EXHIBIT 10.4
EXECUTION COPY
===============================================================================
$250,000,000
364-DAY
CREDIT AGREEMENT
Dated as of December 27, 2002
Among
ALLIANT ENERGY RESOURCES, INC.
as Borrower
and
ALLIANT ENERGY CORPORATION
HEARTLAND PROPERTIES, INC.
and
ALLIANT ENERGY INTERNATIONAL, INC.
as Guarantors
and
THE LENDERS NAMED HEREIN
as Lenders
and
MERRILL LYNCH CAPITAL CORPORATION
as Administrative Agent
===============================================================================
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INC.
Arranger
===============================================================================
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS........................................................................1
SECTION 1.01. Certain Defined Terms................................................................1
SECTION 1.02. Computation of Time Periods.........................................................17
SECTION 1.03. Computations of Outstandings........................................................17
SECTION 1.04. Accounting Terms....................................................................17
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES.....................................................................18
SECTION 2.01. The Advances........................................................................18
SECTION 2.02. Making the Advances.................................................................18
SECTION 2.03. Fees................................................................................19
SECTION 2.04. Reduction of the Commitments........................................................19
SECTION 2.05. Repayment of Advances...............................................................20
SECTION 2.06. Interest on Advances................................................................20
SECTION 2.07. Additional Interest on Eurodollar Rate Advances.....................................21
SECTION 2.08. Interest Rate Determination.........................................................21
SECTION 2.09. Voluntary Conversion of Advances....................................................22
SECTION 2.10. Optional Prepayments of Advances....................................................22
SECTION 2.11. Mandatory Prepayments...............................................................23
SECTION 2.12. Increased Costs.....................................................................23
SECTION 2.13. Illegality..........................................................................24
SECTION 2.14. Payments and Computations...........................................................24
SECTION 2.15. Noteless Agreement; Evidence of Indebtedness........................................25
SECTION 2.16. Taxes...............................................................................26
SECTION 2.17. Sharing of Payments, Etc............................................................27
ARTICLE III CONDITIONS OF LENDING................................................................................28
SECTION 3.01. Conditions Precedent to Closing.....................................................28
SECTION 3.02. Conditions Precedent to Each Borrowing..............................................29
SECTION 3.03. Reliance on Certificates............................................................30
ARTICLE IV REPRESENTATIONS AND WARRANTIES........................................................................30
SECTION 4.01. Representations and Warranties of the Borrower......................................30
ARTICLE V COVENANTS OF THE LOAN PARTIES..........................................................................33
SECTION 5.01. Affirmative Covenants...............................................................33
SECTION 5.02. Negative Covenants..................................................................37
ARTICLE VI EVENTS OF DEFAULT.....................................................................................41
SECTION 6.01. Events of Default...................................................................41
ARTICLE VII GUARANTEE............................................................................................41
SECTION 7.01. Guarantee...........................................................................41
SECTION 7.02. Right of Contribution...............................................................41
SECTION 7.03. No Subrogation......................................................................41
SECTION 7.04. Amendments, etc. with respect to the Borrower Obligations...........................41
SECTION 7.05. Guarantee Absolute and Unconditional................................................41
SECTION 7.06. Reinstatement.......................................................................41
SECTION 7.07. Payments............................................................................41
ARTICLE VIII THE AGENT...........................................................................................41
SECTION 8.01. Authorization and Action............................................................41
SECTION 8.02. Agent's Reliance, Etc...............................................................41
SECTION 8.03. Agent and Affiliates................................................................41
SECTION 8.04. Lender Credit Decision..............................................................41
SECTION 8.05. Indemnification.....................................................................41
SECTION 8.06. Successor Agent.....................................................................41
ARTICLE IX MISCELLANEOUS.........................................................................................41
SECTION 9.01. Amendments, Etc.....................................................................41
SECTION 9.02. Notices, Etc........................................................................41
SECTION 9.03. No Waiver; Remedies.................................................................41
SECTION 9.04. Costs, Expenses, Taxes and Indemnification..........................................41
SECTION 9.05. Right of Set-off....................................................................41
SECTION 9.06. Binding Effect......................................................................41
SECTION 9.07. Assignments and Participations......................................................41
SECTION 9.08. Confidentiality.....................................................................41
SECTION 9.09. WAIVER OF JURY TRIAL................................................................41
SECTION 9.10. Governing Law.......................................................................41
SECTION 9.11. Relation of the Parties; No Beneficiary.............................................41
SECTION 9.12. Execution in Counterparts...........................................................41
SECTION 9.13. Entire Agreement....................................................................41
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 Thelen Reid & Priest LLP
Exhibit 9.07 - Form of Lender Assignment
Schedule I - Commitment Schedule
Schedule II - Existing Liens
Schedule III - List of Indentures
364-DAY CREDIT AGREEMENT
Dated as of December 27, 2002
THIS 364-DAY CREDIT AGREEMENT (this "Agreement") is made by and among:
(i) ALLIANT ENERGY RESOURCES, INC., a Wisconsin corporation (the "Borrower"),
(ii) ALLIANT ENERGY CORPORATION, a Wisconsin corporation ("Parent"),
HEARTLAND PROPERTIES, INC., a Wisconsin corporation ("HPI") and
ALLIANT ENERGY INTERNATIONAL, INC., an Iowa corporation ("AEI")
(collectively, together with Parent, HPI and AEI, the "Guarantors";
the Guarantors together with the Borrower, the "Loan Parties"),
(iii) the Lenders (as hereinafter defined) listed on the signature pages
hereof and the other Lenders from time to time party hereto, and
(iv) Merrill Lynch Capital Corporation, as administrative agent (the "Agent")
for the Lenders hereunder.
PRELIMINARY STATEMENTS
(1) The Borrower has requested that the Lenders make certain
Advances to the Borrower.
(2) The Lenders have agreed to make such Advances 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.
"AER Notes" means the Borrower's 9.75% Senior Notes due 2013 and
issued and outstanding on the date of this Agreement or, when used in
the determination of the Applicable Margin, if on any Determination
Date, no such Notes are outstanding, the issued and outstanding notes or
debentures of the Borrower selected by the Agent in its sole discretion.
"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 the Agent from time to time,
as its corporate base rate or prime rate of interest; and
(ii) 1/2 of one percent per annum above the Federal Funds Rate.
Each change in the Alternate Base Rate shall take effect concurrently
with any change in such base or prime rate or the Federal Funds Rate.
"Applicable Lending Office" means, with respect to each Lender,
such Lender's Domestic Lending Office in the case of a Base Rate Advance
and such Lender's Eurodollar Lending Office in the case of a Eurodollar
Rate Advance.
"Applicable Margin" means, (a) for any day in any Monthly Period as
to any Eurodollar Rate Advance, a rate per annum equal to the sum of (i)
the Fixed Rate Treasury Spread for the applicable Determination Date
minus the Buy Side Swap Spread for such Determination Date plus (ii)
1.00%, provided that the Applicable Margin as to any Eurodollar Rate
Advance shall in no event be less than 5.00% per annum and (b) as to any
Base Rate Advance at any time, a rate per annum that is 1.00% less than
the Applicable Margin then in effect as to Eurodollar Rate Advances. As
used in this definition, the following terms shall have the following
meanings:
"Buy Side Swap Spread" for any Determination Date means the
bid column ten-year dollar swap spread between United States
Treasury securities and London interbank offered rate borrowings as
quoted on page 18 of the Bloomberg Screen IRSB (or such other page
and place as may replace such page on such service for displaying
the information referred to therein) with respect to a United
States Treasury security listed on such page with a maturity most
nearly equal to that of the AER Notes, as determined by the Agent
as of 11:00 A.M. (New York City time) on such Determination Date.
"Determination Date" means, for any Monthly Period, the second
Business Day prior to the first day of such Monthly Period.
"Fixed Rate Treasury Spread" for any Determination Date, means
the excess, if any, of (a) the average of the yields to maturity on
the Determination Date on the AER Notes received by the Agent from
each of the Quoting Dealers over (b) the average of the yields to
maturity on the Determination Date on a U.S. Treasury security with
a maturity comparable to the maturity of the AER Notes received by
the Agent from the Quoting Dealers.
"Monthly Period" means each of the successive periods of one
month, the first of which shall commence on the date of the initial
Advance.
"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 as to
Base Rate Advances; 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 as to Eurodollar Rate Advances in effect from
time to time during such Interest Period.
"Arranger" means Merrill Lynch & Co. and Merrill Lynch, Pierce,
Fenner & Smith Inc.
"Asset Sale Event" means any Disposition, or series of related
Dispositions, after December 15, 2002 of any property of the Parent or
any of its Subsidiaries (excluding (A) any Disposition permitted by
Section 5.02(f)(i), (B) sales of accounts receivable by Cogenex
Corporation and its Subsidiaries and Energy Performance Services, Inc.
and (C) sales or other dispositions of worn out or obsolete equipment no
longer used and useful in the business of the Parent and its
Subsidiaries, to the extent that the proceeds of such sales or other
dispositions are used to acquire replacement equipment) that yields
gross proceeds to the Parent or any of its Subsidiaries (valued at the
initial principal amount thereof in the case of non-cash proceeds
consisting of notes or other debt securities and valued at fair market
value in the case of other non-cash proceeds) to the Parent or any of
its Subsidiaries in excess of $1,000,000; provided, however, that any
Disposition or series of related Dispositions by a Utility that would
otherwise constitute an Asset Sale Event shall not constitute an Asset
Sale Event except to the extent that the amount of the proceeds thereof
that are paid to the Parent as a dividend (as declared by the Board of
Directors of such Utility in its sole discretion in compliance with all
applicable regulatory restrictions) exceeds $1,000,000.
"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 Borrowings made prior to such time.
"Available Commitments" means, at any time, the aggregate of the
Lenders' then Available Commitments hereunder.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.06(a).
"Borrower Obligations" means the collective reference to the unpaid
principal of and interest on the Borrowings and all other obligations
and liabilities of the Borrower (including, without limitation, interest
accruing at the then applicable rate provided in this Agreement after
the maturity of the Borrowings and interest accruing at the then
applicable rate provided in this Agreement after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or
not a claim for post-filing or post-petition interest is allowed in such
proceeding), to the Agent or any Lender, whether direct or indirect,
absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with
this Agreement, the other Loan Documents or any other document made,
delivered or given in connection with any of the foregoing, in each case
whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Agent or to the
Lenders that are required to be paid by the Borrower pursuant to the
terms of any of the foregoing agreements).
"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 and, if the applicable
Business Day relates to any Eurodollar Rate Advance, on which dealings
are carried on in the London interbank market.
"Capital Expenditures" means, for any period, with respect to any
Person, the aggregate of all expenditures by such Person and its
Subsidiaries for the acquisition or leasing (pursuant to a capital
lease) of fixed or capital assets or additions to equipment (including
replacements, capitalized repairs and improvements during such period)
that should be capitalized under GAAP on a consolidated balance sheet of
such Person and its Subsidiaries.
"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 December 27, 2002, at
the offices of Simpson Thacher & Bartlett, 425 Lexington Avenue, New
York, New York 10010, 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 9.07(c), in each such case
as such amount may be reduced from time to time pursuant to Section 2.04
(a), (b), (c) or (d).
"Commitment Fee" has the meaning assigned to that term in Section
2.03(a).
"Commitments" means the total of the Lenders' Commitments hereunder.
"Confidential Information" has the meaning assigned to that term in
Section 9.08.
"Consolidated Capital" means, with respect to any Person, at any
date of determination, the sum of (i) Consolidated Debt of such Person,
(ii) consolidated equity of the common stockholders of such Person and
its Consolidated Subsidiaries, (iii) consolidated equity of the
preference stockholders of such Person and its Consolidated Subsidiaries
and (iv) consolidated equity of the preferred stockholders of such
Person and its Consolidated Subsidiaries, in each case determined at
such date in accordance with GAAP, excluding, however, from such
calculation, amounts identified as "Accumulated Other Comprehensive
Income (Loss)" in the financial statements of the Parent set forth in
the Parent's Report on Form 10-K or 10-Q, as the case may be, filed most
recently with the Securities and Exchange Commission prior to the date
of such determination.
"Consolidated Debt" means, with respect to any Person, at any date
of determination, the aggregate Debt of such Person and its Consolidated
Subsidiaries determined on a consolidated basis in accordance with GAAP,
but shall not include Nonrecourse Debt of any Subsidiary of the Parent.
"Consolidated Net Worth" means, at any time of determination, with
respect to any Person and its Consolidated Subsidiaries, the net worth
of such Person and such Person's Consolidated Subsidiaries as determined
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.
"Continuing Directors" means the members of the Board of Directors
of the Parent on the date hereof and each other director of the Parent,
if such other director's nomination for election to the Board of
Directors of the Parent is recommended by a majority of the then
Continuing Directors.
"Contractual Obligation" means, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its property is bound.
"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 2.19.
"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.
"Debt Event" means, the issuance or incurrence by the Parent or any
of its Subsidiaries after December 15, 2002 of any Indebtedness in
excess of $10,000,000 other than (A) Indebtedness hereunder, under the
Parent Facility, any of the Utility Facilities, the AER Notes, the
Whiting Financing or any other revolving credit facilities of
Subsidiaries of the Parent (in each case described in this clause (A)
including refinancings and extensions thereof but without giving effect
to any increases thereto subsequent to the date hereof), (B) Nonrecourse
Debt, in an aggregate principal amount not to exceed $62,000,000 (up to
$6,000,000 of which may be guaranteed by the Parent and which may also
include a letter of credit in the amount of $10,764,000), in connection
with the purchase by the Parent or any of its Subsidiaries of a 309
megawatt natural gas fired power plant in Neenah, Wisconsin from Mirant
Corporation, (C) Indebtedness issued by any Foreign Subsidiary of the
Parent, so long as it is not Indebtedness of the Parent or any
Subsidiary of the Parent that is not a Foreign Subsidiary and the
proceeds of the issuance of such Indebtedness is not repatriated to the
Parent or any Subsidiary of the Parent that is not a Foreign Subsidiary,
(D) the issuance of commercial paper by the Parent or any of its
Subsidiaries, (E) the issuance or incurrence of any Indebtedness by
either of the Utilities, except to the extent that the proceeds of such
Indebtedness are paid by such Utility to the Parent as a dividend (as
declared by the Board of Directors of such Utility in its sole
discretion in compliance with all applicable regulatory restrictions)
and (F) any intercompany Indebtedness issued by the Parent to any of its
wholly-owned Subsidiaries or by any such Subsidiary to the Parent or any
of its wholly-owned Subsidiaries (including, without limitation,
Indebtedness incurred under the Utility Money Pool and the Non-Utility
Money Pool); provided, that the foregoing shall not be deemed to imply
that any such Debt Event is permitted under this Agreement.
"Default Rate" means (i) with respect to the unpaid principal of
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 the unpaid interest on any Advance or any other
unpaid amount hereunder, 2% per annum above the Applicable Rate in
effect from time to time for Base Rate Advances.
"Direct Subsidiary" means, with respect to any Person, any
Subsidiary directly owned by such Person.
"Disposition" means, with respect to any property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other
disposition of such property, but does not include the creation of any
Lien.
"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 or other Person engaged generally in the business
of extending credit or purchasing debt instruments; provided, however,
that (A) any such Person which is acquiring all or any portion of the
Available Commitment of any Lender shall also (1) have outstanding
senior unsecured indebtedness that is rated BBB- or better by S&P or
Baa3 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 senior
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, the Borrower.
"Equity Event" means, on any date after the date hereof (a) the
contribution in cash of capital (x) to the Parent by any Person or
(y) to any Subsidiary of the Parent by any Person other than the Parent
or a Subsidiary of the Parent, or (b) any issuance of Equity Interests
(x) by the Parent to any Person or (y) by any Subsidiary of the Parent
to any Person other than the Parent or a Subsidiary of the Parent;
provided that the foregoing shall not include (1) the issuance of Equity
Interests related to (A) the Alliant Energy Corporation Shareowner
Direct Plan or (B) existing stock option or other compensation plans or
(2) the contribution in cash or capital to or the issuance of Equity
Interests by either of the Utilities or Peak Pacific Investment Company,
Ltd., a Singapore corporation, except to the extent that the proceeds
thereof are paid to the Parent as a dividend (as declared by the Board
of Directors of such Person in its sole discretion in compliance with
all applicable regulatory restrictions).
"Equity Interests" means, (a) with respect to a corporation, shares
of capital stock of such corporation or any other interest convertible
or exchangeable into any such interest, (b) with respect to a limited
liability company, a membership interest in such company, (c) with
respect to a partnership, a partnership interest in such partnership,
and (d) with respect to any other Person, an interest in such Person
analogous to interests described in clauses (a) through (c).
"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, any of its Subsidiaries or any of
their respective ERISA Affiliates 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, any of its Subsidiaries or any of their respective ERISA
Affiliates 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, the rate per
annum determined by the British Bankers' Association on the basis of the
rate for deposits in dollars for a period equal to such Interest Period
commencing on the first day of such Interest Period appearing on Page
3750 of the Telerate screen as of 11:00 A.M., London time, two Business
Days prior to the beginning of such Interest Period. In the event that
such rate does not appear on Page 3750 of the Telerate screen (or
otherwise on such screen), the "Eurodollar Rate" for purposes of this
definition shall be determined by reference to such other comparable
publicly available service for displaying eurodollar rates as may be
selected by the Agent after consultation with the Borrower.
"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.
"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 December 15, 2002,
among the Borrower, Merrill Lynch & Co, Merrill Lynch, Pierce, Fenner &
Smith Inc. and Merrill Lynch Capital Corporation.
"Foreign Subsidiary" means any Subsidiary of the Borrower that is
organized under the law of any jurisdiction other than any state of the
United States of America.
"GAAP" has the meaning assigned to that term in Section 1.04.
"Governmental Approval" means any authorization, consent, approval,
license, franchise, lease, ruling, tariff, rate, permit, certificate,
exemption of, or filing or registration with, any governmental authority
or other legal or regulatory body.
"Granting Lender" has the meaning assigned to that term in
Section 9.07(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.
"Indebtedness" means, for any Person, all indebtedness, liabilities
and other monetary obligations of such Person of a type described in
clauses (i), (ii) and (iii) of the definition of the term "Debt".
"Indemnified Person" has the meaning assigned to that term in
Section 9.04(c).
"Interest Coverage Ratio" means, as of any date, the ratio of (i)
consolidated operating income plus depreciation and amortization of the
Parent and its Consolidated Subsidiaries for the four fiscal quarters
ending on such date to (ii) the Interest Expense payable by the Parent
and its Consolidated Subsidiaries during such period.
"Interest Expense" means, for any Person and its Consolidated
Subsidiaries and for any period, all consolidated interest expense
(including all amortization of debt discount and expenses and reported
interest) on all Debt of such Person and its Consolidated Subsidiaries
during such period.
"Interest Period" means, for each Eurodollar Rate Advance made as
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Advance
into such a Eurodollar Rate Advance and ending on the last day of the
period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be 1, 2, 3 or 6 months, as
the Borrower may, upon notice received by the Agent not later than 11:00
a.m. on the third Business Day prior to the first day of such Interest
Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period that ends
after the Termination Date;
(ii) Interest Periods commencing on the same date for Advances
comprising part of the same Borrowing shall be of the same
duration; and
(iii)whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next
succeeding Business Day, provided, in the case of any Interest
Period for a Eurodollar Rate Advance, that if such extension
would cause the last day of such Interest Period to occur in
the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day.
"IPL" means Interstate Power and Light Company, an Iowa corporation.
"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 9.07.
"Lenders" means the banks listed on the signature pages hereof and
each Eligible Assignee that shall become a party hereto pursuant to
Section 9.07.
"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) all 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
outstanding Advances and (ii) if there are no Outstanding Borrowings,
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 Governors of the Federal Reserve System.
"Material Adverse Change" means any event, development or
circumstance that has had or could reasonably be expected to have a
material adverse effect on (a) the operations, business, properties,
liabilities (actual or contingent), condition (financial or otherwise)
or prospects of the Parent or the Parent and its Subsidiaries taken as a
whole; provided, however, a downgrade by S&P or Moody's of its rating of
the Parent or any Debt of the Parent 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 Parent or any Consolidated
Subsidiary 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; (b)
the ability of any Loan Party to perform its obligations under any of
the Loan Documents to which it is a party; or (c) the legality,
validity, binding effect or enforceability against any Loan Party or any
of the Loan Documents to which it is a party.
"Moody's" means Moody's Investors Service, Inc. or any successor
thereto.
"Mortgage Bond Indentures" means the indentures listed on
Schedule III hereto.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, which is subject to Title IV of ERISA and
to which the 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.
"Net Cash Proceeds" means
(i) in connection with any Asset Sale Event, the proceeds thereof
in the form of Cash and Cash Equivalents (including any such
proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when
received) of such Asset Sale Event, net of (x) (1) attorneys'
fees, accountants' fees, investment banking fees and other
customary fees and expenses actually incurred in connection
therewith, (2) taxes paid or reasonably estimated to be
payable as a result thereof (after taking into account any
available tax credits or deductions and (3) Debt of a
Subsidiary of the Borrower that is repaid in connection with a
sale of such Subsidiary or its assets, (y) any tax sharing
arrangements and (z) amounts required to be applied to the
repayment of Debt in accordance with any mandatory prepayment
or redemption provisions of any Debt of the Parent or any of
its Subsidiaries outstanding on the date of this Agreement;
and
(b) in connection with any Debt Event or Equity Event, the cash
proceeds received from such issuance or incurrence, net of
(without duplication) attorneys' fees, investment banking
fees, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses actually
incurred in connection therewith, and amounts required to be
applied to the repayment of Debt in accordance with any
mandatory prepayment or redemption provisions of any Debt of
the Parent or any of its Subsidiaries outstanding on the date
of this Agreement.
"Nonrecourse Debt" means any Debt that finances the acquisition,
development, ownership or operation of an asset to the extent that the
Person to which such Debt is owed has no recourse whatsoever to the
Parent or any of its Affiliates other than:
(i) recourse to the named obligor with respect to such Debt (the
"Debtor") for amounts limited to the cash flow or net cash
flow (other than historic cash flow or historic net cash flow)
from the asset; and
(ii) recourse to the Debtor for the purpose only of enabling
amounts to be claimed in respect of such Debt in an
enforcement of any security interest or lien given by the
Debtor over the asset or the income, cash flow or other
proceeds deriving from the asset (or given by any shareholder
or the like in the Debtor over its shares or like interest in
the capital of the Debtor) to secure the Debt, but only if the
extent of the recourse to the Debtor is limited solely to the
amount of any recoveries made on any such enforcement; and
(iii)recourse to the Debtor generally or indirectly to any
Affiliate of the Debtor, under any form of assurance,
undertaking or support, which recourse is limited to a claim
for damages (other than liquidated damages and damages
required to be calculated in a specified way) for a breach of
an obligation (other than a payment obligation or an
obligation to comply or to procure compliance by another with
any financial ratios or other tests of financial condition) by
the Person against which such recourse is available.
"Non-Utility Money Pool" means the cash management program of the
Borrower and certain of its Subsidiaries known as the "Non-Utility Money
Pool" that is described in the Post-Effective Amendment No. 4 to Form
U-1 Application or Declaration (File No. 70-10052) filed, pursuant to
PUHCA, with the Securities and Exchange Commission on December 12, 2002.
"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 Borrowings" means, on any date of determination, an
amount equal to the aggregate principal amount of all Borrowings
outstanding on such date.
"Parent Facility" means the up to $650,000,000 364-Day Credit
Agreement, dated as of October 11, 2002, among Parent, the lenders
parties thereto and Bank One, NA as administrative agent and issuer of
letters of credit.
"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 (a) the sum of such Lender's
Available Commitment and outstanding Advances on such day by (b) the sum
of the Available Commitments and aggregate outstanding Advances on such
date, and multiplying the quotient so obtained by 100%.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"PUHCA" means the Public Utility Holding Company Act of 1935, as
amended from time to time.
"Quoting Dealers" means collectively, Merrill Lynch, Pierce, Fenner
& Smith Inc. and two other dealers of comparable recognized standing
identified by the Agent in consultation with the Borrower.
"Register" has the meaning assigned to that term in Section 9.07(c).
"Report" has the meaning assigned to that term in
Section 5.01(h)(iv).
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any
Equity Interests in the Parent, or any payment (whether in cash,
securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of (x) any such Equity
Interests in the Parent or (y) any option, warrant or other right to
acquire any such Equity Interests in the Parent.
"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 Parent.
"Significant Subsidiary" means any Subsidiary of the Parent 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 Parent 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, any of its
Subsidiaries or any of their respective ERISA Affiliates and no Person
other than the Parent, any of its Subsidiaries or any of their
respective ERISA Affiliates, or (ii) was so maintained and in respect of
which the Parent, any of its Subsidiaries or any of their respective
ERISA Affiliates 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 9.07(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.
"Subsidiary Guarantor" has the meaning assigned to that term in
Section 7.02(a).
"Taxes" has the meaning assigned to that term in Section 2.16(a).
"Termination Date" means the earlier to occur of (i) December 26,
2003 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.
"Utilities" means, collectively, WPL and IPL.
"Utility Facilities" means (i) the $200,000,000 Credit Agreement,
dated as of October 11, 2002, among IPL, the banks named therein and
Citibank, N.A., as administrative agent; and (ii) the $150,000,000
Credit Agreement, dated as of October 11, 2002, among WPL, the banks
named therein and Citibank, N.A., as administrative agent.
"Utility Money Pool" means the cash management program of the
Parent and the Utilities known as the "Utility Money Pool" that is
described in the Post-Effective Amendment No. 4 to Form U-1 Application
or Declaration (File No. 70-10052) filed, pursuant to PUHCA, with the
Securities and Exchange Commission on December 12, 2002.
"Whiting Financing" means the $350,000,000 Credit Agreement, dated
as of December 20, 2002, among Whiting Petroleum Corporation, the
financial institutions listed therein, Bank One, NA, as administrative
agent and Wachovia Bank, National Association, as syndication agent.
"WPL" means Wisconsin Power and Light Company, a Wisconsin
corporation.
SECTION 1.02....Computation of Time Periods. Unless otherwise indicated, each
reference in this Agreement to a specific time of day is a reference to New
York, New York 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. 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 amount not to exceed at any time
such Lender's then Available Commitment. Each Borrowing shall be in an
aggregate amount not less than $10,000,000 (or, if lower and if such
Borrowing consists solely of Base Rate Advances, 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. Amounts borrowed
and repaid by the Borrower hereunder may not be reborrowed.
SECTION 2.02....Making the Advances.
(a) Each Borrowing shall be made on notice, given not later than 11:00 a.m.
(i) on the third Business Day prior to the date of the proposed Borrowing, in
the case of a Borrowing comprised of Eurodollar Rate Advances and (ii) on the
date of the proposed Borrowing, in the case of a Borrowing comprised of Base
Rate Advances, in each case by the Borrower to the Agent, which shall give to
each Lender prompt notice thereof by telecopier, telex or cable. Each such
notice of a Borrowing (a "Notice of Borrowing") shall be by telecopier, telex
or cable, in substantially the form of Exhibit 2.02(a) hereto, specifying
therein the requested (A) date of such Borrowing, (B) Type of Advances
comprising such Borrowing, (C) aggregate amount of such Borrowing and (D) in
the case of a Borrowing comprised of Eurodollar Rate Advances, the initial
Interest Period for each such Advance. Each Lender shall, before (x) 12:00
noon on the date of such Borrowing, in the case of a Borrowing comprised of
Eurodollar Rate Advances, and (y) 1:00 p.m. on the date of such Borrowing, in
the case of a Borrowing comprised of Base Rate Advances, make available for
the account of its Applicable Lending Office to the Agent at its address
referred to in Section 9.02, 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 a
commitment fee (the "Commitment Fee") which shall accrue at the rate of 0.50%
per annum on the daily amount of the Available Commitment of such Lenders in
effect hereunder at any time during the period from and including the date of
this Agreement to but excluding the Termination Date. Except as provided for
in Section 2.04(a), the Commitment Fee shall be payable quarterly in arrears
on the last day of each March, June, September and December, commencing March
31, 2003, and on the Termination Date, in immediately available funds, to the
Agent for distribution among the Lenders.
(b) In addition to the Commitment Fee, 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'
written notice to the Agent, to terminate in whole or reduce ratably in part
the respective Available Commitments of the Lenders; provided that (i) each
partial reduction shall be in a minimum amount of $10,000,000 or any whole
multiple of $1,000,000 in excess thereof and (ii) the Borrower shall pay to
the Agent for the account of the Lenders, on the date of each termination or
reduction of the aggregate amount of the Commitments of the Lenders, the
Commitment Fee on the amount of the Commitments so terminated or reduced
accrued through the date of such termination or reduction.
(b) On the date of any Debt Event:
(i) if the sum of (x) the Net Cash Proceeds thereof and (y) the Net
Cash Proceeds of all other Debt Events that shall have occurred on or
before such date shall be equal to or less than $300,000,000, the Net Cash
Proceeds of such Debt Event shall be applied to the prepayment of the
Advances until all Advances outstanding immediately prior to such
prepayment, if any, have been repaid in full.
(ii) if the sum of (x) the Net Cash Proceeds thereof and (y) the Net
Cash Proceeds of all other Debt Events that shall have occurred on or
before such date exceed $300,000,000, (A) such Net Cash Proceeds shall be
applied to the prepayment of the Advances until all Advances outstanding
immediately prior to such prepayment, if any, have been repaid in full and
(B) an amount equal to such excess over $300,000,000 (after deducting from
such amount the aggregate of the amounts, if any, previously so applied in
accordance with this clause (B)) shall be applied to reduce permanently the
Available Commitments.
(c) On the date of any Equity Event, an amount equal to the excess, if any,
of the sum of (x) the Net Cash Proceeds thereof and (y) the Net Cash Proceeds
of all other Equity Events that occur after the date of this Agreement and on
or before such date over $350,000,000 shall be applied (after deducting from
such amount the aggregate of the amounts, if any, previously so applied in
accordance with this paragraph), first, to the prepayment of the Advances
until all Advances outstanding immediately prior to such prepayment, if any,
have been repaid in full and, second, to reduce permanently the Available
Commitments.
(d) On the date of any Asset Sale Event, the Net Cash Proceeds thereof shall
be applied, first, to the prepayment of the Advances until all Advances
outstanding immediately prior to such prepayment, if any, have been repaid in
full and, second, to reduce permanently the Available Commitments.
(e) On the Termination Date, the Commitments of the Lenders shall be reduced
to zero.
(f) Any termination or reduction of the Commitments under this Section 2.04
shall be irrevocable, and the Commitments shall not thereafter be reinstated.
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, 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) If any one or more of the Quoting Dealers shall not furnish timely
information to the Agent for the purpose of determining any Applicable
Margin, the Agent shall determine such Applicable Margin on the basis of
timely information furnished by the remaining Quoting Dealers.
(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
Quoting Dealer for the purpose of determining the applicable interest rate
under Section 2.06(b).
(c) 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.
(d) 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.
(e) 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.
(f) 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 2.08 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 9.04(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
$10,000,000 (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 9.04(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 or prepayment of Advances pursuant to
Section 2.04, the Borrower shall pay (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 9.04(b).
(b) All prepayments of Advances required to be made pursuant to Section
2.04, 2.10 or 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 2.13 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 subsections (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 9.07(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 9.02 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 or
9.04(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 9.07(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 Commitment Fee 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 2.07 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 2.07, 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 9.07) be represented by one or more Notes
payable to the order of the payee named therein or any assignee pursuant to
Section 9.07, 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 9.02, 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 or such Lender will deliver to the Borrower and the
Agent either (i) a statement that it is organized under the laws of a
jurisdiction within the United States or (ii) duly completed copies of such
form or forms as may from time to time be prescribed by the United States
Internal Revenue Service indicating that 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 the Advances made by it (other than
pursuant to Section 2.07, 2.12, 2.16 or 9.04(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.
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 Guarantor,
each Lender 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 each
of the Loan Parties approving this Agreement and the other Loan Documents
to which such Loan Party is, or is to be, a party, and (B) all documents
evidencing other necessary corporate action on the part of such Loan Party
with respect to this Agreement and the other Loan Documents to which such
Loan Party is, or is to be, a party, certified by the Secretary or an
Assistant Secretary of the applicable Loan Party;
(iv) a certificate of the Secretary or an Assistant Secretary of each
of the Loan Parties certifying the names, true signatures and incumbency of
the officers of such Loan Party authorized to sign this Agreement and the
other Loan Documents to which such Loan Party is, or is to be, a party;
(v) copies of the Certificate of Incorporation (or comparable charter
document) and by-laws of each of the Loan Parties, together with all
amendments thereto, certified by the Secretary or an Assistant Secretary of
the applicable Loan Party;
(vi) copies of all Governmental Approvals, if any, required in
connection with the execution, delivery and performance by each of the Loan
Parties of this Agreement and the other Loan Documents, certified by the
Secretary or an Assistant Secretary of the applicable Loan Party;
(vii) copies of the financial statements referred to in
Section 4.01(f), certified by the Secretary or an Assistant Secretary of
the Parent;
(viii) favorable opinions of:
(A) Foley & Lardner, special counsel for each of the Loan Parties, 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, Executive Vice President and General Counsel of
the Parent and 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) Thelen Reid & Priest LLP, special PUHCA counsel for each of the
Loan Parties, 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 Parent, 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.
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) shall be subject to the conditions precedent that, on
the date of such Advance:
(a) the following statements shall be true and correct (and the giving of
the applicable Notice of Borrowing and the acceptance by the Borrower of the
proceeds of such Borrowing shall constitute a representation and warranty by
the Parent 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 of any Borrowing made in
connection therewith 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 any Borrowing made in connection
therewith that constitutes an Event of Default or an Unmatured Default;
(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;
(c) the Arranger shall not have presented to Parent, the Borrower or any of
their respective Subsidiaries a then available alternative debt financing
(other than a debt financing to either of the Utilities) the terms of which
are reasonable and prudent and the proceeds of which would be available for
the purposes to which the proceeds of such Advances then requested to be made
would otherwise be put; and
(d) the trading level, for the ten trading sessions preceding the date of
such Borrowing, of the AER Notes (which shall be determined by the Agent
taking an average trading spread from the Quoting Dealers) shall not have
been greater than 650 basis points above the yield on the relevant U.S.
Treasury security with a final maturity comparable to that of the AER Notes.
SECTION 3.03....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 any of the Loan Parties 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 Parent
represents and warrants as follows:
(a) The Parent 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 each of the Loan Parties of
this Agreement and the other Loan Documents to which such Loan Party is
or will be a party are within such Loan Party's corporate powers, have
been duly authorized by all necessary corporate action, and do not and
will not contravene (i) such Loan Party's charter or by-laws, (ii) any
law, or (iii) any legal or contractual restriction binding on or
affecting such Loan Party; 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 any of the Loan Parties of any Loan Document
except for (a) Release No. 35-27448; 70-9891, issued by the Securities
and Exchange Commission on October 3, 2001, as supplemented by the order
dated December 17, 2002 (Release No. 35-27620), and (b) Release No.
35-27542; 70-10052 issued by the Securities and Exchange Commission on
June 21, 2002, as supplemented by the orders dated October 10, 2002
(Release No. 35-27575) and December 13, 2002 (Release No. 35-27615),
each of which is final and in full force and effect and not subject to
appeal, rehearing, review or reconsideration.
(d) This Agreement is, and each other Loan Document to which any of the Loan
Parties will be a party when executed and delivered hereunder will be,
legal, valid and binding obligations of such Loan Party enforceable
against such Loan Party 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 September 30, 2002, there has been no Material Adverse Change.
(f) The audited consolidated balance sheets of the Parent and its
Subsidiaries as at December 31, 2001, and the related audited
consolidated, and, with respect to the Parent, consolidating, statements
of income of the Parent and its Subsidiaries for the fiscal year then
ended, and the unaudited consolidated balance sheets of the Parent and
its Subsidiaries as at September 30, 2002 and the related unaudited
consolidated statements of income for the nine-month period ended on
such date, copies of each of which have been furnished to each Lender,
fairly present (subject, in the case of such balance sheets and
statements of income for the nine-month period ended on September 30,
2002, to year-end adjustments) the consolidated financial condition of
the Parent and its Subsidiaries as at such dates and the consolidated
results of operations of the Parent 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
September 30, 2002, there is no pending or threatened action or
proceeding affecting the Parent 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 Parent or any of its Subsidiaries or any of
their respective ERISA Affiliates which would result in a material
liability to the Parent or any of its Subsidiaries. No "prohibited
transaction" has occurred with respect to any Plan of the Parent or any
of its Subsidiaries that is reasonably expected to result in a material
liability to the Parent or any of its Subsidiaries. None of the Parent,
any of its Subsidiaries or any of their respective ERISA Affiliates has
incurred nor reasonably expects to incur any material withdrawal
liability under ERISA to any Multiemployer Plan.
(i) The Parent and each of its Subsidiaries 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 Parent or its Subsidiary, as applicable, is contesting in good faith
an assertion of liability based on such returns, has provided adequate
reserves for payment thereof in accordance with GAAP.
(j) Neither the Parent nor any of its Subsidiaries 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 Borrowing, Margin
Stock will constitute less than 25 percent of the assets (as determined
by any reasonable method) of the Parent and its Subsidiaries on a
consolidated basis.
(k) Neither the Parent nor any of its Subsidiaries is an "investment
company" or a company "controlled" by an "investment company", within
the meaning of the Investment Company Act of 1940, as amended.
(l) None of the Loan Parties is a "holding company" or a "subsidiary
company" or an "affiliate" of a "holding company" within the meaning of
PUHCA, except that the Parent is a "registered holding company" and each
of the Borrower and the Guarantors (other than the Parent) is a
"subsidiary company" of the Parent within the meaning of PUHCA. The
execution, delivery and performance by the Loan Parties of this
Agreement and each other Loan Documents to which any of the Loan Parties
is or will be a party, and their respective obligations hereunder and
thereunder, do not and will not violate any provision of PUHCA or any
rule or regulation under PUHCA.
(m) Neither the Parent nor any Subsidiary is in default in any respect under
any Contractual Obligation which default could reasonably be expected to
result in a Material Adverse Change. No Unmatured Default or Event of
Default has occurred or exists or would result from the consummation of
the transactions contemplated by this Agreement and the other Loan
Documents.
(n) No report, financial statement or other written information furnished by
or on behalf of the Parent or any of the Loan Parties to the Agent or
any Lender pursuant to or in connection with this Agreement or any other
Loan Documents contains or will contain any material misstatement of
fact or omits or will omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under which
they were or will be made, not misleading.
(o) The Parent and each of its Subsidiaries has complied in all material
respects with all Federal, state, local and other statutes, ordinances,
orders, judgments, rulings and regulations relating to environmental
pollution or to environmental or nuclear regulation or control, except
to the extent that failure to so comply could not reasonably be expected
to result in a Material Adverse Change. Neither the Parent nor any of
its Subsidiaries has received notice of any failure so to comply, except
where such failure could not reasonably be expected to result in a
Material Adverse Change. Except as set forth in or contemplated by the
financial statements referred to in Section 4.01(f), the facilities of
the Parent or any of its Subsidiaries, as the case may be, are not used
to manage any hazardous wastes, hazardous substances, hazardous
materials, toxic substances, toxic pollutants or substances similarly
denominated, as those terms or similar terms are used in the Resource
Conservation and Recovery Act, the Comprehensive Environmental Response
Compensation and Liability Act, the Hazardous Materials Transportation
Act, the Toxic Substance Control Act, the Clean Air Act, the Clean Water
Act or any other applicable law relating to environmental pollution, or
any nuclear fuel or other radioactive materials, in violation in any
material respect of any law or any regulations promulgated pursuant
thereto, except to the extent that such violations could not reasonably
be expected to result in a Material Adverse Change. Except as set forth
in or contemplated by such financial statements, the Parent is aware of
no events, conditions or circumstances involving environmental pollution
or contamination that could reasonably be expected to result in a
Material Adverse Change.
ARTICLE V
COVENANTS OF THE LOAN PARTIES
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 Parent 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 Parent 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 Parent 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 Parent 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 Parent, 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 Parent and each of its
Subsidiaries, and to discuss the affairs, finances and accounts of the
Parent and its Subsidiaries with the Parent 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 Parent and its Subsidiaries
and the assets and business of the Parent 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 Parent 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 Parent,
a consolidated balance sheet of the Parent and its Subsidiaries as at the
end of such quarter and consolidated, and, with respect to the Parent,
consolidating, statements of income, retained earnings and cash flows of
the Parent 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 Parent 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 Parent, a copy of the audited consolidated
balance sheet of the Parent and its Subsidiaries as at the end of such
fiscal year and consolidated, and, with respect to the Parent,
consolidating, statements of income, retained earnings and cash flows of
the Parent 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 Parent 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"), a
certificate signed by the principal executive officer and the principal
financial officer of the Parent (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
Parent 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 Parent 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 Parent (A) all significant deficiencies in the design or
operation of internal controls which could adversely affect the ability of
the Parent to record, process, summarize, and report financial data and
have identified for the Parent'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 Parent; 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 an Unmatured
Default or Event of Default has occurred and is continuing on the date of
such certificate, and if an Unmatured Default or an Event of Default has
then occurred and is continuing, specifying the details thereof and the
action that the Parent has taken or proposes to take with respect thereto,
(ii) set forth in reasonable detail calculations demonstrating compliance
with Sections 5.02(h), (i) and (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 Parent or any of its Subsidiaries or any of
their respective ERISA Affiliates has occurred and (B) within 10 days after
any other ERISA Event with respect to any Plan of the Parent or any of its
Subsidiaries or any of their respective ERISA Affiliates has occurred, a
statement of a Senior Financial Officer describing such ERISA Event and the
action, if any, which the Parent or such ERISA Affiliate proposes to take
with respect thereto;
(vi) promptly after receipt thereof by the Parent or any of its ERISA
Affiliates from the PBGC copies of each notice received by the Parent or
such ERISA Affiliate of the PBGC's intention to terminate any Plan of the
Parent or such ERISA Affiliate or to have a trustee appointed to administer
any such Plan;
(vii) promptly after receipt thereof by the Parent or any of its
Subsidiaries or any of their respective ERISA Affiliates from a
Multiemployer Plan sponsor, a copy of each notice received by the Parent or
any of its Subsidiaries or any of their respective ERISA Affiliates
concerning the imposition or amount of withdrawal liability in an aggregate
principal amount of at least $250,000 pursuant to Section 4202 of ERISA in
respect of which the Parent or any of its Subsidiaries or any of their
respective ERISA Affiliate, as applicable, is reasonably expected to be
liable;
(viii) promptly after the Parent 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 and the
Lenders will be entitled to indemnity under Section 9.04(c);
(ix) promptly after the sending or filing thereof, copies of all such
proxy statements, financial statements, and reports which the Parent 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 Parent or any Subsidiary of the
Parent 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 Parent 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, and cause its Subsidiaries to use, the proceeds
of the Advances hereunder solely to refinance maturing Debt and for
general corporate purposes, in each case, of the Parent and its
Subsidiaries other than the Utilities, and not to finance any Hostile
Acquisition.
(j) Further Assurances. At the expense of the Parent, 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 Parent will, and will cause its Subsidiaries to, 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
outstanding, the Parent 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 any
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 Parent 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 Parent or any of its Subsidiaries in the ordinary
course of business (consistent with present practices, it being understood
that for purposes of this paragraph, the purchase, construction or
maintenance of generating facilities by the Utilities shall be deemed to be
in the ordinary course of business and consistent with present practices)
to secure (1) the purchase price of such property or (2) Debt incurred
solely for the purpose of financing the acquisition, construction or
improvement of any such property to be subject to such Liens, or (B) Liens
existing on any such property at the time of acquisition, or extensions,
renewals or replacements of any of the foregoing for the same or a lesser
amount, provided that no such Lien shall extend to or cover any property
other than the property being acquired, constructed or improved and
replacements, modifications and proceeds of such property, and no such
extension, renewal or replacement shall extend to or cover any property not
theretofore subject to the Lien being extended, renewed or replaced;
(v) Liens on the capital stock of any of the Parent's single-purpose
Subsidiaries or any such Subsidiary's assets to secure the repayment of
project financing or Nonrecourse Debt for such Subsidiary;
(vi) attachment, judgment or other similar Liens arising in connection
with court proceedings, provided that the execution or other enforcement of
such Liens is effectively stayed and the claims secured thereby are being
actively contested in good faith by appropriate proceedings or the payment
of which is covered in full (subject to customary deductible amounts) by
insurance maintained with responsible insurance companies;
(vii) Liens securing obligations under agreements entered into
pursuant to the Iowa Industrial New Jobs Training Act or any similar or
successor legislation, provided that such obligations do not exceed
$1,000,000 in the aggregate at any one time outstanding;
(viii) Liens created pursuant to the Mortgage Bond Indentures;
(ix) Liens on the ownership interests in, and the assets of, any
Foreign Subsidiary to secure not more than $250 million aggregate principal
amount of Debt of any Foreign Subsidiary; provided that in the event any
such Debt is not denominated in Dollars, the calculation of the Dollar
equivalent amount of such Debt shall be made as of the date of the
incurrence of such Lien securing such Debt;
(x) Liens in favor of Citibank, N.A., as administrative agent under
the Utility Facilities to secure the obligations of the respective
Utilities under such agreements, and Liens in favor of Bank One, NA, as
administrative agent, for the benefit of the Lenders, under the Whiting
Financing to secure the obligations of Whiting Petroleum Corporation under
the Whiting Financing; and
(xi) other Liens set forth in Schedule II hereto, and any extensions
or renewals of any such Liens upon or in the same property theretofore
subject thereto.
(b) Debt. Create, incur, assume, or suffer to exist or permit the Borrower
to create, incur, assume, or suffer to exist, any Debt other than:
(A) Debt hereunder and under the other Loan Documents;
(B) unsecured Debt owing by the Parent to the Utilities; provided,
however, that the aggregate amount of all such Debt owing to any Utility at
any time shall not exceed the amount that such Utility could, in
conformance with applicable law, dividend to the Parent at such time;
further provided, however, that the foregoing shall not restrict the
Parent's ability to incur unsecured Debt owing to any Utility in connection
with the Utility Money Pool;
(C) unsecured Debt owing by the Borrower to its Subsidiaries,
including, without limitation, unsecured Debt owing to any such Subsidiary
in connection with the Non-Utility Money Pool; and
(D) other Debt of the Parent and/or the Borrower that is pari passu
with, or subordinate to, the Debt hereunder, provided that the Parent is in
compliance with Sections 2.04 and 5.02(h).
(c) Compliance with ERISA. (i) Permit, or permit any of its Subsidiaries to
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 Parent or its Subsidiary, as
applicable, has no control over the reduction or elimination of such
deficiency), (ii) terminate, or permit any of its Subsidiaries or any
ERISA Affiliate of the Parent or its Subsidiaries to terminate, any Plan
of the Parent, such Subsidiary or such ERISA Affiliate, as applicable,
so as to result in any material (in the opinion of the Majority Lenders)
liability of the Parent or any of its Subsidiaries to the PBGC, or
(iii) permit, or permit any of its Subsidiaries to 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 Parent, such Subsidiary or such ERISA Affiliate and such a
material liability to the Parent.
(d) Transactions with Affiliates. Enter into, or permit any of its
Subsidiaries to enter into, any transaction with an Affiliate of the
Parent, unless such transaction is on terms no less favorable to the
Parent 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 Parent, or such transaction has been
approved by the Securities and Exchange Commission pursuant to PUHCA.
(e) Mergers, Etc.
(i) merge with or into or consolidate with or into any other Person,
except the Parent 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 Parent is the surviving corporation
and (C) the Parent 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
Parent, (B) no event shall occur and be continuing that constitutes an
Unmatured Default or an Event of Default and (C) the Parent 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 Parent to another such Subsidiary, (ii) in connection with a sale
and leaseback transaction entered into by any Subsidiary of the Parent,
(iii) sales, leases, transfers and assignments of other assets
representing not in excess of 5% of the consolidated assets (valued at
book value) of the Parent 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 Parent and its Subsidiaries, (iv) dispositions of the
transmission assets of IPL and its Subsidiaries to TRANSlink
Transmission Company or to any other Regional Transmission Organization
authorized by the Federal Energy Regulatory Commission, (v) sale or
capital contribution of nuclear generation assets to Nuclear Management
Company LLC, (vi) sales of accounts receivable by Cogenex Corporation
and its Subsidiaries and Energy Performance Services, Inc. and (vii)
sales of accounts receivable by the Utilities pursuant to asset
securitization transactions to which one or both of the Utilities may
now or hereafter be a party; provided in each case described in clauses
(i) to (vii) above, that no Unmatured Default or Event of Default shall
have occurred and be continuing after giving effect thereto; provided
further that the Parent or any of its Subsidiaries may, pursuant to
Section 5.02(a)(ix), pledge its ownership interests in, and the assets
of, any Foreign Subsidiary to secure not more than $250 million
aggregate principal amount of Debt incurred by any Foreign Subsidiary;
provided further that in the event any such Debt is not denominated in
Dollars, the calculation of the Dollar equivalent amount of such Debt
shall be made as of the date of the pledge of assets or ownership
interests, as the case may be, securing such Debt.
(g) Maintenance of Ownership of Significant Subsidiaries. Sell, assign,
transfer, pledge or otherwise dispose of any 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. Notwithstanding the
foregoing, the Parent or any of its Subsidiaries may, pursuant to
Section 5.02(a)(ix), pledge its ownership interests in, and the assets
of, any Foreign Subsidiary to secure not more than $250 million
aggregate principal amount of Debt incurred by any Foreign Subsidiary;
provided that in the event any such Debt is not denominated in Dollars,
the calculation of the Dollar equivalent amount of such Debt shall be
made as of the date of the pledge of assets or ownership interests, as
the case may be, securing such Debt.
(h) Capitalization Ratio. Permit the ratio of Consolidated Debt of the
Parent to Consolidated Capital of the Parent to exceed .65 to 1.00.
(i) Consolidated Net Worth. Permit, at any time, its Consolidated Net Worth
to be less than $1,400,000,000.
(j) Interest Coverage Ratio. Permit, as of the last day of each fiscal
quarter of the Parent, the Interest Coverage Ratio to be less than 2.50
to 1.00.
(k) Restrictive Agreements. Directly or indirectly, enter into or permit to
exist, or permit any of its Significant Subsidiaries to enter into or
permit to exist, any agreement or other arrangement that prohibits,
restricts or imposes any condition upon the ability of any of the
Significant Subsidiaries of the Parent to declare or pay dividends;
provided that the foregoing limitations do not apply to (i) financial
covenants that require the maintenance of a minimum net worth or
compliance with financial tests as conditions to the ability to pay
dividends or make other distributions with respect to capital stock or
otherwise; (ii) restrictions that arise only if dividends on preferred
stock have not been paid; (iii) limitations or restrictions imposed by
law or in regulatory proceedings and (iv) limitations imposed pursuant
to agreements and instruments in effect on the date hereof (without
giving effect to any amendments or modifications to such limitations)
relating to Debt or Debt facilities.
(l) Synthetic Lease Restrictions. Enter into or permit any Subsidiary to
enter into a synthetic lease transaction.
(m) Capital Expenditures. Make or commit to make, or permit any of its
Subsidiaries to make or commit to make, any Capital Expenditures, except
for Capital Expenditures (when added to the aggregate amount of
investments permitted by Section 5.02(n)(v)) in an aggregate amount not
to exceed $600,000,000, provided that the amount permitted by this
--------
paragraph shall be increased by the aggregate Net Cash Proceeds
available for Capital Expenditures received by the Parent and/or its
Subsidiaries from the issuance subsequent to the date hereof of Debt
and/or Equity Interests (after deducting therefrom the amount thereof,
if any, that is required to be applied to prepay any Debt and/or reduce
any credit facility in accordance with any mandatory prepayment or
redemption provisions of Section 2.04 or of any other Debt of the Parent
or any of its Subsidiaries in existence on the date of this Agreement
that are applicable); it is agreed that for purposes of this Section
5.02(m), borrowings under any credit facility in existence on the date
hereof shall not constitute an issuance of Debt subsequent to the date
hereof except to the extent, if any, that such credit facility is
increased subsequent to the date hereof.
(n) Investments, Loans, Advances, Guarantees and Acquisitions. Purchase,
hold or acquire, or permit any of its Subsidiaries to purchase, hold or
acquire, (including pursuant to any merger with any Person that was not
a wholly owned Subsidiary prior to such merger) any Equity Interests,
evidences of Debt or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist
any loans or advances to, guarantee any obligations of, or make or
permit to exist any investment or any other interest in, any other
Person, or purchase or otherwise acquire (in one transaction or a series
of transactions) any assets of any other Person constituting a business
unit, except:
(i) Cash and Cash Equivalents;
(ii) investments by the Parent existing on the date hereof in the
Equity Interests of its Subsidiaries;
(iii) loans or advances made by the Parent to any Subsidiary and made
by any Subsidiary to the Parent or any other Subsidiary (including, without
limitation, loans and advances under the Utility Money Pool or the
Non-Utility Money Pool);
(iv) guarantees constituting Debt permitted by Section 5.02(b);
(v) investment in an aggregate principal amount not to exceed
$109,000,000 in connection with the purchase by the Parent or any of its
Subsidiaries of a 309 megawatt natural-gas-fired power plant in Neenah,
Wisconsin from Mirant Corporation; and
(vi) in connection with a transaction permitted by Section 5.2(e).
(o) Restricted Payments. At any time after the Parent Facility shall have
expired (in accordance with the terms and conditions thereof in effect
on the date hereof, without giving effect to any extensions or renewals
thereof) or been terminated and all amounts payable thereunder shall
have been paid in full, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, except (i) the Parent
may declare and pay regular quarterly dividends on shares of its issued
and outstanding common stock, (ii) the Parent may declare and pay
dividends with respect to its Equity Interests payable solely in
additional shares of its common stock and (iii) the Parent may make
Restricted Payments pursuant to and in accordance with stock option
plans or other benefit plans for management or employees of the Parent
and its Subsidiaries.
(p) Lines of Business. Engage, or permit any of its Subsidiaries to engage,
to any material extent in any business other than businesses of the type
conducted by the Parent and its Subsidiaries on the date of this
Agreement and businesses reasonably related thereto.
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 such
principal 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 Parent 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 Parent 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 subsection (c) or (d) thereof); or
(e) The Parent 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 Parent 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 Parent 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 Parent or any of its Significant 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
Parent or any of its Significant 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
Parent or any of its Significant 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 Parent or such Significant Subsidiary or the
appointment of a receiver, trustee, custodian or other similar official for
the Parent or such Significant Subsidiary or any of its property) shall
occur; or the Parent or any of its Significant Subsidiaries 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 Parent or any of its Significant
Subsidiaries (including, without limitation, the Utilities) or their
respective properties and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall be
any period of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect; or
(i) Any material provision of any Loan Document to which any of the Loan
Parties is a party shall for any reason cease to be valid and binding on such
Loan Party or such Loan Party 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 Parent or any
of its Significant Subsidiaries, 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) (i) The Parent shall cease to own 100% of the common equity interests of
either of the Utilities; (ii) any Person or "group" (within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended)
shall either (A) acquire beneficial ownership of more than 50% of any
outstanding class of common stock of the Parent having ordinary voting power
in the election of directors of the Parent or (B) obtain the power (whether
or not exercised) to elect a majority of the Parent's directors or (iii) the
Board of Directors of the Parent shall not consist of a majority of
Continuing Directors;
then, and in any such event, the Agent (i) shall at the request, or may with
the consent, of the holders of greater than 50% of the principal amount of
the Advances then outstanding or, if no Advances are then outstanding,
Lenders having greater than 50% of the Commitments, by notice to the
Borrower, declare the obligation of each Lender to make Advances, 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
GUARANTEE
SECTION 7.01....Guarantee.
(a) Each of the Guarantors hereby, jointly and severally, unconditionally
and irrevocably, guarantees to the Agent, for the ratable benefit of the
Lenders and their respective successors, indorsees, transferees and assigns,
the prompt and complete payment and performance by the Borrower when due
(whether at the stated maturity, by acceleration or otherwise) of the
Borrower Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under
the other Loan Documents shall in no event exceed the amount which can be
guaranteed by such Guarantor under applicable federal and state laws relating
to the insolvency of debtors (after giving effect to the right of
contribution established in Section 7.02).
(c) Each Guarantor agrees that the Borrower Obligations may at any time and
from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guarantee contained in this Article VII or
affecting the rights and remedies of the Agent or any Lender hereunder.
(d) The guarantee contained in this Article VII shall remain in full force
and effect until all the Borrower Obligations and the obligations of each
Guarantor under the guarantee contained in this Article VII shall have been
satisfied by payment in full and the Commitments shall be terminated,
notwithstanding that from time to time during the term of this Agreement the
Borrower may be free from any Borrower Obligations; provided that if at any
time hereafter all the Equity Interests of HPI or AEI are sold to a Person or
Persons other than the Parent or any of its Subsidiaries, such Guarantor's
obligations under this Agreement shall automatically be terminated.
(e) No payment made by the Borrower, any of the Guarantors, any other
guarantor or any other Person or received or collected by the Agent or any
Lender from the Borrower, any of the Guarantors, any other guarantor or any
other Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction of
or in payment of the Borrower Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of any Guarantor hereunder which
shall, notwithstanding any such payment (other than any payment made by such
Guarantor in respect of the Borrower Obligations or any payment received or
collected from such Guarantor in respect of the Borrower Obligations), remain
liable for the Borrower Obligations up to the maximum liability of such
Guarantor hereunder until the Borrower Obligations are paid in full and the
Commitments are terminated.
SECTION 7.02....Right of Contribution. Each of the Guarantors other than the
Parent (each, a "Subsidiary Guarantor") hereby agrees that to the extent that
a Subsidiary Guarantor shall have paid more than its proportionate share of
any payment made hereunder, such Subsidiary Guarantor shall be entitled to
seek and receive contribution from and against any other Subsidiary Guarantor
hereunder which has not paid its proportionate share of such payment. Each
Subsidiary Guarantor's right of contribution shall be subject to the terms
and conditions of Section 7.03. The provisions of this Section 7.02 shall in
no respect limit the obligations and liabilities of any Subsidiary Guarantor
to the Agent and the Lenders, and each Subsidiary Guarantor shall remain
liable to the Agent and the Lenders for the full amount guaranteed by such
Subsidiary Guarantor hereunder.
SECTION 7.03....No Subrogation. Notwithstanding any payment made by any
Guarantor hereunder or any set-off or application of funds of any Guarantor
by the Agent or any Lender, no Guarantor shall be entitled to be subrogated
to any of the rights of the Agent or any Lender against the Borrower or any
other Guarantor or any collateral security or guarantee or right of offset
held by the Agent or any Lender for the payment of the Borrower Obligations,
nor shall any Guarantor seek or be entitled to seek any contribution or
reimbursement from the Borrower or any other Guarantor in respect of payments
made by such Guarantor hereunder, until all amounts owing to the Agent and
the Lenders by the Borrower on account of the Borrower Obligations are paid
in full and the Commitments are terminated. If any amount shall be paid to
any Guarantor on account of such subrogation rights at any time when all of
the Borrower Obligations shall not have been paid in full, such amount shall
be held by such Guarantor in trust for the Agent and the Lenders, segregated
from other funds of such Guarantor, and shall, forthwith upon receipt by such
Guarantor, be turned over to the Agent in the exact form received by such
Guarantor (duly indorsed by such Guarantor to the Agent, if required), to be
applied against the Borrower Obligations, whether matured or unmatured, in
such order as the Agent may determine.
SECTION 7.04....Amendments, etc. with respect to the Borrower Obligations.
Each Guarantor shall remain obligated hereunder notwithstanding that, without
any reservation of rights against any Guarantor and without notice to or
further assent by any Guarantor, any demand for payment of any of the
Borrower Obligations made by the Agent or any Lender may be rescinded by the
Agent or such Lender and any of the Borrower Obligations continued, and the
Borrower Obligations, or the liability of any other Person upon or for any
part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Agent or any Lender in accordance with Section
9.01, and this Agreement and the other Loan Documents and any other documents
executed and delivered in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part in accordance with Section
9.01, as the Agent (or the Majority Lenders or all Lenders, as the case may
be) may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Agent or any Lender for
the payment of the Borrower Obligations may be sold, exchanged, waived,
surrendered or released. Neither the Agent nor any Lender shall have any
obligation to protect, secure, perfect or insure any Lien at any time held by
it as security for the Borrower Obligations or for the guarantee contained in
this Article VII or any property subject thereto.
SECTION 7.05....Guarantee Absolute and Unconditional. Each Guarantor waives
any and all notice of the creation, renewal, extension or accrual of any of
the Borrower Obligations and notice of or proof of reliance by the Agent or
any Lender upon the guarantee contained in this Article VII or acceptance of
the guarantee contained in this Article VII; the Borrower Obligations, and
any of them, shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon the
guarantee contained in this Article VII; and all dealings between the
Borrower and any of the Guarantors, on the one hand, and the Agent and the
Lenders, on the other hand, likewise shall be conclusively presumed to have
been had or consummated in reliance upon the guarantee contained in this
Article VII. Each Guarantor waives diligence, presentment, protest, demand
for payment and notice of default or nonpayment to or upon the Borrower or
any of the Guarantors with respect to the Borrower Obligations. Each
Guarantor understands and agrees that the guarantee contained in this Article
VII shall be construed as a continuing, absolute and unconditional guarantee
of payment without regard to (a) the validity or enforceability of this
Agreement or any other Loan Document, any of the Borrower Obligations or any
other collateral security therefor or guarantee or right of offset with
respect thereto at any time or from time to time held by the Agent or any
Lender, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted
by the Borrower or any other Person against the Agent or any Lender, or (c)
any other circumstance whatsoever (with or without notice to or knowledge of
the Borrower or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Borrower for the Borrower
Obligations, or of such Guarantor under the guarantee contained in this
Article VII, in bankruptcy or in any other instance. When making any demand
hereunder or otherwise pursuing its rights and remedies hereunder against any
Guarantor, the Agent or any Lender may, but shall be under no obligation to,
make a similar demand on or otherwise pursue such rights and remedies as it
may have against the Borrower, any other Guarantor or any other Person or
against any collateral security or guarantee for the Borrower Obligations or
any right of offset with respect thereto, and any failure by the Agent or any
Lender to make any such demand, to pursue such other rights or remedies or to
collect any payments from the Borrower, any other Guarantor or any other
Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of the Borrower, any other
Guarantor or any other Person or any such collateral security, guarantee or
right of offset, shall not relieve any Guarantor of any obligation or
liability hereunder, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the Agent or any
Lender against any Guarantor. For the purposes hereof "demand" shall include
the commencement and continuance of any legal proceedings.
SECTION 7.06....Reinstatement. The guarantee contained in this Article VII
shall continue to be effective, or be reinstated, as the case may be, if at
any time payment, or any part thereof, of any of the Borrower Obligations is
rescinded or must otherwise be restored or returned by the Agent or any
Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or any Guarantor, or upon or as a result of
the appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, the Borrower or any Guarantor or any substantial part of
its property, or otherwise, all as though such payments had not been made.
SECTION 7.07....Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Agent without set-off or counterclaim in
Dollars.
ARTICLE VIII
THE AGENT
SECTION 8.01....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 Merrill Lynch Capital Corporation accords
credit facilities similar to the credit facility hereunder for which it is
the sole lender.
SECTION 8.02....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 9.07; (ii) may consult with
legal counsel (including counsel for the Parent, the Borrower or any of their
Subsidiaries), 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 Parent, the Borrower or any of their Subsidiaries or to
inspect the property (including the books and records) of the Parent, the
Borrower or any of their Subsidiaries; (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 8.03....Agent and Affiliates. With respect to its Commitment and the
Advances made by it, Merrill Lynch Capital Corporation 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 the "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include the Agent in
its individual capacity. Merrill Lynch Capital Corporation 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 Merrill
Lynch Capital Corporation were not the Agent and without any duty to account
therefor to the Lenders.
SECTION 8.04....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 8.05....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 8.06....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 8.06. 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 VIII 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 IX
MISCELLANEOUS
SECTION 9.01....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 or 3.02,
(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 9.01 or (g) release any collateral for the Borrower
Obligations or the obligations of the Guarantors under Article VII or release
any of the Guarantors from its obligations under Article VII; 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 9.02....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; if to the
Parent, 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; if to HPI or AEI, to it in care of the Parent at the address
of the Parent set forth above; if to any Lender listed on Schedule I hereto,
at its Domestic Lending Office specified opposite its name on said Schedule;
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 4 World Financial Center - 16th Floor, New York, NY 10080,
Attention: Eve Lam / Mark Campbell; 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 VIII shall not be effective until received by the Agent.
SECTION 9.03....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 9.04....Costs, Expenses, Taxes and Indemnification.
(a) The Borrower agrees to pay on demand all costs and expenses of the Agent
and the Arranger 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 each of the Agent and the Arranger with respect thereto and
with respect to the administration of, and advising the Agent and the
Arranger as to its rights and responsibilities under, this Agreement and the
other Loan Documents. The Borrower further agrees to pay on demand all costs
and expenses, if any (including, without limitation, reasonable counsel fees
and expenses of the Agent, the Arranger 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 9.04(a). In
addition, the Borrower shall pay any and all stamp and other taxes payable or
determined to be payable in connection with the execution and delivery of
this Agreement and the other Loan Documents, and the other documents and
instruments to be delivered hereunder and thereunder, and agrees to save the
Agent, the Arranger 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, as the case may be, 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 Parent or any of its Subsidiaries 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 Parent
or any of its Affiliates or (B) by or on behalf of the Parent or any of its
Affiliates at any time and in any place.
(d) The Borrower's obligations under this Section 9.04 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 9.04 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 9.05....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) Each of the Loan Parties 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 rights of
any of the Loan Parties to any independent claim that such Loan Party 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; provided
further that the Agent shall not be liable for the conduct of any Lender.
SECTION 9.06....Binding Effect. This Agreement shall become effective when it
shall have been executed by the Borrower, each of the Guarantors and the
Agent and when the Agent shall have been notified in writing by each Lender
that such Lender has executed it and thereafter shall be binding upon and
inure to the benefit of the Borrower, each of the Guarantors, the Agent and
each Lender and their respective successors and assigns, except that neither
the Borrower nor any of the Guarantors shall have the right to assign its
rights hereunder or any interest herein without the prior written consent of
the Lenders.
SECTION 9.07....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 and/or Advance 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 $1,000,000 (except in the case of assignments between Lenders
at the time already parties hereto and between a Lender and an Affiliate of
such Lender), (iii) the Agent, the Arranger and, 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) hereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Lender Assignment; (iv) such assignee will,
independently and without reliance upon the Agent, such assigning Lender or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or not taking action under the Loan Documents; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes
the Agent to take such action as agent on its behalf and to exercise such
powers under the Loan Documents as are delegated to the Agent by the terms
thereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
(c) The Agent shall maintain at its address referred to in Section 9.02 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 9.07 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 9.07, 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 9.08, 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 or claim any additional amounts payable
pursuant to Section 2.16 or (ii) give notice to the Agent pursuant to
Section 2.13, then 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), 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 9.07 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 above and (y) the last day of the longest of the then-current
Interest Periods for such Advances. If any such Eligible Assignee designated
by the Borrower shall fail to consummate such assignment on terms acceptable
to such Lender, or if the Borrower shall fail to designate any such Eligible
Assignees for all or part of such Lender's Commitment or Advances, then such
demand by the Borrower shall become ineffective, it being understood for
purposes of this subsection (g) that such assignment shall be conclusively
deemed to be on terms acceptable to such Lender, and such Lender shall be
compelled to consummate such assignment to an Eligible Assignee designated by
the Borrower, if such Eligible Assignee (1) shall agree to such assignment by
entering into a Lender Assignment with such Lender and (2) shall offer
compensation to such Lender in an amount equal to all amounts then owing by
the Borrower to such Lender hereunder, whether for principal, interest, fees,
costs or expenses (other than the demanded payment referred to above and
payable by the Borrower as a condition to the Borrower's right to demand such
assignment), or otherwise (including amounts payable pursuant to Section
9.04(b) hereof).
(h) Anything in this Section 9.07 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 2.12 or 9.04(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 9.07(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 9.08....Confidentiality. In connection with the negotiation and
administration of this Agreement and the other Loan Documents, the Borrower
and the Guarantors have 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 or the
Guarantors, as applicable, 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 9.09....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 9.10....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 Guarantor, 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 9.11....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 9.12....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 9.13....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.
ALLIANT ENERGY RESOURCES, INC.
as Borrower
By /s/ Thomas L. Hanson
------------------------
Name: Thomas L. Hanson
Title: Vice President and Treasurer
ALLIANT ENERGY CORPORATION
as Guarantor
By /s/ Thomas L. Hanson
------------------------
Name: Thomas L. Hanson
Title: Vice President and Treasurer
HEARTLAND PROPERTIES, INC.
as Guarantor
By /s/ Ruth A. Domack
----------------------
Name: Ruth A. Domack
Title: President
ALLIANT ENERGY INTERNATIONAL, INC.
as Guarantor
By /s/ Thomas L. Hanson
------------------------
Name: Thomas L. Hanson
Title: Vice President and Treasurer
MERRILL LYNCH CAPITAL CORPORATION
as Agent and as Lender
By /s/ Anthony J. LaFare
-------------------------
Name: Anthony J. LaFare
Title: Vice President
SCHEDULE I
2
ALLIANT ENERGY CORPORATION
364-Day Credit Agreement, dated as of December 27, 2002, among
Alliant Energy Resources, Inc. as Borrower,
Alliant Energy Corporation, Heartland Properties, Inc. and Alliant Energy International, Inc.,
as Guarantors,
the Lenders named therein
and Merrill Lynch Capital Corporation, as Administrative Agent
Name of Lender Commitment Domestic Lending Office Eurodollar Lending Office
- -------------- ---------- ----------------------- -------------------------
Merrill Lynch Capital $250,000,000 4 World Financial Center - Same as Domestic Lending
Corporation 16th Floor, New York, NY Office
10080, Attention: Eve Lam /
Mark Campbell
TOTAL $250,000,000