
SECTION 2.06. Interest on Advances.....................................................................16
SECTION 2.07. Additional Interest on Eurodollar Rate Advances..........................................17
SECTION 2.08. Interest Rate Determination..............................................................17
SECTION 2.09. Voluntary Conversion of Advances.........................................................18
SECTION 2.10. Optional Prepayments of Advances.........................................................19
SECTION 2.11. Mandatory Prepayments....................................................................19
SECTION 2.12. Increased Costs..........................................................................20
SECTION 2.13. Illegality...............................................................................20
SECTION 2.14. Payments and Computations................................................................21
SECTION 2.15. Noteless Agreement; Evidence of Indebtedness.............................................22
SECTION 2.16. Taxes22
SECTION 2.17. Sharing of Payments, Etc.................................................................24
SECTION 2.18. Extension of Termination Date............................................................24
ARTICLE III CONDITIONS OF LENDING................................................................................25
SECTION 3.01. Conditions Precedent to Closing..........................................................25
SECTION 3.02. Conditions Precedent to Each Borrowing...................................................27
SECTION 3.03. Conditions Precedent to Each Extension of the Termination Date...........................27
SECTION 3.04. Reliance on Certificates.................................................................28
ARTICLE IV REPRESENTATIONS AND WARRANTIES........................................................................28
SECTION 4.01. Representations and Warranties of the Borrower...........................................28
ARTICLE V COVENANTS OF THE BORROWER..............................................................................30
SECTION 5.01. Affirmative Covenants....................................................................30
SECTION 5.02. Negative Covenants.......................................................................34
ARTICLE VI EVENTS OF DEFAULT.....................................................................................39
SECTION 6.01. Events of Default........................................................................39
ARTICLE VII THE AGENT............................................................................................41
SECTION 7.01. Authorization and Action.................................................................41
SECTION 7.02. Agent's Reliance, Etc....................................................................41
SECTION 7.03. Citibank and Affiliates..................................................................42
SECTION 7.04. Lender Credit Decision...................................................................42
SECTION 7.05. Indemnification..........................................................................42
SECTION 7.06. Successor Agent..........................................................................42
ARTICLE VIII MISCELLANEOUS.......................................................................................43
SECTION 8.01. Amendments, Etc..........................................................................43
SECTION 8.02. Notices, Etc.............................................................................44
SECTION 8.03. No Waiver; Remedies......................................................................44
SECTION 8.04. Costs, Expenses, Taxes and Indemnification...............................................44
SECTION 8.05. Right of Set-off.........................................................................45
SECTION 8.06. Binding Effect...........................................................................46
SECTION 8.07. Assignments and Participations...........................................................46
SECTION 8.08. Confidentiality..........................................................................50
SECTION 8.09. WAIVER OF JURY TRIAL.....................................................................50
SECTION 8.10. Governing Law............................................................................50
SECTION 8.11. Relation of the Parties; No Beneficiary..................................................51
SECTION 8.12. Execution in Counterparts................................................................51
EXHIBITS AND SCHEDULES
Exhibit 1.01 - Form of Note
Exhibit 2.02(a) - Form of Notice of Borrowing
Exhibit 2.09 - Form of Notice of Conversion
Exhibit 3.01(a)(viii)-1 - Form of Opinion of Foley & Lardner
Exhibit 3.01(a)(viii)-2 - Form of Opinion of General Counsel
Exhibit 3.01(a)(viii)-3 - Form of Opinion of King & Spalding
Exhibit 8.07 - Form of Lender Assignment
Schedule I - Commitment Schedule
Schedule II - Existing Liens
Schedule III - Existing Debt
CREDIT AGREEMENT
Dated as of October 11, 2002
THIS CREDIT AGREEMENT (this "Agreement") is made by and among:
(i) WISCONSIN POWER AND LIGHT COMPANY, 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) CITIBANK, N.A. ("Citibank"), as administrative agent (the "Agent") for
the Lenders hereunder.
PRELIMINARY STATEMENTS
(1) The Borrower has requested that the Banks provide certain loans to the
Borrower.
(2) The Banks have agreed to make such loans 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):
"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.
"AEC Facility" means the $300,000,000 364-Day Amended and Restated
Credit Agreement, dated as of October 15, 2001, among the Parent, the
banks named therein and Bank One, as administrative agent.
"AER" means Alliant Energy Resources, Inc., a Wisconsin corporation.
"AER Facilities" means (i) the $150,000,000 364-Day Amended and
Restated Credit Agreement, and (ii) the $450,000,000 3-Year Amended and
Restated Credit Agreement, each dated as of October 15, 2001, as
amended, among AER, the banks named therein and Citibank, N.A., as
administrative agent.
"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 Citibank, 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 rate, 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 Level 1, Level 2, Level 3, Level 4, Level 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 Level 1, Level 2, Level 3, Level 4, Level 5 or Level 6
below, opposite the Utilized Eurodollar Rate or the Utilized Base Rate,
as applicable.
======================= ============= ============= ============== ============= ============= ==============
LEVEL 1 LEVEL 2 LEVEL 3 LEVEL 4 LEVEL 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's/A2 By Level 1 But But At Least Level 3 But Level 4 But
Moody's. At Least A- BBB+ By At Least At Least
By S&P's/A3 S&P's/Baa1 BBB By BBB- By
By Moody's. By Moody's. S&P's/Baa2 S&P's/Baa3
By Moody's. By Moody's.
-------------------------------------------------------------------------------------------------------------
Basis Points Per Annum
----------------------- ------------- ------------- -------------- ------------- ------------- --------------
Eurodollar Rate 55.0 62.5 85.0 95.0 175.0 250.0
----------------------- ------------- ------------- -------------- ------------- ------------- --------------
Base Rate 0 0 0 0 0 0
----------------------- ------------- ------------- -------------- ------------- ------------- --------------
Utilized Eurodollar 67.5 75.0 97.5 107.5 225.0 325.0
Rate
----------------------- ------------- ------------- -------------- ------------- ------------- --------------
Utilized Base Rate 12.5 12.5 12.5 12.5 50.0 75.0
======================= ============= ============= ============== ============= ============= ==============
* or unrated
The Applicable Margin will be based upon the Level corresponding to the
Reference Ratings at the time of determination. Any change in the
Applicable Margin resulting from a change in the Reference Ratings shall
be effective, as to any Advance, as of the Borrowing date for such
Advance following 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 Advances made or to be made on such day, the
application of proceeds therefrom and all prepayments and repayments of
Advances made on such day.
"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 2.06(a).
"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 2.09, 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 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 Moody's (or an
equivalent rating by another nationally-recognized credit rating agency
of similar standing if neither of such corporations is then in the
business of rating unsecured 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 Moody's,
respectively (or an equivalent rating by another nationally-recognized
credit rating agency of similar standing if neither of such corporations
is then in the business of rating commercial paper), and 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 Moody's (or
an equivalent rating by another nationally-recognized credit rating
agency of similar standing if neither of such corporations is then in
the business of rating preferred stock of entities engaged in such
businesses).
"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 and the Borrower. All transactions contemplated by the Closing
shall take place on a Business Day on or prior to October 11, 2002, at
the offices of King & Spalding, 1185 Avenue of the Americas, New York,
New York 10036, at 10:00 a.m. (New York City time), or such later
Business Day as the parties hereto may mutually agree.
"Commitment" means, for each Lender, the obligation of such Lender
to make Advances to the Borrower in an amount no greater than the amount
set forth on Schedule I hereto or, if such Lender has entered into one
or more Lender Assignments, 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 pursuant to
Section 2.04(a) or (b).
"Commitments" means the total of the Lenders' Commitments hereunder.
"Confidential Information" has the meaning assigned to that term in
Section 8.08.
"Consenting Lenders" has the meaning assigned to that term in
Section 2.18(c).
"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 accordance with GAAP.
"Consolidated Debt" means, with respect to any Person, at any date
of determination, the aggregate Debt of such Person and its Consolidated
Subsidiaries determined on a consolidated basis in accordance with GAAP.
"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.
"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 2.08 or 2.09.
"Debenture Indenture" means that certain Indenture, dated as of
June 20, 1997, between the Borrower and Firstar Trust Company, as
Trustee, as amended and supplemented from time to time.
"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
hereunder, 2% per annum above the Applicable Rate in effect from time to
time for Base Rate Advances.
"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 Moody's (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), (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, and (C) any Person
described in clause (ii), (iii) or (iv) above shall in addition, be
reasonably acceptable to the Agent and, so long as no Event of Default
shall have occurred and be continuing, to the Borrower.
"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 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 Parent or an ERISA Affiliate of the Parent
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 Parent or an ERISA
Affiliate of the Parent 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 2.08.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.06(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 $150,000,000 Credit Agreement, dated
as of May 24, 2002, as amended, among the Borrower, the banks named
therein and Bank One, NA, as administrative agent.
"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
Level 1, Level 2, Level 3, Level 4, Level 5 or Level 6 based on the
Reference Ratings.
======================= ============= ============= ============== ============= ============= ==============
LEVEL 1 LEVEL 2 LEVEL 3 LEVEL 4 LEVEL 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/A2 By Level 1 But But At Least Level 3 But Level 4 But
Moody's. At Least A- BBB+ By At Least At Least
By S&P/A3 S&P/Baa1 By BBB By BBB- By
By Moody's. Moody's. S&P/Baa2 By S&P/Baa3 By
Moody's. Moody's.
----------------------- ------------- ------------- -------------- ------------- ------------- --------------
Basis Points 10.0 12.5 15.0 17.5 50.0 50.0
======================= ============= ============= ============== ============= ============= ==============
* or unrated
The Facility Fee will be based upon the Level corresponding to the
Reference Ratings at the time of determination. 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.
"Fee Letter" means the letter agreement, dated September 6, 2002,
among the Borrower, the Parent, Interstate Power and Light Company, Bank
One, NA, Banc One Capital Markets, Inc., the Agent and Salomon Smith
Barney Inc.
"First Mortgage Bond Indenture" means that certain Indenture, dated
as of August 1, 1941, between the Borrower and First Wisconsin Trust
Company and George B. Luhman, as Trustees, as amended and supplemented
from time to time.
"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.
"Indemnified Person" has the meaning assigned to that term in
Section 8.04(c).
"Indentures" means the Debenture Indenture and the First Mortgage
Bond Indenture.
"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. (New York City time) 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.
"Lender Assignment" means an assignment and acceptance agreement
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit 8.07.
"Lenders" means the Banks listed on the signature pages hereof and
each Eligible Assignee that shall become a party hereto pursuant to
Section 8.07.
"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 Fee Letter, (ii) agreements, documents and
instruments in favor of the Agent or the Lenders (or the Agent on behalf
of 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
aggregate unpaid principal amount of the Advances owing to Lenders and
(ii) if no Advances are then outstanding, 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; provided, however, a downgrade by S&P or Moody's of its
rating of the Borrower or any Debt of the Borrower shall not, in and of
itself, be deemed to be a Material Adverse Change, but for purposes of
clarity in interpreting the foregoing, it is agreed that the event,
change, circumstance or condition that causes such downgrade (or an
announcement of a potential downgrade or a review for possible ratings
change) of any such rating, and the effect or change caused by such
downgrade (or an announcement of a potential downgrade or a review for
possible ratings change), will be considered in whether there has been a
Material Adverse Change; provided, further, the fact that the Borrower
is unable to issue Debt in the commercial paper market due to market
conditions generally affecting the commercial paper market shall not, in
and of itself, be deemed to be a Material Adverse Change; (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 Moody's Investors Service, Inc. or any successor
thereto.
"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 Parent or any ERISA Affiliate of the Parent is making or
accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make
contributions, such plan being maintained pursuant to one or more
collective bargaining agreements.
"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 which (i) is maintained for employees of the Parent or an ERISA
Affiliate of the Parent and at least one Person other than the Parent
and its ERISA Affiliates or (ii) was so maintained and in respect of
which the Parent or an ERISA Affiliate of the Parent could have
liability under Section 4064 or 4069 of ERISA in the event such plan has
been or were to be terminated.
"Non-Consenting Lender" has the meaning assigned to that term in
Section 2.18(b).
"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 2.09.
"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 aggregate principal amount of all Advances
outstanding on such date.
"Parent" means Alliant Energy Corporation, a Wisconsin corporation.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor entity) established under ERISA.
"Percentage" means, for any Lender on any date of determination,
the percentage obtained by dividing such Lender's Commitment on such day
by the total of the Commitments on such date, and multiplying the
quotient so obtained by 100%.
"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.
"PSC Order" means the order of the Public Service Commission of
Wisconsin (File No. 6680-SB-122), dated May 4, 2001.
"PUHCA" means the Public Utility Holding Company Act of 1935, as
amended from time to time.
"Reference Banks" means the Agent and Bank One, NA, and any
additional or substitute Lenders as may be selected from time to time to
act as Reference Banks hereunder by the Agent and Bank One, NA.
"Reference Ratings" means the ratings assigned by S&P and Moody's
to the Reference Securities. For purposes of the foregoing, if the
ratings assigned to such Reference Security by S&P and Moody's,
respectively, are not comparable (i.e., a "split rating") by: (x) one
level, the level corresponding to the lower of such two ratings shall
control, or (y) two or more levels, the level corresponding to the
rating one level above the lower rating of the S&P Rating or the Moody's
Rating shall control, unless either rating is below BBB- or unrated (in
the case of S&P) or Baa3 or unrated (in the case of Moody's), in which
case the lower of the two ratings shall control.
"Reference Securities" means the Borrower's senior unsecured
non-credit enhanced long-term debt.
"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).
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., or any successor thereto.
"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 Parent or an ERISA
Affiliate of the Parent and no Person other than the Parent and its
ERISA Affiliates, or (ii) was so maintained and in respect of which the
Parent or an ERISA Affiliate of the Parent 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 capital
stock (or comparable interest) having ordinary voting power
(irrespective of whether at the time capital stock (or comparable
interest) of any other class or classes of such corporation or entity
shall or might have voting power upon the occurrence of any contingency)
is at the time directly or indirectly owned by said Person (whether
directly or through one or more other Subsidiaries). In the case of an
unincorporated entity, a Person shall be deemed to have more than 50% of
interests having ordinary voting power only if such Person's vote in
respect of such interests comprises more than 50% of the total voting
power of all such interests in the unincorporated entity.
"Taxes" has the meaning assigned to that term in Section 2.16(a).
"Termination Date" means the earlier to occur of (i) October 10,
2003, or such later date as to which the Lenders may from time to time
agree pursuant to Section 2.18 and (ii) the date of termination or
reduction in whole of the Commitments pursuant to Section 2.04 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.
"Unmatured Default" means an event that, with the giving of notice
or lapse of time, or both, would constitute an Event of Default.
"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.
SECTION 1.02....Computation of Time Periods. Unless otherwise indicated, each
reference in this Agreement to a specific time of day is a reference to New
York City time. In the computation of periods of time under this Agreement,
any period of a specified number of days or months shall be computed by
including the first day or month occurring during such period and excluding
the last such day or month. In the case of a period of time "from" a
specified date "to" or "until" a later specified date, the word "from" means
"from and including" and the words "to" and "until" each means "to but
excluding".
SECTION 1.03....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. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles ("GAAP") consistent with those applied in the
preparation of the financial statements referred to in Section 4.01(f).
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
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 2.10 and utilize the resulting increase in the
Available Commitments for further Borrowings 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 principal amount outstanding hereunder 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.
(New York City time) (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 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
date 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 date 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 date 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
date such amount is made available to the Borrower until the date 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....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 December 31,
2002, and on the later of the Termination Date and the date all Advances are
paid in full.
(b) In addition to the fee provided for in subsection (a) above, the
Borrower shall pay to the Agent, for the account of the Agent, such fees as
are provided for in the Fee Letter.
SECTION 2.04....Reduction of 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
Advances 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. Any termination or reduction of the
Commitments shall be irrevocable, and the Commitments shall not thereafter be
reinstated.
(b) On the Termination Date, the Commitments of the Lenders shall be reduced
to zero.
SECTION 2.05....Repayment of Advances. The Borrower shall repay the principal
amount of each Advance made by each Lender on the Termination Date.
SECTION 2.06....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 2.06), 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,
thereafter 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 2.07....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 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 2.08....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 2.06(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 2.06(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 such 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
(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 2.09....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 2.13, 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 2.09
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.
SECTION 2.10....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 2.10 and in
Section 2.11, the Borrower shall have no right to prepay any principal amount
of any Advances.
SECTION 2.11....Mandatory Prepayments.
(a) On the date of any termination or reduction of the Commitments pursuant
to Section 2.04, the Borrower shall pay or prepay for the ratable accounts of
the Lenders so much of the principal amount outstanding under this Agreement
as shall be necessary in order that the principal amount outstanding (after
giving effect to such prepayment) will not exceed the amount of Commitments
following such termination or reduction, together with (A) accrued interest
to the date of such prepayment on the principal amount repaid or prepaid and
(B) in the case of prepayments of Eurodollar Rate Advances, any amount
payable to the Lenders pursuant to Section 8.04(b).
(b) All prepayments of Advances required to be made pursuant to this
Section 2.11 shall be applied (without reference to minimum dollar
requirements) to outstanding Base Rate Advances up to the full amount thereof
before they are applied to Eurodollar Rate Advances.
(c) In lieu of prepaying any Eurodollar Rate Advance under any provision
(other than Sections 2.14 and 6.01) of this Agreement, the Borrower may, upon
notice to the Agent, deliver such funds to the Agent to be held as additional
cash collateral securing the obligations hereunder. The Agent shall deposit
all amounts delivered to it in a non-interest-bearing special purpose cash
collateral account, to be governed by a cash collateral agreement in form and
substance satisfactory to the Borrower and the Agent, and shall apply all
such amounts in such account against such Advances on the last day of the
Interest Period therefor. The Agent shall promptly notify the Lenders of any
election by the Borrower to deliver funds to the Agent under this
subsection (c).
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 the provisions 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 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 2.07, 2.16,
2.18(c) 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 Federal Funds
Rate shall be made by the Agent, and all computations of interest pursuant to
Section 2.08 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 in the period for which such interest or
fees are payable. Each determination by the Agent (or, in the case of
Section 2.08, 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 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 and the Agent, taxes
imposed on its overall net income and franchise taxes imposed on it by any
jurisdiction, unless such Lender 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
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 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 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 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 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 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 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.
(e) 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, 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 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. 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. 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 Advances made by it (other than pursuant
to Section 2.07, 2.16, 2.18(c) or 8.04(b)) in excess of its ratable share of
payments obtained by all the Lenders on account of the Advances, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances made by them as shall be necessary to cause such purchasing Lender
to share the excess payment ratably with each of them; provided, however,
that if all or any portion of such excess payment is thereafter recovered
from such purchasing Lender, such purchase from each Lender shall be
rescinded and such Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery, together with an amount equal to such
Lender's ratable share (according to the proportion of (i) the amount of such
Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 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.
SECTION 2.18....Extension of Termination Date.
(a) At least 30 but not more than 60 days prior to the then applicable
Termination Date, the Borrower may, by delivering a written request to the
Agent (each such request being irrevocable), request that the Termination
Date be extended for an additional period of 364 days, commencing on the then
applicable Termination Date. Upon receipt of any such notice, the Agent
shall promptly communicate such request to the Lenders.
(b) No earlier than 30 days prior, and no later than 20 days prior, to the
then applicable Termination Date, the Lenders shall indicate to the Agent
whether the Borrower's request to so extend the Termination Date is
acceptable to the Lenders (and, if so, the conditions, if any, relating to
such acceptance), it being understood that the determination by each Lender
will be in its sole and absolute discretion and that the failure of any
Lender to so respond within such period shall be deemed to constitute a
refusal by such Lender to consent to such request, with the result being that
such request is denied (any Lender refusing or deemed to refuse any such
request, a "Non-Consenting Lender"). The Agent shall notify the Borrower, in
writing, of the Lenders' decisions no later than 15 days prior to the then
applicable Termination Date.
(c) Subject to the satisfaction of the conditions set forth in Section 3.03,
in the event that the sum of the Commitments of the Lenders that have
consented to the Borrower's request to extend the then applicable Termination
Date (the "Consenting Lenders") plus the Commitments of Non-Consenting
Lenders with respect to such request that have been assigned pursuant to
Section 8.07(g) hereof shall constitute greater than 50% of the aggregate
Commitments, the then applicable Termination Date shall be extended for an
additional period of 364 days with respect to the Commitments of such
Consenting Lenders. The Commitments of Non-Consenting Lenders with respect
to such request shall automatically terminate on the last day of the then
applicable Termination Date (and the principal amount of all Advances made by
such Non-Consenting Lenders, together with accrued interest and fees to such
date, shall be repaid), unless assigned pursuant to Section 8.07(g) hereof;
provided that, before the Borrower may solicit Eligible Assignees other than
the Consenting Lenders, the Consenting Lenders shall have at least five days
before the end of the then applicable Termination Date to determine whether
to purchase by assignment the Commitments of such Non-Consenting Lenders.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01....Conditions Precedent to Closing. The Commitments of the
Lenders 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 each Lender:
(i) this Agreement, duly executed by the Borrower, each 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 Assistant Secretary of the Borrower;
(viii)favorable opinions of:
(A) Foley & Lardner, 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) Barbara J. Swan, General Counsel of the Borrower, in substantially the
form of Exhibit 3.01(a)(viii)-2 and as to such other matters
as the Majority Lenders, through the Agent, may reasonably
request; and
(C) King & Spalding, 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 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 satisfactory to it that all
amounts outstanding under the AER Facilities, the AEC Facility and 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 Borrowing. The obligation of
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 shall be subject to the conditions
precedent that, on the date of such Borrowing:
(a) the following statements shall be true and correct (and each of the
giving of the applicable Notice of Borrowing and the acceptance by the
Borrower of the proceeds therefrom shall constitute a representation and
warranty by the Borrower that, on the date of such Borrowing, such
statements are true and correct):
(i) the representations and warranties contained in Section 4.01 are true
and correct on and as of the date of such Borrowing, before and
after giving effect to the application of the proceeds therefrom,
as though made on and as of such date; and
(ii) no event has occurred and is continuing, or would result from such
Borrowing or from the application of the proceeds therefrom, that
constitutes an Event of Default or an Unmatured Default; and
(b) 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 Each Extension of the Termination
Date. In the event that the Borrower shall request an extension of the
Termination Date pursuant to Section 2.18, such extension shall take effect
on the then applicable Termination Date, subject to the satisfaction of the
following conditions precedent on or prior to such date, together with such
other conditions precedent as the Consenting Lenders may require in
connection with such extension:
(a) the Agent shall have prepared and delivered to the Borrower and each
Lender (including each new bank and other financial institution to which a
Non-Consenting Lender's Commitment has been assigned pursuant to Section
8.07(g)) a revised Schedule I that reflects the Commitments of each Lender
after giving effect to such extension;
(b) the Borrower shall have paid all fees payable hereunder or payable under
or referenced in Section 2.03, to the extent then due and payable;
(c) the Agent shall have received the following, in form and substance
satisfactory to the Lenders and in sufficient copies for each Lender:
(i) copies of all Governmental Approvals, if any, required in connection
with such extension, certified by the Secretary or an Assistant
Secretary of the Borrower; and
(ii) favorable opinions of:
(A) Foley & Lardner, special counsel for the Borrower, in form acceptable to
the Agent;
(B) Barbara J. Swan, General Counsel of the Borrower, in form acceptable to
the Agent; and
(d) the Agent shall have received such other documents and legal opinions in
respect of any aspect or consequence of the transactions contemplated by
Section 2.18 as the Agent shall reasonably request, including, without
limitation, copies of the resolutions, in form and substance satisfactory to
the Agent, of the Board of Directors of the Borrower authorizing the
extension of the Termination Date; and
(e) 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 on and as of such date and in sufficient copies for each Lender,
stating that:
(i) the representations and warranties contained in Section 4.01 are true
and correct on and as of such date 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 the Termination Date, that constitutes an Event of Default
or an Unmatured Default.
SECTION 3.04....Reliance on Certificates. The Lenders 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 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 borrowing by the Borrower of the Advances on the date of
any Borrowing, 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 (including, without limitation, the PSC Order); 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 to which
the Borrower is a party, except for the following (which has been duly
filed or obtained and is final and in full force and effect): the PSC
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, 2001, there has been no Material Adverse Change.
(f) The audited consolidated balance sheets of the Borrower and its
Subsidiaries as at December 31, 2001, and the related audited
consolidated 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 June 30, 2002, and the
related unaudited consolidated statements of income for the six-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 six months ended June 30, 2002, 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 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 Parent's Report on Form 10-K for the year
ended December 31, 2001 and Report on Form 10-Q for the period ended
June 30, 2002, 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,
2001 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) 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.
(k) Neither the Borrower nor any Subsidiary 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 Advance, 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.
(l) As of the date hereof, the Borrower is not a "holding company" within
the meaning of PUHCA.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01....Affirmative Covenants. So long as any amount in respect of
this Agreement shall remain unpaid or any Lender shall have any Commitment,
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 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 Parent'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 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.
(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
statements of income, retained earnings 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 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 (each a "Report"), as applicable, a
certificate signed by the principal executive officer and the
principal financial officer of the Borrower (each, a "Certifying
Officer") certifying that (i) each Certifying Officer has reviewed
the Report; (ii) based on such Certifying Officer's knowledge, the
Report does not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements made, in light of the circumstances under which such
statements were made, not misleading; (iii) based on such
Certifying Officer's knowledge, the financial statements, and other
financial information included in the Report, fairly represent in
all material respects the financial condition and results of
operations of the Borrower and its Subsidiaries as of, and for, the
period presented in the Report; (iv) such Certifying Officer and
the other Certifying Officer (A) are responsible for establishing
and maintaining internal controls; (B) have designed such internal
controls to ensure that material information relating to the
Borrower and its Subsidiaries is made known to such officers by
others within the entities, particularly during the period in which
the periodic reports are being prepared; (C) have evaluated the
effectiveness of the internal controls of the Borrower as of a date
within 90 days prior to the Report; and (D) have presented in the
Report their conclusions about the effectiveness of their internal
controls based on their evaluation as of that date; (v) such
Certifying Officer and the other Certifying Officer have disclosed
to the auditors and the audit committee of the Board of Directors
of the Borrower (A) all significant deficiencies in the design or
operation of internal controls which could adversely affect the
ability of the Borrower to record, process, summarize, and report
financial data and have identified for the Borrower's auditors any
material weakness in internal controls; and (B) any fraud, whether
or not material, that involves management or other employees who
have a significant role in the internal controls of the Borrower;
and (vi) such Certifying Officer and the other Certifying Officer
have indicated in the Report whether or not there were significant
changes in internal controls or other factors that could
significantly affect internal controls or in other factors that
could significantly affect internal controls subsequent to the date
of their evaluation, including any corrective actions with regard
to significant deficiencies and material weaknesses. Furthermore,
such certificate signed by the Certifying Officers shall (i)
certify as to whether there exists a Default or Event of Default on
the date of such certificate, and if a Default or an Event of
Default then exists, specifying the details thereof and the action
which the Borrower has taken or proposes to take with respect
thereto, (ii) set forth in reasonable detail calculations
demonstrating compliance with Section 5.02(j) and (iii) state
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;
(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 $250,000 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 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 Lenders will be entitled to indemnity under
Section 8.04(c);
(ix) 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 files with the Securities and Exchange Commission or any
governmental authority which may be substituted therefor, or with
any national securities exchange; and
(x) 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 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 in compliance with the PSC
Order, and not to finance any Hostile Acquisition.
(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 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 or any Lender shall have any Commitment, 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
$1,000,000 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
Borrower 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, 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 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;
(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 Debt permitted by Section 5.02(b)(i)(B) and (C); and
(viii)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. (i) Create, incur, assume, or suffer to exist any Debt other
than:
(A) Debt hereunder and under the other Loan Documents;
(B) Debt issued pursuant to the Indentures; and
(C) other Debt of the Borrower that is pari passu with, or subordinate to,
the Debt hereunder;
provided, however, that, both immediately before and after the
incurrence of any Debt described in clause (B) or (C) of this paragraph
(i), the Borrower shall be in compliance with the covenant set forth in
Section 5.02(j).
(ii) Permit any of its Subsidiaries to create, incur, assume, or suffer to
exist any Debt other than:
(A) Debt of any Person acquired by the Borrower or any such Subsidiary
(whether by merger, stock or asset purchase, or otherwise)
that was in effect and outstanding at the time of acquisition;
(B) Debt owing by any such Subsidiary to the Borrower or to any other such
Subsidiary;
(C) Debt of such Subsidiaries under working capital lines and with respect
to Capitalized Lease Obligations not to exceed $5,000,000 in
the aggregate at any one time outstanding (such dollar
limitation to apply to the Debt of any Persons acquired by and
merged into any such Subsidiary to the extent of any surviving
working capital lines and Capitalized Lease Obligations of any
such Person which shall survive such acquisition and merger);
(D) Debt secured by Liens permitted by Section 5.02(a)(iv); and
(E) other Debt set forth in Schedule III hereto;
provided, however, that, both immediately before and after the
incurrence of any Debt described in clause (A), (B), (C), (D) or (E) of
this paragraph (ii), the Borrower shall be in compliance with the
covenant set forth in Section 5.02(j).
(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 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, or such transaction has been
approved by (i) the Securities and Exchange Commission pursuant to the
Public Utility Holding Company Act of 1935; or (ii) the Public Service
Commission of Wisconsin pursuant to the Wisconsin statutes.
(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 or to the Borrower, (ii) any
transaction in which the proceeds from such sale, lease, transfer,
assignment or disposition are solely in 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, 2.10
and 2.11, or (B) applied solely to pay or prepay Debt (together with a
permanent reduction of any commitments related 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 5% of the consolidated assets (valued at book value) of the
Borrower and its Subsidiaries in the aggregate during any
12-calendar-month period in any single or series of transactions,
whether or not related and 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, and (v) sale or capital
contribution of nuclear generation assets to Nuclear Management Company
LLC; provided in each case that no Unmatured Default or Event of Default
shall have occurred and be continuing after giving effect thereto.
(g) Letter of Credit Obligations. Incur, or permit any of its Subsidiaries
to incur, any indebtedness, liabilities or obligations (whether
contingent or otherwise) under reimbursement or similar agreements with
respect to letters of credit issued to support obligations that do not
constitute Debt, except (i) indebtedness, liabilities or obligations
not in excess of $20,000,000 in the aggregate at any one time
outstanding, and (ii) in respect of bid bonds but only if the Borrower's
or such Subsidiary's obligations in respect of all such bid bonds do not
at any time exceed (A) the Available Commitments at such time minus
(B) the aggregate face amount of the Borrower's commercial paper notes
outstanding at such time.
(h) Maintenance of Ownership of Significant Subsidiaries. Sell, assign,
transfer, pledge or otherwise dispose of any shares of capital stock of
any of its Significant Subsidiaries or any warrants, rights or options
to acquire such capital stock, or permit any of its Significant
Subsidiaries to issue, sell or otherwise dispose of any shares of its
capital stock or the capital stock of any other of its Subsidiaries 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.
(i) Restrictive Agreements. Directly or indirectly enter into, incur,
permit to exist, or permit, directly or indirectly, any of its
Significant Subsidiaries to enter into, incur or permit to exist any
agreement or other arrangement that prohibits, restricts or imposes any
condition upon the ability of the Borrower or any Significant Subsidiary
to declare or pay dividends or other distributions to the Parent, the
Borrower or any other Significant Subsidiary; 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.
(j) Capitalization Ratio. Permit the ratio of Consolidated Debt of the
Borrower to Consolidated Capital of the Borrower to exceed .58 to 1.00.
(k) Synthetic Lease Restrictions. Enter into or permit any Subsidiary to
enter into a synthetic lease transaction.
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 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 pay any of its
Debt, including any interest or premium thereon but excluding Debt
hereunder aggregating $25,000,000 or more when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise) and
such failure shall continue after the applicable grace period, if any,
specified in any agreement or instrument relating to such Debt; or any
other default under any agreement or instrument relating to any such
Debt, or any other event, shall occur and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such default or event is to accelerate, or
to permit the acceleration of, the maturity of such Debt; or any such
Debt shall be declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment) prior to the
stated maturity thereof as a result of a default or other similar
adverse event; or
(g) The Borrower or any of its Subsidiaries 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 its Subsidiaries seeking to adjudicate it a bankrupt
or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of its debts
under any law relating to bankruptcy, insolvency, or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, or other similar official for it or
for any substantial part of its property and, in the case of a
proceeding instituted against the Borrower or any of its Subsidiaries,
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 any of its Subsidiaries or the appointment of a receiver, trustee,
custodian or other similar official for the Borrower or such Subsidiary
or any of its property) shall occur; or the Borrower 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
$25,000,000 shall be rendered against the Borrower or any of its
Subsidiaries 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
which is materially adverse to the interests of the Lenders and the
Agent; or
(k) Any ERISA Event shall have occurred with respect to a Plan which 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 or any Lender, such ERISA Event shall still exist;
or
(l) The Parent shall cease to own 100% of the common equity interests of the
Borrower or shall cease to have the power (whether or not exercised) to
elect a majority of the Borrower's 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 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 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 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.
ARTICLE VII
THE AGENT
SECTION 7.01....Authorization and Action. 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, 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 Citibank 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....Citibank and Affiliates. With respect to its Commitment and
the Advances made by it, Citibank 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; and the term "Bank" or "Banks" and "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank 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 Citibank were not the Agent and without any duty to
account therefor to the Lenders.
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.
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 or 3.03,
(b) increase or extend the Commitments of the Lenders 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, unless in writing and signed by the Agent in addition to
the Lenders required above to take such action, affect the rights or duties
of the Agent under this Agreement or any Note; and provided, further that
this Agreement may be amended and restated without the consent of any Lender
or the Agent if, upon giving effect to such amendment and restatement, such
Lender 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 and shall have been paid in full all amounts payable
hereunder to such Lender 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 4902 North Biltmore Lane, Madison, Wisconsin 53718-2132 Attn:
Treasurer, or P.O. Box 77007, Madison, Wisconsin 53707-1007 Attn: Treasurer,
in the case of a mailing; 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 Two Penns
Way, Suite 200, New Castle, Delaware 19720, Attention: Bank Loan Syndication;
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.
SECTION 8.03....No Waiver; Remedies. No failure on the part of any Lender 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 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 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 2.08(f),
2.09, 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 (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender any amounts required to compensate such
Lender 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
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 (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;
(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 or any Lender for the Agent's or such Lender's, as the case may be,
gross negligence or wilful misconduct; provided that no Lender shall be
liable for the conduct of the Agent or any other Lender, and the Agent shall
not be liable for the conduct of any Lender; provided, however that neither
the Agent nor any Lender 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 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) so long as no
Event of Default shall have occurred and be continuing, the Borrower shall
have consented to such assignment (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 and the Agent, 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.
(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) 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 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 2.07 or 2.12, (ii) give notice to the Agent pursuant to
Section 2.13 or (iii) determine not to extend the Termination Date in
response to any request by the Borrower pursuant to Section 2.18, then (A) in
the case of any demand made under clause (i) above, or the occurrence of the
event described in clause (ii) above, 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), and (B) in
the case of the occurrence of the event described in clause (iii) above, at
any time prior to the then-scheduled Termination Date, the Borrower may, with
the approval of the Agent (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
latest to occur of (x) the last day in the period described in clause (A) or
(B) above, as applicable and (y) the last day of the longest of the then
current Interest Periods for such Advances. If any such Eligible Assignee
designated by the Borrower shall fail to consummate such assignment on terms
acceptable to such Lender, or if the Borrower shall fail to designate any
such Eligible Assignees for all or part of such Lender's Commitment or
Advances, then such demand by the Borrower shall become ineffective; it being
understood for purposes of this subsection (g) that such assignment shall be
conclusively deemed to be on terms acceptable to such Lender, and such Lender
shall be compelled to consummate such assignment to an Eligible Assignee
designated by the Borrower, if such Eligible Assignee (1) shall agree to such
assignment by entering into a Lender Assignment with such Lender and
(2) shall offer compensation to such Lender in an amount equal to all amounts
then owing by the Borrower to such Lender hereunder, 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 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 2.13 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 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 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 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 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 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, SUCH LENDERS OR THE BORROWER.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT 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 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
Foley & Lardner, Firstar Center, 777 East Wisconsin Avenue, Milwaukee,
Wisconsin 53202-5367, 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 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
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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the
date first above written.
WISCONSIN POWER AND LIGHT COMPANY
By
----------------------------------
Name:
Title:
CITIBANK, N.A.,
as Agent and as Lender
By
-----------------------------------
Name:
Title:
BANK ONE, NA,
By
-------------------------------------
Name:
Title:
SCHEDULE I
WISCONSIN POWER AND LIGHT COMPANY
Credit Agreement, dated as of October 11, 2002,
among Wisconsin Power and Light Company, as Borrower, the Banks
named therein and Citibank, N.A., as Administrative Agent
Name of Lender Commitment Domestic Lending Office Eurodollar Lending Office
- -------------- ---------- ----------------------- -------------------------
Bank One, NA $16,380,016.38 1 Bank One Plaza, Suite 0363 Same as Domestic Lending
Chicago, Illinois 60670-0363 Office
Attention: Robert G. Bussa
Citibank, N.A. $16,380,016.38 Two Pennsway, Ste. 200 Same as Domestic Lending
New Castle, Delaware 19720 Office
Attention: Bank Loan
Syndications
Wachovia Bank, National $16,380,016.38 191 Peachtree Street, NE, Same as Domestic Lending
Association 27th Floor Office
Atlanta, Georgia 30303
Barclays Bank PLC $10,647,010.64 200 Park Avenue Same as Domestic Lending
New York, New York 10166 Office
The Bank of Tokyo $10,647,010.64 227 West Monroe Street Same as Domestic Lending
Mitsubishi, Ltd. Suite 2300 Office
Chicago Branch Chicago, Illinois 60606
Wells Fargo Bank, National $10,647,010.64 201 Third Street Same as Domestic Lending
Association San Francisco, California Office
94103
ABN AMRO Bank N.V. $10,647,010.64 135 South LaSalle Street Same as Domestic Lending
Chicago, Illinois 60603 Office
Bank of America, N.A. $10,647,010.64 901 Main Street Same as Domestic Lending
Dallas, Texas 75202 Office
FleetBoston $8,190,008.19 100 Federal Street Same as Domestic Lending
Mail Stop MA DE 10008A Office
Boston, Massachusetts 02110
National Australia Bank $8,190,008.19 200 Park Avenue, 34th Floor Same as Domestic Lending
New York, New York 10166 Office
Merrill Lynch Bank USA $4,914,004.91 15 West South Temple, Suite 300 Same as Domestic Lending
Salt Lake City, Utah 84101 Office
JP Morgan Chase $4,627,354.63 1 Chase Manhattan Plaza Same as Domestic Lending
New York, New York 10081 Office
U.S. Bank National $4,095,004.10 777 East Wisconsin Avenue Same as Domestic Lending
Association MK-WI-TGCB Office
Milwaukee, Wisconsin 53202
Australia and New Zealand $4,095,004.10 1177 Avenue of the Americas Same as Domestic Lending
Banking Group New York, New York 10036 Office
KBC Bank, NV $4,095,004.10 125 West 55th Street Same as Domestic Lending
New York, New York 10019 Office
CoBank, ACB $4,095,004.10 5500 South Quebec Street Same as Domestic Lending
Greenwood Village, CO 80111 Office
BNP Paribas $4,095,004.10 919 Third Avenue Same as Domestic Lending
New York, New York 10022 Office
American Trust & Savings $1,228,501.23 P.O. Box 938 Same as Domestic Lending
Bank Dubuque, Iowa 52004 Office
TOTAL $150,000,000
SCHEDULE II
EXISTING LIENS
None
SCHEDULE III
EXISTING DEBT
None