EXHIBIT 4.1
REVOLVING CREDIT AGREEMENT
Dated as of August 6, 1997
WICOR, INC., a Wisconsin corporation (the "Borrower"),
CITIBANK, N.A., and the other banks named on the signature
pages hereof (the "Banks"), and CITIBANK, N.A. ("Citibank"),
as administrative agent (the "Agent") for the Lenders
hereunder, hereby agree as follows:
I. ARTICLE
DEFINITIONS AND ACCOUNTING TERMS
A. SECTION 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):
"A Advance" means an advance by a Lender to the
Borrower as part of an A Borrowing and refers to a Base
Rate Advance or a Eurodollar Rate Advance, each of
which shall be a "Type" of A Advance.
"A Borrowing" means a borrowing consisting of
simultaneous A Advances of the same Type made by each
of the Lenders pursuant to Section 2.01.
"A Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially
the form of Exhibit A-1 hereto, evidencing the
aggregate indebtedness of the Borrower to such Lender
resulting from the A Advances made by such Lender.
"Advance" means an A Advance or a B Advance.
"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.
"Agent" has the meaning set forth in the preamble
to this Agreement.
"Agreement" means this Revolving Credit Agreement,
as the same may be amended or otherwise modified from
time to time.
"Applicable Fee Percentage" means, at all times
during which any Pricing Level set forth below is in
effect, the percentage set forth below next to such
Pricing Level:
Pricing Level Applicable Fee Percentage
Pricing Level I 0.10%
Pricing Level II 0.15%
Pricing Level III 0.20%
Pricing Level IV 0.30%
A change in the Applicable Fee Percentage resulting
from a change in the Pricing Level shall become
effective upon the date of delivery to the Lenders of
the certificate of the chief financial officer of the
Borrower required by Section 5.01(g)(i) or (ii), as the
case may be. During the period commencing on the date
of the Closing and ending on the first date of delivery
to the Lenders of such certificate, the applicable
Pricing Level shall conclusively be deemed to be
Pricing Level I.
"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 and, in the case of a B Advance, the
office of such Lender notified by such Lender to the
Agent as its Applicable Lending Office with respect to
such B Advance.
"Applicable Margin" means, on any date of
determination (i) for a Base Rate Advance, 0.00% per
annum, and (ii) for a Eurodollar Rate Advance, at all
times during which any Pricing Level set forth below is
in effect, a rate per annum equal to the percentage set
forth below next to such Pricing Level:
Pricing Level Applicable Margin
Pricing Level I 0.20%
Pricing Level II 0.25%
Pricing Level III 0.30%
Pricing Level IV 0.55%
A change in the Applicable Margin resulting from a
change in the Pricing Level shall become effective upon
the date of delivery to the Lenders of the certificate
of the chief financial officer of the Borrower required
by Section 5.01(g)(i) or (ii), as the case may be.
During the period commencing on the date of the Closing
and ending on the first date of delivery to the Lenders
of such certificate, the applicable Pricing Level shall
conclusively be deemed to be Pricing Level I.
Notwithstanding the foregoing, upon the occurrence
and during the continuance of any Event of Default, the
Applicable Margin with respect to Base Rate Advances
and Eurodollar Rate Advances shall be increased by 2%
per annum.
"Applicable Rate" means:
a) in the case of each Base Rate Advance, a rate
per annum equal at all times to the sum of the Base Rate in
effect from time to time plus the Applicable Margin in
effect from time to time; and
a) in the case of each Eurodollar Rate Advance
comprising part of the same A Borrowing, a rate per annum
during each Interest Period equal at all times to the sum of
the Eurodollar Rate for such Interest Period plus the
Applicable Margin in effect from time to time during such
Interest Period.
"Assignment and Acceptance" means an assignment
and acceptance entered into by a Lender and an assignee
of such Lender, and accepted by the Agent, in
substantially the form of Exhibit C hereto.
"B Advance" means an advance by a Lender to the
Borrower as part of a B Borrowing resulting from the
auction bidding procedure described in Section 2.03.
"B Borrowing" means a borrowing consisting of
simultaneous B Advances from each of the Lenders whose
offer to make one or more B Advances as part of such
borrowing has been accepted by the Borrower under the
auction bidding procedure described in Section 2.03.
"B Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially
the form of Exhibit A-2 hereto, evidencing the
indebtedness of the Borrower to such Lender resulting
from a B Advance made by such Lender.
"B Reduction" has the meaning specified in Section
2.01.
"Banks" has the meaning set forth in the preamble
to this Agreement.
"Base Rate" means, for any period, 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:
1. the rate of interest announced
publicly by Citibank in New York, New York, from time to
time, as Citibank's base rate; and
1. 1/2 of one percent per annum above the
Federal Funds Rate.
Each change in the Base Rate shall take effect
concurrently with any change in such base rate or the
Federal Funds Rate.
"Base Rate Advance" means an A Advance which bears
interest as provided in Section 2.07(a).
"Borrower" has the meaning set forth in the
preamble to this Agreement.
"Borrower's Account" means bank account no. 0025-
2360 maintained by the Borrower with M&I Marshall &
Ilsley Bank (ABA No. 0750-0005-1), or such other bank
account as may be designated by the Borrower in a
written notice to the Agent and the Lenders.
"Borrowing" means an A Borrowing or a B Borrowing.
Any A Borrowing consisting of A Advances of a
particular Type may be referred to as being an A
Borrowing of such "Type".
"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 Advances, on which dealings in
U.S. dollar deposits are carried on in the London
interbank market.
"Citibank" has the meaning set forth in the
preamble to this Agreement.
"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 August 6, 1997, at the offices of King & Spalding,
120 West 45th Street, New York, New York 10036, at
10:00 A.M., or such later Business Day as the parties
hereto may mutually agree.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"Commitment" has the meaning specified in Section
2.01.
"Consolidated Debt" means, at any date of
determination, the aggregate amount of all Funded Debt
and Current Debt of the Borrower and its Consolidated
Subsidiaries as determined on such date on a
consolidated basis eliminating intercompany items.
"Consolidated Subsidiary" means any Subsidiary of
the Borrower whose accounts are or are required to be
consolidated with the accounts of the Borrower in
accordance with generally accepted accounting
principles.
"Convert", "Conversion" and "Converted" each
refers to a conversion of A Advances of one Type into A
Advances of another Type or the selection of a new, or
the renewal of the same, Interest Period for Eurodollar
Rate Advances pursuant to Section 2.09 or 2.10.
"Current Debt" means, for any Person at any date
of determination, all indebtedness of such Person of
the type described in clauses (i) through (vii) of the
definition of Indebtedness, other than Funded Debt, as
of such date.
"Domestic Lending Office" means, with respect to
any Lender, the office of such Lender specified as its
"Domestic Lending Office" opposite its name on Schedule
I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender, or such other office of
such Lender as such Lender may from time to time
specify to the Borrower and the Agent.
"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 any Person which for
purposes of Title IV of ERISA is a member of the
Borrower's controlled group, or under common control
with the Borrower, within the meaning of Section 414 of
the Code, and the regulations promulgated and rulings
issued thereunder.
"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 a 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
4068(f) of ERISA; (iv) the withdrawal by the Borrower
or an ERISA Affiliate from a Multiple Employer Plan
during a plan year for which it was a "substantial
employer", as defined in Section 4001(a)(2) of ERISA;
(v) the failure by the Borrower or any ERISA Affiliate
to make a payment to a Plan required under Section
302(f)(1) of ERISA, which Section imposes 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 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 of such Lender specified as its
"Eurodollar Lending Office"opposite its name on
Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender (or, if no such
office is specified, its Domestic Lending Office), or
such other office of such Lender as such Lender may
from time to time specify to the Borrower and the
Agent.
"Eurodollar Rate" means, for each Interest Period
for each Eurodollar Rate Advance made as part of the
same A Borrowing, an interest rate per annum equal to
the average (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is
not such a multiple) of the rate per annum at which
deposits in U.S. dollars are offered by the principal
office of each of the Reference Banks in London,
England to prime banks in the London interbank market
at 11:00 A.M. (London time) two Business Days before
the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurodollar
Rate Advance made as part of such A Borrowing and for a
period equal to such Interest Period; provided,
however, that if a Reference Bank does not offer such
deposits, the Eurodollar Rate determined by such
Reference Bank shall be based on the rate per annum at
which deposits are offered to the principal office of
such Reference Bank in the interbank market in which
such Reference Bank customarily conducts its trading
activities in eurodollars. The Eurodollar Rate for the
Interest Period for each Eurodollar Rate Advance made
as part of the same A Borrowing shall be determined by
the Agent on the basis of applicable rates furnished to
and received by the Agent from the Reference Banks two
Business Days before the first day of such Interest
Period, subject, however, to the provisions of Section
2.09.
"Eurodollar Rate Advance" means an A Advance which
bears interest as provided in Section 2.07(b).
"Eurodollar Rate 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.
"Event of Default" has the meaning specified 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" has the meaning specified in Section
2.04(b).
"Funded Debt" means, for any Person at any date of
determination, all Indebtedness of such Person which
(i) matures more than one year from the date of its
creation, (ii) matures within one year from the date of
its creation but is renewable or extendible, at the
option of the debtor, to a date more than one year from
the date of its creation or (iii) arises under a
revolving credit or similar agreement which obligates
the lender or lenders to extend credit during a period
of more than one year from the date of its creation,
including, without limitation, all amounts of Funded
Debt of such Person required to be paid or prepaid
within one year from the date of determination;
provided, however, that any Indebtedness of the type
described in clauses (ii) and (iii) above shall
constitute Funded Debt only to the extent that such
Person classifies such Indebtedness as long-term debt
on its consolidated balance sheet.
"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 required in
connection with the execution, delivery or performance
of this Agreement or any Note.
"Hazardous Materials" means any flammable
materials, explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic
substances, or related or similar materials, asbestos
or any material containing asbestos, or any other
substance or material as so defined and regulated by
any Federal, state or local environmental law,
ordinance, rule, or regulation including, without
limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42
U.S.C. Sections 9601, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Sections
1801, et seq.), and the Resource Conservation and
Recovery Act (42 U.S.C. Sections 6901, et seq.), and
the regulations adopted and publications promulgated
pursuant thereto.
"Indebtedness" means, for any Person, all
obligations of such Person which in accordance with
generally accepted accounting principles should be
classified on a balance sheet of such Person as
liabilities of such Person, and in any event shall
include, without duplication, all (i) indebtedness for
borrowed money, (ii) obligations evidenced by bonds,
debentures, notes or other similar instruments,
(iii) obligations to pay the deferred purchase price of
property or services, (iv) obligations as lessee under
leases which shall have been or should be, in
accordance with generally accepted accounting
principles, recorded as capital leases, (v) obligations
(contingent or otherwise) in respect of outstanding
letters of credit, (vi) indebtedness of the type
referred to in clauses (i) through (v) above, secured
by (or for which the holder of such indebtedness has an
existing right, contingent or otherwise, to be secured
by) any lien or encumbrance on, or security interest
in, property (including, without limitation, accounts
and contract rights) owned by such Person, even though
such Person has not assumed or become liable for the
payment of such indebtedness, and (vii) obligations
under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or
otherwise acquire, or otherwise to assure a creditor
against loss in respect of, indebtedness or obligations
of others of the kinds referred to in clauses (i)
through (v) above. For the purpose of computing the
Indebtedness of any Person, there shall be excluded any
particular Indebtedness to the extent that, upon or
prior to the maturity thereof, there shall have been
deposited with the proper depositary in trust the
necessary funds (or evidences of such Indebtedness, if
permitted by the instrument creating such Indebtedness)
for the payment, redemption or satisfaction of such
Indebtedness; and thereafter such funds and evidences
of Indebtedness so deposited shall not be included in
any computation of the assets of such Person. For all
purposes of this Agreement the preferred stock of the
Borrower, if any, shall be treated as capital stock and
not Indebtedness of the Borrower.
"Indemnified Person" has the meaning specified in
Section 8.04(c).
"Insufficiency" means, with respect to any Plan,
the amount, if any, of its unfunded benefit
liabilities, as defined in Section 4001(a)(18) of
ERISA.
"Interest Period" means, for each Eurodollar Rate
Advance made as part of the same A Borrowing, the
period commencing on the date of such Eurodollar Rate
Advance or the date of the Conversion of any A Advance
into 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 or, if available, 9
or 12 months, as the Borrower may, upon notice received
by the Agent not later than 10:00 A.M. on the third
Business Day prior to the first day of such Interest
Period, select; provided, however, that:
a) the Borrower may not select any
Interest Period that ends after the Termination Date;
a) Interest Periods commencing on the
same date for Eurodollar Rate Advances comprising part of
the same A Borrowing shall be of the same duration;
a) 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, 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; and
a) if any Interest Period begins on a day for
which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such
Interest Period shall end on the last Business Day of such
calendar month.
"Lenders" means the Banks and each assignee that
shall become a party hereto pursuant to Section 8.07.
"Leverage Ratio" means, as of any date, the ratio
of Consolidated Debt to Total Capitalization.
"Majority Lenders" means, on any date of
determination, Lenders that, collectively, on such date
(i) hold at least 66 % of the then aggregate unpaid
principal amount of the A Advances owing to Lenders and
(ii) if no A Advances are then outstanding, have
Percentages in the aggregate of at least 66 %. 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.
"Multiemployer Plan" means a multiemployer plan,
as defined in Section 4001(a)(3) of ERISA, which is
subject to Title IV of ERISA and to which the Borrower
or any ERISA Affiliate 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 Borrower or an ERISA
Affiliate and at least one Person other than the
Borrower and its ERISA Affiliates or (ii) was so
maintained and in respect of which the Borrower or an
ERISA Affiliate could have liability under Section 4064
or 4069 of ERISA in the event such plan has been or
were to be terminated.
"1993 Credit Facility" means that certain
Revolving Credit Agreement, dated as of March 29, 1993,
as amended, among the Borrower, the lenders named
therein, and Citibank, as agent for said lenders.
"Note" means an A Note or a B Note.
"Notice of A Borrowing" has the meaning specified
in Section 2.02(a).
"Notice of B Borrowing" has the meaning specified
in Section 2.03(a).
"Notice of Conversion" has the meaning assigned to
that term in Section 2.10.
"Operating Entity" means any business or operating
unit of a Person which is or could be operated
separately and apart from the other businesses and
operations of such Person or any other line of business
or business segment.
"Other Taxes" has the meaning specified in Section
2.15 (b).
"PBGC" means the Pension Benefit Guaranty
Corporation (or any successor entity) established under
ERISA.
"Percentage" means, for any Lender on any date of
determination, the percentage obtained by dividing such
Lender's Commitment on such day by the total of the
Commitments on such date.
"Person" means an individual, partnership,
corporation (including a business trust), 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.
"Pricing Level" means Pricing Level I, Pricing
Level II, Pricing Level III, or Pricing Level IV, as
applicable.
"Pricing Level I" means the applicable Pricing
Level at any time when the Leverage Ratio is less than
or equal to 0.45 to 1.00.
"Pricing Level II" means the applicable Pricing
Level at any time when the Leverage Ratio is greater
than 0.45 to 1.00 and less than 0.50 to 1.00.
"Pricing Level III" means the applicable Pricing
Level at any time when the Leverage Ratio is greater
than or equal to 0.50 to 1.00 and less than 0.55 to
1.00.
"Pricing Level IV" means the applicable Pricing
Level at any time when the Leverage Ratio is greater
than or equal to 0.55 to 1.00.
"Reference Banks" means M&I Marshall & Ilsley Bank
and Citibank.
"Register" has the meaning specified in Section
8.07(c).
"Significant Subsidiary" means each Subsidiary of
the Borrower with annual revenue in excess of
$40,000,000 and assets valued in excess of $20,000,000
at any date of determination.
"Single Employer Plan" means a single employer
plan, as defined in Section 4001(a)(15) of ERISA, which
is subject to Title IV of ERISA and which (i) is
maintained for employees of the Borrower or an ERISA
Affiliate and no Person other than the Borrower and its
ERISA Affiliates or (ii) was so maintained and in
respect of which the Borrower or an ERISA Affiliate
could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"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 of more other
Subsidiaries). In the case of an unincorporated
entity, a Person shall be deemed to have more than 50%
of interests having ordinary voting power only if such
Person's vote in respect of such interests comprises
more than 50% of the total voting power of all such
interests in the unincorporated entity.
"Taxes" has the meaning specified in Section 2.15
(a).
"Termination Date" means the earlier to occur of
(i) the fifth anniversary of the date of this
Agreement, and (ii) the date of termination or
reduction in whole of the Commitments pursuant to
Section 2.05 or 6.01.
"Total Capitalization" means, at any date of
determination, the sum of (a) Consolidated Debt, (b)
consolidated equity of the common stockholders of the
Borrower and the Consolidated Subsidiaries, (c)
consolidated equity of the preference stockholders of
the Borrower and the Consolidated Subsidiaries and (d)
consolidated equity of the preferred stockholders of
the Borrower and the Consolidated Subsidiaries, in each
case determined at such date in accordance with
generally accepted accounting principles.
"Type" has the meaning assigned to that term
(i) in the definition of "A 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.
"WGC Credit Agreement" means that certain
Revolving Credit Agreement, dated as of the date
hereof, among Wisconsin Gas, the banks party thereto,
and Citibank, as agent thereunder, as amended, modified
or supplemented from time to time in accordance with
its terms.
"WICOR Industries" means WICOR Industries, Inc., a
Wisconsin corporation, all of whose common stock is
owned on the date hereof by the Borrower.
"WII Credit Agreement" means that certain
Revolving Credit Agreement, dated as of the date
hereof, among WICOR Industries, the banks party
thereto, and Citibank, as agent thereunder, as amended,
modified or supplemented from time to time in
accordance with its terms.
"Wisconsin Gas" means Wisconsin Gas Company, a
Wisconsin corporation, all of whose common stock is
owned on the date hereof by the Borrower.
A. SECTION Computation of Time Periods. Unless
otherwise indicated, each reference in this Agreement to a
specific time of day is a reference to New York City time.
In the computation of periods of time under this Agreement,
any period of a specified number of days or months shall be
computed by including the first day or month occurring
during such period and excluding the last such day or month.
In the case of a period of time "from" a specified date "to"
or "until" a later specified date, the word "from" means
"from and including" and the words "to" and "until" each
means "to but excluding".
A. SECTION Accounting Terms. All accounting terms
not specifically defined herein shall be construed in
accordance with generally accepted accounting principles
consistent with those applied in the preparation of the
audited financial statements referred to in Section 4.01(e).
A. SECTION 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 Borrowings to be made on such date and the application
of the proceeds thereof.
I. ARTICLE
AMOUNTS AND TERMS OF THE ADVANCES
A. SECTION The A Advances. Each Lender severally
agrees, on the terms and conditions hereinafter set forth,
to make A Advances to the Borrower from time to time on any
Business Day during the period from the date hereof until
the Termination Date in an aggregate amount not to exceed at
any time outstanding the amount set opposite such Lender's
name on the signature pages hereof or, if such Lender has
entered into any Assignment and Acceptance, set forth for
such Lender in the Register maintained by the Agent pursuant
to Section 8.07(c), as such amount may be reduced pursuant
to Section 2.05 (such Lender's "Commitment"), provided that
the aggregate amount of the Commitments of the Lenders shall
be deemed used from time to time to the extent of the
aggregate amount of the B Advances then outstanding and such
deemed use of the aggregate amount of the Commitments shall
be applied to the Lenders ratably according to their
respective Commitments (such deemed use of the aggregate
amount of the Commitments being a "B Reduction"). Each A
Borrowing shall consist of A Advances of the same Type made
on the same day by the Lenders ratably according to their
respective Commitments. Each A Borrowing consisting of
Eurodollar Rate Advances shall be in an aggregate amount not
less than $5,000,000 or an integral multiple of $1,000,000
in excess thereof. Each A Borrowing consisting of Base Rate
Advances shall be in an aggregate amount not less than
$500,000 or an integral multiple of $500,000 in excess
thereof. Within the limits of each Lender's Commitment, the
Borrower may from time to time borrow, prepay pursuant to
Section 2.11(b) and reborrow under this Section 2.01.
1. SECTION Making the A Advances. Each A
Borrowing shall be made on notice by the Borrower to the
Agent, given not later than 10:00 A.M. (i) in the case of an
A Borrowing comprised of Base Rate Advances, on the date of
the proposed A Borrowing, and (ii) in the case of an A
Borrowing comprised of Eurodollar Rate Advances, three
Business Days prior to the date of the proposed A Borrowing.
The Agent shall give to each Lender prompt notice of each
proposed A Borrowing by telecopier, telex or cable. Each
such notice from the Borrower of an A Borrowing (a "Notice
of A Borrowing") shall be by telecopier, telex or cable, in
substantially the form of Exhibit B-1 hereto, specifying
therein the requested (A) date of such A Borrowing, (B) Type
of A Advances comprising such A Borrowing, (C) aggregate
amount of such A Borrowing, and (D) in the case of an A
Borrowing comprised of Eurodollar Rate Advances, initial
Interest Period for each such A Advance. Upon fulfillment
of the applicable conditions set forth in Article III, each
Lender shall, before 12:00 Noon on the date of such A
Borrowing, make available for the account of its Applicable
Lending Office to the Borrower, at the Borrower's Account,
in same day funds, such Lender's Percentage of such A
Borrowing.
1. Each Notice of A Borrowing shall be
irrevocable and binding on the Borrower. In the case of any
A Borrowing which the related Notice of A 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 A Borrowing for such A Borrowing the applicable
conditions set forth in Article III, or as a result of such
A Borrowing not being completed on the proposed date thereof
because of a reason attributable to the Borrower, including,
without limitation, any loss (including loss of anticipated
profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the A Advance to be made by
such Lender as part of such A Borrowing when such A Advance,
as a result of such failure, is not made on such date.
1. The failure of any Lender to make the A
Advance to be made by it as part of any A Borrowing shall
not relieve any other Lender of its obligation, if any,
hereunder to make its A Advance on the date of such A
Borrowing, but no Lender shall be responsible for the
failure of any other Lender to make the A Advance to be made
by such other Lender on the date of any A Borrowing.
1. SECTION The B Advances. Each Lender severally
agrees that the Borrower may request B Borrowings under this
Section 2.03 from time to time on any Business Day during
the period from the date hereof until the Termination Date
in the manner, and subject to the terms and conditions, set
forth below; provided that, following the making of each B
Borrowing, the aggregate amount of the Advances then
outstanding shall not exceed the aggregate amount of the
Commitments of the Lenders (computed without regard to any B
Reduction).
a) The Borrower may request a B Borrowing under
this Section 2.03 by delivering to the Agent, by telecopier,
telex or cable, a notice of a B Borrowing (a "Notice of B
Borrowing"), in substantially the form of Exhibit B-2
hereto, specifying the date and aggregate amount of the
proposed B Borrowing, the maturity date for repayment of
each B Advance to be made as part of such B Borrowing (which
maturity date may not be earlier than the date occurring 30
days after the date of such B Borrowing nor later than the
earlier to occur of the then scheduled Termination Date and
the date occurring 360 days following the date of such B
Borrowing), the interest payment date or dates relating
thereto, the basis upon which rates of interest are to be
determined, and any other terms to be applicable to such B
Borrowing, not later than 11:00 A.M. (A) at least two
Business Days prior to the date of the proposed B Borrowing,
if the Borrower shall specify in the Notice of B Borrowing
that the rates of interest to be offered by the Lenders
shall be fixed rates per annum and (B) at least four
Business Days prior to the date of the proposed B Borrowing,
if the Borrower shall instead specify in the Notice of B
Borrowing the basis to be used by the Lenders in determining
the rates of interest to be offered by them. The Agent
shall in turn promptly notify each Lender of each request
for a B Borrowing received by it from the Borrower by
sending such Lender a copy of the related Notice of B
Borrowing.
b) Each Lender may, if, in its sole discretion,
it elects to do so, irrevocably offer to make one or more B
Advances to the Borrower as part of such proposed B
Borrowing at a rate or rates of interest specified by such
Lender in its sole discretion, by notifying the Agent (which
shall give prompt notice thereof to the Borrower), before
11:00 A.M. (A) on the date of such proposed B Borrowing, in
the case of a Notice of B Borrowing delivered pursuant to
clause (A) of paragraph (i) above, and (B) three Business
Days before the date of such proposed B Borrowing, in the
case of a Notice of B Borrowing delivered pursuant to clause
(B) of paragraph (i) above, of the minimum amount and
maximum amount of each B Advance which such Lender would be
willing to make as part of such proposed B Borrowing (which
amounts may, subject to the proviso to the first sentence of
this Section 2.03(a), exceed such Lender's Commitment), the
rate or rates of interest therefor and such Lender's
Applicable Lending Office with respect to such B Advance;
provided that if the Agent in its capacity as a Lender
shall, in its sole discretion, elect to make any such offer,
it shall notify the Borrower of such offer before 10:00 A.M.
on the date on which notice of such election is to be given
to the Agent by the other Lenders. If any Lender shall
elect not to make such an offer, such Lender shall so notify
the Agent before 11:00 A.M. on the date on which notice of
such election is to be given to the Agent by the other
Lenders, and such Lender shall not be obligated to, and
shall not, make any B Advance as part of such B Borrowing;
provided that the failure by any Lender to give such notice
shall not cause such Lender to be obligated to make any B
Advance as part of such proposed B Borrowing.
a) The Borrower shall, in turn, (A) before 12:00
Noon on the date of such proposed B Borrowing, in the case
of a Notice of B Borrowing delivered pursuant to clause (A)
of paragraph (i) above, and (B) before 1:00 P.M. three
Business Days before the date of such proposed B Borrowing,
in the case of a Notice of B Borrowing delivered pursuant to
clause (B) of paragraph (i) above, either
(x) cancel such B Borrowing by either
giving the Agent notice to that effect or failing
to accept one or more offers as provided in clause
(y) below, or
(y) accept one or more of the
offers made by any Lender or Lenders pursuant to
paragraph (ii) above in its sole discretion, but
based exclusively upon the rate or rates of
interest offered by a Lender or the Lenders in
order of the lowest to the highest rates, by
giving written notice to the Agent of the amount
of each B Advance to be made by each Lender as
part of such B Borrowing, and reject any remaining
offers made by Lenders pursuant to paragraph (ii)
above by giving the Agent written notice to that
effect. The amount of the B Advance to be made by
each Lender shall be equal to or greater than the
minimum amount, and equal to or less than the
maximum amount, notified to the Borrower by the
Agent on behalf of such Lender for such B Advance
pursuant to paragraph (ii) above and the aggregate
of the B Advances to be made by all Lenders shall
not exceed the aggregate amount of the proposed B
Borrowing specified by the Borrower pursuant to
paragraph (i) above. If the Borrower accepts
offers made by two or more Lenders that offered to
make B Advances at the same rate of interest, the
amount of the B Borrowing to be made at such rate
of interest shall be allocated among such Lenders
in proportion to the amount of B Advances that
each such Lender offered to make at such rate.
a) If the Borrower cancels such B Borrowing
pursuant to paragraph (iii)(x) above, the Agent shall give
prompt notice thereof to the Lenders and such B Borrowing
shall not be made.
a) If the Borrower accepts one or more of the
offers made by any Lender or Lenders pursuant to paragraph
(iii)(y) above, such acceptance shall be irrevocable and
binding on the Borrower and, subject to the satisfaction of
the applicable conditions set forth in Article III, on such
Lender or Lenders. The Borrower shall indemnify each such
Lender against any loss, cost or expense actually incurred
by such Lender as a result of any failure to fulfill, on or
before the date specified in the notice provided pursuant to
paragraph (vi)(A) below, the applicable conditions set forth
in Article III, or as a result of such B Borrowing not being
completed on such date because of a reason attributable to
the Borrower, 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 B Advance to be made by such Lender as
part of such B Borrowing when such B Advance, as a result of
such failure, is not made on such date.
a) If the Borrower accepts one or more of the
offers made by any Lender or Lenders pursuant to paragraph
(iii)(y) above, the Agent shall in turn promptly notify (A)
each Lender that has made an offer as described in paragraph
(ii) above of the date and aggregate amount of such B
Borrowing and whether or not any offer or offers made by
such Lender pursuant to paragraph (ii) above have been
accepted by the Borrower, (B) each Lender that is to make a
B Advance as part of such B Borrowing of the amount of the B
Advance to be made by such Lender as part of such B
Borrowing, and (C) each Lender that is to make a B Advance
as part of such B Borrowing, upon receipt, that the Agent
has received forms of documents appearing to fulfill the
applicable conditions set forth in Article III. Upon
fulfillment of the applicable conditions set forth in
Article III, each Lender that is to make a B Advance as part
of such B Borrowing shall, before 1:00 P.M. on the date of
such B Borrowing specified in the notice received from the
Agent pursuant to clause (A) of the preceding sentence or
any later time when such Lender shall have received notice
from the Agent pursuant to clause (C) of the preceding
sentence, make available for the account of its Applicable
Lending Office to the Borrower, at the Borrower's Account,
such Lender's portion of such B Borrowing, in same day
funds. Promptly after each B Borrowing the Agent will
notify each Lender of the amount of the B Borrowing, the
consequent B Reduction and the dates upon which such B
Reduction commenced and will terminate.
1. Following the making of each B Borrowing, the
Borrower shall be in compliance with the limitation set
forth in the proviso to the first sentence of subsection (a)
above.
1. Within the limits and on the conditions set
forth in this Section 2.03, the Borrower may from time to
time borrow under this Section 2.03, repay pursuant to
subsection (d) below, and reborrow under this Section 2.03,
provided that a B Borrowing shall not be made within three
Business Days of the date of any other B Borrowing.
1. The Borrower shall repay to each Lender which
has made a B Advance, or each other holder of a B Note, on
the maturity date of each B Advance (such maturity date
being that specified by the Borrower for repayment of such B
Advance in the related Notice of B Borrowing delivered
pursuant to subsection (a)(i) above, and provided in the B
Note evidencing such B Advance), the then unpaid principal
amount of such B Advance. Such repayment shall be made to
such account of such Lender as may be specified in the B
Note evidencing such B Advance, or such other account as may
be specified from time to time by such Lender in a notice to
the Borrower and the Agent. The Borrower shall have no
right to prepay any principal amount of any B Advance.
1. The Borrower shall pay interest on the unpaid
principal amount of each B Advance from the date of such B
Advance to the date the principal amount of such B Advance
is repaid in full, at the rate of interest for such B
Advance specified by the Lender making such B Advance in its
notice with respect thereto delivered pursuant to subsection
(a)(ii) above, payable on the interest payment date or dates
specified by the Borrower for such B Advance in the related
Notice of B Borrowing delivered pursuant to subsection
(a)(i) above as provided in the B Note evidencing such B
Advance.
1. The indebtedness of the Borrower resulting
from each B Advance made to the Borrower as part of a B
Borrowing shall be evidenced by a separate B Note of the
Borrower payable to the order of the Lender making such B
Advance.
1. SECTION Fees. The Borrower agrees to pay to
the Agent for the account of each Lender a facility fee
based on such Lender's Commitment (determined without giving
effect to any B Reduction or Borrowing) from the date
hereof, in the case of each Bank, and from the effective
date specified in the Assignment and Acceptance pursuant to
which it became a Lender, in the case of each other Lender,
until the Termination Date, payable quarterly in arrears on
the last day of each March, June, September and December
during the term of such Lender's Commitment, commencing
September 30, 1997, and on the Termination Date, at a rate
per annum equal to the Applicable Fee Percentage.
1. In addition to the fees provided for in
subsection (a) above, the Borrower shall pay to the Agent,
for the account of the Agent, such fees as are provided for
in the separate fee letter, dated July 9, 1997, between the
Borrower and the Agent (the "Fee Letter").
1. SECTION Reduction of the Commitments. The
Borrower shall have the right, upon at least five Business
Days' notice to the Agent, to terminate in whole or reduce
ratably in part the unused portions of the respective
Commitments of the Lenders, provided that the aggregate
amount of the Commitments of the Lenders shall not be
reduced to an amount which is less than the aggregate
principal amount of the B Advances then outstanding; and
provided, further, that each partial reduction shall be in
an aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof.
1. On the Termination Date, the Commitments of
the Lenders shall be reduced to zero.
A. SECTION Repayment of A Advances. The Borrower
shall repay the principal amount of each A Advance made by
each Lender in accordance with the A Note to the order of
such Lender.
A. SECTION Interest on A Advances. The Borrower
shall pay interest on the unpaid principal amount of each A
Advance owing to each Lender from the date of such A Advance
until such principal amount shall be paid in full, at the
Applicable Rate for such A Advance (except as otherwise
provided in this Section 2.07), payable as follows:
1. Base Rate Advances. If such A 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 otherwise shall be
paid in full.
1. Eurodollar Rate Advances. If such A Advance
is a Eurodollar Rate Advance, interest thereon shall be
payable on the last day of the Interest Period for such A
Advance and, if such Interest Period has a duration of more
than three months, on each day which occurs during such
Interest Period every three months from the first day of
such Interest Period.
A. SECTION Additional Interest on Eurodollar Rate
Advances. The Borrower shall pay to each Lender, so long as
such Lender shall be required under regulations of the Board
of Governors of the Federal Reserve System to maintain
reserves with respect to liabilities or assets consisting of
or including Eurocurrency Liabilities, additional interest
on the unpaid principal amount of each Eurodollar Rate
Advance of such Lender, from the date of such A 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 A Advance from (ii) the rate obtained by
dividing such Eurodollar Rate by a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage of such Lender
for such Interest Period, payable on each date on which
interest is payable on such A Advance. Such additional
interest shall be determined by such Lender and notified to
the Borrower through the Agent. If requested by the
Borrower, the Lender requesting such additional interest
shall provide a brief summary of the manner in which such
additional interest was determined, provided that the
failure to deliver such summary or, absent manifest error,
the contents of such summary shall not affect the obligation
of the Borrower to pay such additional interest.
1. SECTION Interest Rate Determination. Each
Reference Bank agrees to furnish to the Agent timely
information for the purpose of determining each Eurodollar
Rate. If any Reference Bank shall not furnish such timely
information to the Agent for the purpose of determining any
such interest rate, the Agent shall determine such interest
rate on the basis of timely information furnished by the
remaining Reference Bank or Reference Banks.
1. The Agent shall give prompt notice to the
Borrower and the Lenders of the applicable interest rate
determined by the Agent for purposes of Section 2.07(a) or
(b).
1. If, with respect to any Eurodollar Rate
Advances, (i) 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 or
(ii) the Reference Banks notify the Agent that adequate and
fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of
Eurodollar Rate, the Agent shall forthwith so notify the
Borrower and the Lenders, whereupon
(1) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance, and
(1) the obligation of the Lenders to make, or to
Convert A 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.
1. (i) If the Borrower shall fail to (A) select
the duration of any Interest Period for any Eurodollar Rate
Advances in accordance with the provisions contained in the
definition of "Interest Period" in Section 1.01, or
(B) provide a Notice of Conversion with respect to any
Eurodollar Rate Advances on or prior to 11:00 A.M. on the
third Business Day prior to the last day of the Interest
Period applicable thereto, in the case of a Conversion to or
in respect of Eurodollar Rate Advances, or (ii) an Event of
Default shall have occurred and be continuing on the third
Business Day prior to the last day of the Interest Period
with respect to any Eurodollar Advance, the Agent will
forthwith so notify the Borrower and the Lenders and such
Advances will automatically, on the last day of the then
existing Interest Period therefor, Convert into Base Rate
Advances.
1. On the date on which the aggregate unpaid
principal amount of A Advances comprising any A Borrowing
shall be reduced, by payment or prepayment or otherwise, to
less than $5,000,000, such A 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 A
Advances into Advances of a Type other than Base Rate
Advances shall terminate; provided, however, that if and so
long as each such A Advance shall be of the same Type and
have the same Interest Period as A Advances comprising
another A Borrowing or other A Borrowings, and the aggregate
unpaid principal amount of all such A Advances shall equal
or exceed $5,000,000, the Borrower shall have the right to
continue all such A Advances as, or to Convert all such A
Advances into, Advances of such Type having such Interest
Period.
A. SECTION Voluntary Conversion of A Advances. The
Borrower may on any Business Day, by delivering a Notice of
Conversion (a "Notice of Conversion") to the Agent not later
than 11:00 A.M. on the third Business Day prior to the date
of the proposed Conversion, and subject to the provisions of
Sections 2.09 and 2.13, Convert all A Advances of one Type
comprising the same A Borrowing into A Advances of another
Type; provided, however, that any Conversion of any
Eurodollar Rate Advances into A Advances of another Type
shall be made on, and only on, the last day of an Interest
Period for such Eurodollar Rate Advances. Each such Notice
of Conversion shall be in substantially the form of Exhibit
B-3 hereto and shall, within the restrictions specified
above, specify (i) the date of such Conversion, (ii) the A
Advances to be Converted, (iii) if such Conversion is into
Eurodollar Rate Advances, the duration of the Interest
Period for each such A Advance, and (iv) the aggregate
amount of A Advances proposed to be Converted.
1. SECTION Prepayments of A Advances. The
Borrower shall have no right to prepay any principal amount
of any A Advances other than as provided in subsections (b)
and (c) below.
1. The Borrower may, upon at least two 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 the outstanding
principal amounts of the A Advances comprising part of the
same A 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 (x) each
partial prepayment shall be in an aggregate principal amount
not less than $1,000,000 (or, if lower, the principal amount
outstanding hereunder on the date of such prepayment) or an
integral multiple of $1,000,000 in excess thereof and (y) in
the case of any such prepayment of a Eurodollar Rate Advance
on a day other than the last day of an Interest Period for
such Advance, the Borrower shall be obligated to reimburse
the Lenders in respect thereof pursuant to Section 8.04(b).
1. On the date of any termination or reduction
of the Commitments pursuant to Section 2.05, the Borrower
shall pay or prepay for the ratable accounts of the Lenders
so much of the principal amount outstanding under this
Agreement as shall be necessary in order that the principal
amount outstanding (after giving effect to such prepayment)
will not exceed the amount of Commitments following such
termination or reduction, together with (i) accrued interest
to the date of such prepayment on the principal amount
repaid or prepaid and (ii) in the case of prepayments of
Eurodollar Rate Advances, any amount payable to the Lenders
pursuant to Section 8.04(b).
1. SECTION Increased Costs. 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 in 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 such Lender
additional amounts sufficient to compensate such Lender for
such increased cost. Each Lender agrees to notify the
Borrower of any such increased costs as soon as reasonably
practicable after determining that such increased cost is
applicable to Eurodollar Rate Advances hereunder. 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. If requested by the Borrower, the Lender
requesting such increased cost shall provide a brief summary
of the manner in which such increased cost was determined,
provided that the failure to deliver such summary or, absent
manifest error, the contents of such summary shall not
affect the obligation of the Borrower to pay such increased
cost.
1. 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 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 to
lend hereunder. Each Lender agrees to notify the Borrower
of any such additional amount as soon as reasonably
practicable after the Lender makes such determination. A
certificate as to such amounts submitted to the Borrower and
the Agent by such Lender shall be conclusive and binding for
all purposes, absent manifest error. If requested by the
Borrower, the Lender requesting such additional amount shall
provide a brief summary of the manner in which such
additional amount was determined, provided that the failure
to deliver such summary or, absent manifest error, the
contents of such summary shall not affect the obligation of
the Borrower to pay such additional amount.
1. The provisions contained in this Section 2.12
shall survive for a period of 90 days after the repayment
(on or after the Termination Date) of all A Advances.
A. SECTION Illegality. Notwithstanding any other
provision of this Agreement, if any Lender shall notify the
Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts
that it is unlawful, for any 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, (i) the obligation of the Lenders
to make, or to Convert A Advances into, Eurodollar Rate
Advances shall be suspended until the Agent (based on notice
from the affected Lender) shall notify the Borrower and the
Lenders that the circumstances causing such suspension no
longer exist and (ii) the Borrower shall forthwith prepay in
full all Eurodollar Rate Advances of all Lenders then
outstanding, together with interest accrued thereon, unless
the Borrower, within five Business Days of notice from the
Agent (or such shorter, maximum period of time, specified by
the Agent, as may be legally allowable), Converts all
Eurodollar Rate Advances of all Lenders then outstanding
into Base Rate Advances in accordance with Section 2.10.
1. SECTION Payments and Computations. The
Borrower shall make each payment hereunder and under the A
Notes not later than 12:00 Noon on the day when due in U.S.
dollars to the Agent at its address referred to in Section
8.02 in same day funds. The Agent will promptly thereafter
cause to be distributed like funds relating to the payment
of principal or interest or facility fees ratably (other
than amounts payable pursuant to Section 2.03 or 2.08) 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 an Assignment and
Acceptance and recording of the information contained
therein in the Register pursuant to Section 8.07(d), from
and after the effective date specified in such Assignment
and Acceptance, the Agent shall make all payments hereunder
and under the Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties
to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such
effective date directly between themselves.
1. The Borrower hereby authorizes each Lender,
if and to the extent payment owed to such Lender is not made
to the Agent when due hereunder or under any Note 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.
1. All computations of interest based on the
Base Rate 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 of facility
fees shall be made by the Agent, and all computations of
interest pursuant to Section 2.08 shall be made by a Lender,
on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding
the last day) occurring in the period for which such
interest or facility fees are payable. Each determination
by the Agent (or, in the case of Section 2.08, by a Lender)
of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
1. Whenever any payment hereunder or under the
Notes 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 facility 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.
1. 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 Lender's pro rata share of such
deficiency 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.
1. SECTION Taxes. Any and all payments by the
Borrower hereunder and under the Notes 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 the
jurisdiction under the laws of which such Lender or the
Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes
imposed on its overall net income, and franchise taxes
imposed on it by the jurisdiction of such Lender's
Applicable Lending Office or any political subdivision
thereof (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 Note 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 2.15) 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.
1. 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 the Notes or
from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or the Notes
(hereinafter referred to as "Other Taxes").
1. 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 2.15) 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.
1. Within 30 days after the date of any payment
of Taxes, the Borrower will furnish to the Agent, at its
address referred to in Section 8.02, the original or a
certified copy of a receipt evidencing payment thereof.
1. Each Lender agrees that, on or prior to the
date upon which it shall become a party hereto, and upon the
reasonable request from time to time of the Borrower or the
Agent, such Lender will deliver to the Borrower and the
Agent either (i) a statement that it is organized under the
laws of a jurisdiction within the United States of America
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 Code. Each Lender represents and warrants
that each such form delivered by it to the Agent and the
Borrower pursuant to this subsection (e) is or will be, as
the case may be, complete and accurate at the time
delivered. Each Lender that delivers to the Borrower and
the Agent the form or forms referred to in clause (ii) above
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.
1. Any Lender claiming any additional amounts
payable pursuant to this Section 2.15 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 which may thereafter accrue and would
not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
1. Without prejudice to the survival of any
other agreement of the Borrower hereunder, the agreements
and obligations of the Borrower contained in this Section
2.15 shall survive for a period of four years after the
payment in full of principal and interest hereunder and
under the Notes.
A. SECTION 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 A Advances made by it (other than pursuant
to Section 2.08, 2.12 or 8.04(b)) in excess of its ratable
share of payments on account of the A Advances obtained by
all the Lenders, such Lender shall, if such payment relates
to principal of or interest on an A Advance, forthwith
purchase from the other Lenders such participations in the A
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 each 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 2.16 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. If such excess payment relates to any fees
payable hereunder, the Lender receiving such excess payment
shall forthwith remit such excess payment to the Agent for
distribution by the Agent to the Lenders on a pro rata
basis, provided, however, that if all or any portion of such
excess payment is thereafter recovered from such receiving
Lender, each Lender shall remit to the Agent for
redistribution to the receiving Lender such Lender's ratable
share of the amount so recovered together with an amount
equal to such Lender's ratable share of any interest or
other amount paid or payable by the receiving Lender in
respect of the total amount so recovered.
I. ARTICLE
CONDITIONS OF LENDING
A. SECTION Conditions Precedent to Closing. The
Commitments of the Lenders shall not become effective unless
the following conditions precedent shall have been fulfilled
on or prior to August 6, 1997 (or such later Business Day as
the parties hereto may mutually agree):
1. The Agent shall have received the following,
each dated the date of the Closing (unless otherwise
indicated), in form and substance satisfactory to the
Lenders and (except for the A Notes and the Fee Letter) in
sufficient copies for each Lender:
a) this Agreement, duly executed by the
Borrower, each Bank and the Agent;
a) the A Notes payable to the order of the
Lenders, respectively, duly completed and executed by the
Borrower;
a) certified copies of the resolutions of the
Board of Directors of the Borrower approving this Agreement
and the Notes, and of all documents evidencing other
necessary corporate action and Governmental Approvals, if
any, with respect to this Agreement and the Notes, together
with certified copies of the charter and by-laws (or
equivalent documents) of the Borrower, and a certificate of
status dated within thirty days of the date of the Closing
from the Department of Financial Institutions of the State
of Wisconsin (or other appropriate authority of such
jurisdiction) with respect to the legal status of the
Borrower;
a) a certificate of the Secretary or an
Assistant Secretary of the Borrower certifying the names,
true signatures and incumbency of the officers of the
Borrower authorized to sign this Agreement and the Notes and
the other documents to be delivered hereunder;
a) a favorable opinion of Robert A. Nuernberg,
the senior legal advisor of the Borrower, and Foley &
Lardner, special Wisconsin counsel to the Borrower,
substantially in the forms of Exhibits D and E hereto,
respectively, and as to such other matters as any Lender
through the Agent may reasonably request;
a) a favorable opinion of King & Spalding,
special New York counsel to the Agent, substantially in the
form of Exhibit F hereto;
a) an irrevocable notice from the Borrower
requesting termination of the "Commitments" under the 1993
Credit Facility effective automatically on such date upon
the satisfaction (or waiver) of the other conditions
precedent set forth in this Section 3.01;
a) the Fee Letter, duly executed by the
Borrower; and
a) such other approvals, opinions and documents
as any Lender, through the Agent, may reasonably request.
1. The following statements shall be true and
correct and the Agent shall have received a certificate of a
duly authorized officer of the Borrower, dated the date of
the Closing and in sufficient copies for each Lender,
stating that:
a) 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
a) no event has occurred and is continuing that
constitutes an Unmatured Default or an Event of Default.
1. The Borrower shall have paid (i) all fees
under or referenced in Section 2.04 hereof, 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.
1. Each of the WGC Credit Agreement and the WII
Credit Agreement shall have been duly executed and delivered
by the parties thereto and each of the applicable conditions
precedent enumerated in Section 3.01 of each of the WGC
Credit Agreement and the WII Credit Agreement shall have
been fulfilled to the satisfaction of, or waived with the
consent of, the lenders party to such agreements, Citibank,
as administrative agent under each such agreement, and
Wisconsin Gas and WICOR Industries, as applicable.
A. SECTION Conditions Precedent to Each A
Borrowing. The obligation of each Lender to make an A
Advance on the occasion of each A Borrowing (including the
initial A Borrowing) shall be subject to the conditions
precedent that, on the date of such A Borrowing,
1. the following statements shall be true and
correct (and each of the giving of the applicable Notice of
A Borrowing and the acceptance by the Borrower of the
proceeds of such A Borrowing shall constitute a
representation and warranty by the Borrower that, on the
date of such A Borrowing, such statements are true and
correct):
a) the representations and warranties contained
in Section 4.01 are true and correct on and as of the date
of such A Borrowing, before and after giving effect to such
A Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, and
a) no event has occurred and is continuing, or
would result from such A Borrowing or from the application
of the proceeds therefrom, which constitutes an Event of
Default or an Unmatured Default, and
1. the Agent shall have received such other
approvals, opinions or documents as any Lender through the
Agent may reasonably request, and such approvals, opinions
and documents shall be satisfactory in form and substance to
the Agent.
A. SECTION Conditions Precedent to Each B
Borrowing. The obligation of each Lender to make a B
Advance on the occasion of a B Borrowing (including the
initial B Borrowing) shall be subject to the conditions
precedent that (a) the Agent shall have received the written
confirmatory Notice of B Borrowing with respect thereto,
(b) on or before the date of such B Borrowing, but prior to
such B Borrowing, the Agent shall have received (for
delivery to such Lender) a B Note payable to the order of
such Lender for each of the one or more B Advances to be
made by such Lender as part of such B Borrowing, in a
principal amount equal to the principal amount of the B
Advance to be evidenced thereby and otherwise on such terms
as were agreed to for such B Advance in accordance with
Section 2.03, (c) on the date of such B Borrowing the
following statements shall be true and correct (and each of
the giving of the applicable Notice of B Borrowing and the
acceptance by the Borrower of the proceeds of such B
Borrowing shall constitute a representation and warranty by
the Borrower that, on the date of such B Borrowing, such
statements are true and correct):
a) the representations and warranties contained
in Section 4.01 are correct on and as of the date of such B
Borrowing, before and after giving effect to such B
Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date, and
a) no event has occurred and is continuing, or
would result from such B Borrowing or from the application
of the proceeds therefrom, which constitutes an Event of
Default or an Unmatured Default, and
(d) the Agent shall have received such other approvals,
opinions, or documents as any Lender through the Agent may
reasonably request, and such approvals, opinions, and
documents shall be satisfactory in form and substance to the
Agent.
A. SECTION Reliance on Certificates. The Lenders
and the Agent shall be entitled to rely conclusively upon
the certificates delivered from time to time by officers of
the Borrower as to the names, incumbency, authority and
signatures of the respective Persons named therein until
such time as the Agent may receive a replacement
certificate, in form acceptable to the Agent, from an
officer of the Borrower 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 the Borrower thereafter authorized to act
on its behalf.
I. ARTICLE
REPRESENTATIONS AND WARRANTIES
A. SECTION Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
1. The Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Wisconsin 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. Each
Subsidiary of the Borrower is duly incorporated, 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. Each of the Borrower and its Subsidiaries has
all requisite corporate powers and authority to own or lease
and operate its properties and to carry on its business as
now conducted and as proposed to be conducted.
2. The execution, delivery and performance by
the Borrower of this Agreement and the Notes are within the
Borrower's corporate powers, have been duly authorized by
all necessary corporate action, do not contravene (i) the
Borrower's charter or by-laws, (ii) any law, rule or
regulation applicable to the Borrower or (iii) any
contractual or legal restriction binding on or affecting the
Borrower, and will not result in or require the imposition
of any lien or encumbrance on, or security interest in, any
property (including, without limitation, accounts or
contract rights) of the Borrower.
1. No Governmental Approval is required that has
not been obtained.
1. This Agreement is, and the Notes when
executed and delivered hereunder will be, legal, valid and
binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms.
1. Each of the audited consolidated balance
sheet of the Borrower and its Subsidiaries as at December
31, 1996, and the related statements of income, retained
earnings and cash flows of the Borrower and its Subsidiaries
for the fiscal year then ended, and the unaudited
consolidated balance sheet of the Borrower and its
Subsidiaries as at March 31, 1997, and the related
statements of income, retained earnings and cash flows of
the Borrower and its Subsidiaries for the three months then
ended, copies of which have been furnished to each Bank,
fairly present (subject, in the case of such financial
statements dated March 31, 1997, to year-end adjustments)
the financial condition of the Borrower and its Subsidiaries
as at such dates and the results of the operations of the
Borrower and its Subsidiaries for the periods ended on such
dates, all in accordance with generally accepted accounting
principles consistently applied. Since December 31, 1996,
there has been no material adverse change in such condition
or results of operations, in the prospects of the Borrower
and its Subsidiaries, or in the ability of the Borrower to
perform its obligations hereunder and under the Notes.
1. There is no pending or threatened action or
proceeding affecting the Borrower or any of its Subsidiaries
before any court, governmental agency or arbitrator, that
could, if adversely determined, reasonably be expected to
materially adversely affect the financial condition, results
of operations, operations or prospects of the Borrower or
any of its Subsidiaries or which purports to affect the
legality, validity or enforceability of this Agreement or
any Note.
1. The use of the proceeds of each Advance will
comply with all provisions of applicable law and regulation
in all material respects.
1. Each of the Borrower and 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, except to the extent the
Borrower or any of its Subsidiaries is diligently contesting
any such taxes in good faith and by appropriate proceedings,
and for which adequate reserves for payment thereof have
been established.
1. The Borrower is (i) the direct, legal and
beneficial owner of 100% of the issued and outstanding
capital stock (or comparable interest) of Wisconsin Gas and
WICOR Industries and (ii) the direct or indirect, legal and
beneficial owner of 100% of the issued and outstanding
capital stock (or comparable interest) of each Significant
Subsidiary.
1. None of the Borrower or 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.
1. The Borrower is a "holding company" exempt
from registration under Section 5 of the Public Utility
Holding Company Act of 1935, as amended, pursuant to Section
3(a)(1) of such Act.
1. Neither the Borrower nor any of its
Subsidiaries is engaged in the business of extending credit
for the purpose of buying or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors
of the Federal Reserve System), and no proceeds of any
Advance will be used to buy or carry any margin stock or to
extend credit to others for the purpose of buying or
carrying any margin stock, unless upon the application of
such proceeds the Borrower and its Subsidiaries shall be in
compliance with Regulation X issued by the Board of
Governors of the Federal Reserve System and shall not have
caused the Agent or any Lender to be in violation of said
Regulation U.
1. No ERISA Event has occurred or is reasonably
expected to occur with respect to any Plan which reasonably
could be expected to materially adversely affect the
financial condition, results of operations, operations or
prospects of the Borrower and its Subsidiaries or the
ability of the Borrower to perform its obligations
hereunder. Since the actuarial valuation date specified in
the most recent Schedule B (Actuarial Information) to the
annual report of Plans maintained by the Borrower (Form 5500
Series), if any, (i) there has been no material adverse
change in the funding status of the Plans referred to
therein which reasonably could be expected to materially
adversely affect the financial condition, results of
operations, operations or prospects of the Borrower and its
Subsidiaries or the ability of the Borrower to perform its
obligations hereunder and (ii) no "prohibited transaction"
has occurred with respect thereto which is reasonably
expected to result in a material liability to the Borrower.
Neither the Borrower nor any of its ERISA Affiliates has
incurred nor reasonably expects to incur any material
withdrawal liability under ERISA to any Multiemployer Plan.
1. The Borrower and its Subsidiaries are in
compliance in all material respects with all applicable
Federal, state and local statutes, rules, regulations,
orders and other provisions of law relating to Hazardous
Materials, air emissions, water discharge, noise emission
and liquid disposal, and other environmental, health and
safety matters, other than those the non-compliance with
which would not have a material adverse effect (taking into
consideration all fines, penalties and sanctions that may be
imposed because of such non-compliance) on the condition
(financial or otherwise), results of operations, operations
or prospects of the Borrower or any of its Subsidiaries or
in the ability of the Borrower to perform its obligations
hereunder. Neither the Borrower nor any of its Subsidiaries
has received from any governmental authority any notice of
any material violation of any such statute, rule,
regulation, order or provision.
I. ARTICLE
COVENANTS OF THE BORROWER
A. SECTION Affirmative Covenants. So long as any
amount in respect of any Note shall remain unpaid or any
Lender shall have any Commitment hereunder, the Borrower
will, unless the Majority Lenders shall otherwise consent in
writing:
1. 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, and take such
other action as may be necessary or advisable to preserve
and maintain its right to conduct its business in the states
where it shall be conducting its business.
1. Maintenance of Properties, Etc. Maintain,
and cause each of its Subsidiaries to maintain, good and
marketable title to all of its properties which are used or
useful in the conduct of its business, and preserve,
maintain, develop and operate, and cause each of its
Subsidiaries to preserve, maintain, develop and operate, in
substantial conformity with all laws and material
contractual obligations, all such properties in good working
order and condition, ordinary wear and tear excepted.
1. Compliance with Laws, Etc. Comply, and cause
each of its Subsidiaries to comply, with the requirements of
all applicable laws, rules, regulations and orders, the
failure to comply with which could reasonably be expected to
materially adversely affect the financial condition, results
of operations, operations or prospects of the Borrower or
such Subsidiary, such compliance to include, without
limitation, paying before the same become delinquent all
taxes, assessments and governmental charges imposed upon it
or upon its property except to the extent diligently
contested in good faith and by appropriate proceedings and
for which adequate reserves for the payment thereof have
been established, and complying with the requirements of all
applicable Federal, state and local statutes, rules,
regulations, orders and other provisions of law relating to
Hazardous Materials, air emissions, water discharge, noise
emission and liquid disposal, and other environmental,
health and safety matters.
1. Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with financially sound
and reputable insurance companies or associations in such
amounts and covering such risks as are usually carried by
companies engaged in the same or similar businesses and
similarly situated.
1. Visitation Rights. At any reasonable time
and from time to time, upon reasonable advance notice,
permit the Agent or any of the Lenders or any agents or
representatives thereof (at the sole cost and expense of the
Lenders), to examine and make copies of and abstracts from
the records and books of account of, and visit the
properties of, the Borrower and any of its Subsidiaries, and
to discuss the affairs, finances and accounts of the
Borrower and any of its Subsidiaries with any of their
officers or directors and with their independent certified
public accountants.
1. Transactions with Affiliates. Conduct, and
cause each of its Subsidiaries to conduct, all transactions
otherwise permitted under this Agreement with any of their
Affiliates on terms that are fair and reasonable and no less
favorable to the Borrower or such Subsidiary than it would
obtain in a comparable arm's-length transaction with a
Person not an Affiliate; provided, however, that the
foregoing shall not restrict the ability of the Borrower or
any of its Subsidiaries to provide employment-related fringe
benefits to any of its officers or directors.
1. Reporting Requirements. Furnish to each
Lender:
a) as soon as available and in any event within
45 days after the end of each of the first three quarters of
each fiscal year of the Borrower, a consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of
such quarter and a consolidated statement of income,
retained earnings and cash flow of the Borrower and its
Subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such
quarter, all in reasonable detail and duly certified by the
chief financial officer of the Borrower as fairly presenting
the financial condition of the Borrower and its Subsidiaries
as at such date and the results of operations of the
Borrower and its Subsidiaries for the periods ended on such
date, all in accordance with generally accepted accounting
principles consistently applied (except, as to Wisconsin
Gas, to the extent otherwise contemplated by Section 1.03 of
the WGC Credit Agreement), together with a certificate of
the chief financial officer of the Borrower
(A) demonstrating and certifying compliance by the Borrower
with the covenants set forth in Section 5.01(m) and
Section 5.02(b) and (B) stating that no Event of Default or
Unmatured Default has occurred and is continuing or, if an
Event of Default or Unmatured Default has occurred and is
continuing, a statement as to the nature thereof and the
action which the Borrower has taken and proposes to take
with respect thereto;
a) as soon as available and in any event within
90 days after the end of each fiscal year of the Borrower, a
copy of the annual report for such year for the Borrower and
its Subsidiaries, containing financial statements for such
year certified without qualification by Arthur Andersen &
Co. or other independent public accountants acceptable to
the Majority Lenders and, to the extent not contained in
such annual report, a consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal
year and a consolidated statement of income, retained
earnings and cash flow of the Borrower and its Subsidiaries
for such fiscal year, certified by the chief financial
officer of the Borrower as fairly presenting the financial
condition of the Borrower and its Subsidiaries as at such
date and the results of operations of the Borrower and its
Subsidiaries for such fiscal year, all in accordance with
generally accepted accounting principles consistently
applied (except, as to Wisconsin Gas, to the extent
otherwise contemplated by Section 1.03 of the WGC Credit
Agreement), together with a certificate of the chief
financial officer of the Borrower (A) demonstrating and
certifying compliance by the Borrower with the covenants set
forth in Section 5.01(m) and Section 5.02(b) and (B) stating
that no Event of Default or Unmatured Default has occurred
and is continuing or, if an Event of Default or Unmatured
Default has occurred and is continuing, a statement as to
the nature thereof and the action which the Borrower has
taken and proposes to take with respect thereto;
a) as soon as possible and in any event within
five days after the occurrence of each ERISA Event, each
Event of Default and each Unmatured Default, continuing on
the date of such statement, a statement of the chief
financial officer of the Borrower setting forth details of
such ERISA Event, Event of Default or Unmatured Default and
the action which the Borrower has taken and proposes to take
with respect thereto;
a) promptly after receipt thereof by the
Borrower or any of its ERISA Affiliates from the PBGC copies
of each notice received by the Borrower or such ERISA
Affiliate of the PBGC's intention to terminate any Plan of
the Borrower or such ERISA Affiliate or to have a trustee
appointed to administer any such Plan;
a) promptly after receipt thereof by the
Borrower or any ERISA Affiliate from a Multiemployer Plan
sponsor, a copy of each notice received by the Borrower or
such ERISA Affiliate concerning the imposition or amount of
withdrawal liability in an aggregate principal amount of at
least $250,000 pursuant to Section 4202 of ERISA in respect
of which the Borrower or such ERISA Affiliate is reasonably
expected to be liable;
b) promptly after the Borrower becomes aware of
the occurrence thereof, notice of all actions, suits,
proceedings or other events (A) of the type described in
Section 4.01(f) or (B) for which the Agent or the Lenders
will be entitled to indemnity under Section 8.04(c);
a) promptly after the sending or filing thereof,
copies of all reports which the Borrower sends to any of its
security holders, and copies of all reports and registration
statements which the Borrower or any of its Subsidiaries
files with the Securities and Exchange Commission or any
national securities exchange; and
a) promptly after requested, such other
information respecting the business, properties, results of
operations, prospects, condition or operations, financial or
otherwise, of the Borrower or any of its Subsidiaries as any
Lender through the Agent may from time to time reasonably
request.
1. Ownership of Certain Subsidiaries. Maintain
at all times (i) direct, 100%, legal and beneficial
ownership of Wisconsin Gas and WICOR Industries and
(ii) direct or indirect, 100%, legal and beneficial
ownership of each Significant Subsidiary.
1. Use of Proceeds. Use all Borrowings for
general corporate purposes (subject to the terms and
conditions of this Agreement), including, without
limitation, for acquisition bridge financing and as a
commercial paper backstop, provided, that the proceeds of
any Advance shall not be used, directly or indirectly, to
purchase or carry margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal
Reserve System).
1. Keeping of Books. Keep, and cause each of
its Subsidiaries to keep, proper books of record and
account, in which full and correct entries shall be made of
all financial transactions and the assets and business of
the Borrower and each of its Subsidiaries in accordance with
generally accepted accounting principles consistent with
those applied in the preparation of the financial statements
referred to in Section 4.01(e) hereof.
1. 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 the Borrower or such Subsidiary or upon the
property of the Borrower or such Subsidiary, except to the
extent the same are being contested in good faith by
appropriate proceedings and the Borrower or such Subsidiary
has set aside adequate reserves in accordance with generally
accepted accounting principles for the payment thereof.
1. Performance and Compliance with Other
Agreements. Perform and comply, and cause each of its
Subsidiaries to perform and comply, with each of the
material provisions of each indenture, credit agreement,
contract or other agreement by which the Borrower or its
properties or such Subsidiary or its properties are bound,
non-performance or non-compliance with which could
reasonably be expected to have a materially adverse effect
upon the financial condition, results of operations,
operations or prospects of the Borrower or such Subsidiary
or in any way affect the ability of the Borrower to perform
its obligations under this Agreement or under the Notes.
1. Debt-to-Capitalization Ratio. Maintain at
all times a Leverage Ratio of 0.65 to 1.00 or less.
1. Further Assurances. At the expense of the
Borrower, promptly execute and deliver, or cause to be
promptly executed and delivered, all further instruments and
documents, and take and cause to be taken all further
actions, that may be necessary or that the Majority Lenders
through the Agent may reasonably request to enable the
Lenders and the Agent to enforce the terms and provisions of
this Agreement and to exercise their rights and remedies
hereunder. In addition, the Borrower will use all
reasonable efforts to duly obtain Governmental Approvals
required 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.
A. SECTION Negative Covenants. So long as any
amount in respect of any Note shall remain unpaid or any
Lender shall have any Commitment hereunder, the Borrower
will not, without the written consent of the Majority
Lenders:
1. 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, or any other type
of preferential arrangement, upon or with respect to any of
its properties, whether now owned or hereafter acquired, or
assign, or permit any of its Subsidiaries to assign, any
right to receive income, in each case to secure or provide
for the payment of any Indebtedness of any Person, other
than (i) purchase money liens or purchase money security
interests upon or in any property acquired or held by the
Borrower or any of its Subsidiaries in the ordinary course
of business to secure the purchase price of such property or
to secure Indebtedness incurred solely for the purpose of
financing the acquisition of such property; (ii) liens for
taxes or assessments or other governmental charges or levies
not yet due or the imposition or amount of which the
Borrower or any of its Subsidiaries is diligently contesting
in good faith by appropriate proceedings and for which
adequate reserves for payment thereof have been established;
(iii) pledges or deposits to secure performance in
connection with bids, tenders, contracts (other than
contracts for the payment of money) or leases to which the
Borrower or any of its Subsidiaries is a party, in each case
made in the ordinary course of business; (iv) materialmen's,
mechanics', carriers', workmen's, repairmen's or other
similar liens arising in the ordinary course of business, or
deposits to obtain the release of such liens; (v) liens or
security interests existing on such property at the time of
its acquisition (other than any such lien or security
interest created in contemplation of such acquisition); and
(vi) liens and security interests set forth on Schedule II
hereto.
1. Indebtedness. Create, incur, assume, or
suffer to exist any Indebtedness if, immediately after
giving effect to such Indebtedness and the receipt and
application of any proceeds thereof, the Borrower would not
be in compliance with Section 5.01(m).
1. Mergers, Etc. Merge or consolidate with or
into, or sell, convey, assign, transfer, lease or otherwise
dispose of (whether in one transaction or in a series of
transactions) all or substantially all its assets or any
Significant Subsidiary (whether now owned or hereafter
acquired) to, any Person, or materially change the nature of
its business, or permit any of its Subsidiaries to do so,
except that any Subsidiary of the Borrower may merge or
consolidate with or into, or dispose of assets to, any other
Subsidiary of the Borrower and except that any Subsidiary of
the Borrower may merge into or dispose of assets to the
Borrower, provided in each case that, immediately after
giving effect to such proposed transaction, no Event of
Default or Unmatured Default would exist and, provided
further, in each case that, immediately after giving effect
to such proposed transaction, the Borrower shall be in
compliance with subsection (b) above.
1. Intercompany Loans and Investments. Except
to the extent required by an order of the Public Service
Commission of Wisconsin, make any loan to or investment in
Wisconsin Gas at any time when an Event of Default (as
defined in the WGC Credit Agreement) or an Unmatured Default
(as defined in the WGC Credit Agreement) shall have occurred
and be continuing; or make any loan to or investment in
WICOR Industries at any time when an Event of Default (as
defined in the WII Credit Agreement) or an Unmatured Default
(as defined in the WII Credit Agreement) shall have occurred
and be continuing; or make any loan to or investment in
Wisconsin Gas, WICOR Industries or any other Subsidiary of
the Borrower at any time when an Event of Default or an
Unmatured Default shall have occurred and be continuing.
1. Guaranties. Create, incur or suffer to exist
any obligations of the type described in clause (vii) of the
definition of Indebtedness in respect of Wisconsin Gas.
1. Compliance with ERISA. (i) Permit to exist
any "accumulated funding deficiency" (as defined in Section
412(a) of the Code), unless such deficiency exists with
respect to a Multiple Employer Plan or Multiemployer Plan
and the Borrower has no control over the reduction or
elimination of such deficiency, (ii) terminate, or permit
any ERISA Affiliate to terminate, any Plan of the Borrower
or such ERISA Affiliate so as to result in any material (in
the opinion of the Majority Lenders) liability of the
Borrower to the PBGC, or (iii) permit to exist any
occurrence of any reportable event (within the meaning of
Section 4043 of ERISA), or any other event or condition,
which presents a material (in the opinion of the Majority
Lenders) risk of such a termination by the PBGC of any Plan
of the Borrower or such ERISA Affiliate and such a material
liability to the Borrower.
I. ARTICLE
EVENTS OF DEFAULT
A. SECTION Events of Default. If any of the
following events (each an "Event of Default") shall occur
and be continuing:
1. The Borrower shall fail to pay any principal
of, or any interest on, any Note when the same becomes due
and payable; or
1. Any representation or warranty made by or on
behalf of the Borrower herein or by or on behalf of the
Borrower (or any of its officers) in connection with this
Agreement shall prove to have been incorrect in any material
respect when made or deemed made; or
1. The Borrower shall fail to perform or observe
(i) any term, covenant or agreement contained in Section
2.04, 5.01(a), 5.01(g)(iii), 5.01(h), 5.01(i), 5.01(m) or
5.02, or (ii) any other term, covenant or agreement
contained in this Agreement (other than obligations
specifically set forth elsewhere in this Section 6.01) on
its part to be performed or observed if the failure to
perform or observe such other term, covenant or agreement,
if susceptible of remedy, shall remain unremedied for 30
days after written notice thereof shall have been given to
the Borrower by the Agent or any Lender; or
1. The Borrower shall fail to pay any principal
of or premium or interest on any Indebtedness (other than
Indebtedness evidenced by the Notes) of the Borrower when
the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement
or instrument relating to such Indebtedness; or any other
event shall occur or condition shall exist under any
agreement or instrument relating to any such Indebtedness
and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the
effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness 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; or
1. The Borrower 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 a
general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the Borrower
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or 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, custodian or other similar official for it or for
any substantial part of its property and, in the case of any
such proceeding instituted against it (but not instituted by
it), such proceeding shall remain undismissed or unstayed
for a period of 45 days, any of the actions sought in such
proceeding (including, without limitation, the entry of an
order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or for
any substantial part of its property) shall occur or the
Borrower shall consent to or acquiesce in any such
proceeding; or the Borrower shall take any corporate action
to authorize any of the actions set forth above in this
subsection (e); or
1. Any judgment or order for the payment of
money in excess of $5,000,000 shall be rendered against the
Borrower 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 10 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
1. The Borrower's obligations under this
Agreement or any of the Notes shall become unenforceable, or
the Borrower, or any court or governmental or regulatory
body having jurisdiction over the Borrower, shall so assert
in writing; or
1. Any ERISA Event shall have occurred with
respect to a Plan and, 30 days after notice thereof shall
have been given to the Borrower by the Agent or any Lender,
(i) such ERISA Event shall still exist and (ii) the sum
(determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Plan and the
Insufficiency of any and all other Plans with respect to
which an ERISA Event shall have occurred and then exist (or,
in the case of a Plan with respect to which an ERISA Event
described in clauses (iii) through (vi) of the definition of
ERISA Event shall have occurred and then exist, the
liability related thereto) is equal to or greater than
$5,000,000; or
1. Any Governmental Approval 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;
then, and in any such event, the Agent (i) shall at the
request, or may with the consent, of the holders of at least
66 % in principal amount of the A Advances then outstanding
or, if no A Advances are then outstanding, Lenders having at
least 66 % of the Commitments (without giving effect to any
B Reduction), by notice to the Borrower, declare the
obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall
at the request, or may with the consent, of the holders of
at least 66 % in principal amount of the Advances then
outstanding or, if no Advances are then outstanding, Lenders
having at least 66 % of the Commitments, by notice to the
Borrower, declare the Notes, all interest thereon and all
other amounts payable under this Agreement to be forthwith
due and payable, whereupon the Notes, 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
Notes, 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.
I. ARTICLE
THE AGENT
A. SECTION 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 (including, without
limitation, enforcement or collection of the Notes), 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; 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.
A. SECTION 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, except for its or their own gross negligence or
willful misconduct. Without limitation of the generality of
the foregoing, the Agent: (i) to the extent of any payments
to be disbursed by the Agent, may treat the payee of any
Note as the holder thereof until the Agent receives and
accepts an Assignment and Acceptance entered into by the
Lender which is the payee of such Note, as assignor, and an
assignee of such Lender, as provided in Section 8.07;
(ii) may consult with legal counsel (including counsel for
the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or
experts; (iii) makes no warranty or representation to any
Lender and shall not be responsible to any Lender for any
statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement;
(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 on the part of the
Borrower or to inspect the property (including the books and
records) of the Borrower; (v) shall not be responsible to
any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished
pursuant hereto; and (vi) shall incur no liability under or
in respect of this Agreement 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.
A. SECTION Citibank and Affiliates. With respect
to its Commitment, the Advances made by it and the Notes
issued to it, Citibank shall have the same rights and powers
under this Agreement as any other Lender and may exercise
the same as though it were not the Agent; and the terms
"Bank" or "Banks" and "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept
deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business
with, the Borrower, any of its Subsidiaries or Affiliates
and any Person who may do business with or own securities of
the Borrower or any such Subsidiary or Affiliate, all as if
Citibank were not the Agent and without any duty to account
therefor to the Lenders.
A. SECTION 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(e) 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.
A. SECTION Indemnification. The Lenders agree to
indemnify the Agent (to the extent not reimbursed by the
Borrower), ratably according to the respective principal
amounts of the A Notes then held by each of them (or if no A
Notes are at the time outstanding or if any A Notes are held
by Persons which are not Lenders, ratably according to the
respective amounts of their Commitments), 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, provided, that no Lender
shall be liable for any portion of such out-of-pocket
expenses (including counsel fees) resulting from the Agent's
gross negligence or willful misconduct.
A. SECTION Successor Agent. The Agent may resign
at any time by giving written notice thereof to the Lenders
and the Borrower and may be removed at any time with or
without cause by the Majority Lenders, with any such
resignation or removal to become effective only upon the
appointment of a successor Agent pursuant to this Section
7.06. Upon any such resignation or removal, the Majority
Lenders shall have the right to appoint a successor Agent.
Such successor shall be subject to the approval of the
Borrower, such approval not to be unreasonably withheld or
delayed, provided that such approval shall not be necessary
if at the time such successor is appointed there shall have
occurred and be continuing an Event of Default or an
Unmatured Default. 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 America or of any State thereof and having a combined
capital and surplus of at least $50,000,000. Upon the
acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring
Agent's resignation or removal hereunder as Agent, the
provisions of this Article VII shall inure to its benefit as
to any actions taken or omitted to be taken by it while it
was Agent under this Agreement.
I. ARTICLE
MISCELLANEOUS
A. SECTION Amendments, Etc. No amendment or waiver
of any provision of this Agreement or the Notes, 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 then such amendment,
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given;
provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by all the Lenders, do
any of the following: (a) waive, modify or eliminate any of
the conditions specified in Section 3.01, 3.02 or, during
any period of time when offers to make B Advances shall be
outstanding and shall not have been accepted or canceled,
3.03, (b) increase the Commitments of the Lenders or subject
the Lenders to any additional obligations, (c) reduce the
principal of, or interest on, the A Notes, 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 A Notes or any fees or other amounts
payable hereunder, (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of
the A Notes, or the number of Lenders, which shall be
required for the Lenders or any of them to take any action
hereunder or (f) amend this Section 8.01; 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, however, that no amendment,
waiver or consent shall affect the terms or provisions of
any B Note or any B Advance unless such amendment, waiver or
consent is in writing and signed by the Lender holding such
B Note or to which such B Advance is payable in addition to
the Lenders required above to take such action.
A. SECTION Notices, Etc. All notices and other
communications provided for hereunder 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
626 East Wisconsin Avenue, Milwaukee, Wisconsin 53202,
(telecopy no. 414-291-6361), Attention: Vice President and
Treasurer; if to any Bank, at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any
other Lender, at its Domestic Lending Office specified in
the Assignment and Acceptance pursuant to which it became a
Lender; and if to the Agent, at its address at 200 S. Wacker
Drive, Chicago, Illinois 60606, Attention H. Peter Koesler,
with copy to: Citicorp Securities, Inc., Two Penns Way,
Suite 200, New Castle, Delaware 19720, Attention: Loan
Disclosure 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 when deposited in the mails, telecopied, delivered
to the telegraph company, confirmed by telex answerback or
delivered to the cable company, respectively, except that
notices and communications to the Agent pursuant to Article
II or VII shall not be effective until received by the
Agent.
A. SECTION 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.
1. SECTION Costs, Expenses, Taxes and
Indemnification. The Borrower agrees to pay on demand all
costs and expenses in connection with the preparation,
execution, delivery, administration, modification and
amendment of this Agreement, the Notes and the other
documents to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses
of counsel for the Agent with respect thereto and with
respect to advising the Agent as to its rights and
responsibilities under this Agreement. The Borrower further
agrees to pay on demand all costs and expenses, if any
(including, without limitation, reasonable counsel fees and
expenses), in connection with the enforcement (whether
through negotiations, legal proceedings or otherwise) of
this Agreement, the Notes and the other documents to be
delivered hereunder, including, without limitation,
reasonable counsel fees and expenses in connection with the
enforcement of rights under this Section 8.04(a). In
addition, the Borrower shall pay any and all stamp and other
taxes payable or determined to be payable in connection with
the execution and delivery of this Agreement, the Notes and
the other documents to be delivered hereunder, and agrees to
save the Agent and each Lender harmless from and against any
and all liabilities with respect to or resulting from any
delay by the Borrower in paying or omission to pay such
taxes.
2. If any payment of principal of, or Conversion
of, any Eurodollar Rate Advance is made other than on the
last day of the Interest Period for such Advance, as a
result of a payment or Conversion pursuant to Section
2.09(e), 2.10, 2.11 or 2.13 or acceleration of the maturity
of the Notes pursuant to Section 6.01 or for any other
reason, the Borrower shall, upon demand by any Lender (with
a copy of such demand to the Agent), pay to the Agent for
the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or
expenses which it may reasonably incur as a result of such
payment or Conversion, including, without limitation, any
loss (including loss of anticipated profits), 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 A Advance.
1. The Borrower hereby agrees to indemnify and
hold each Lender, the Agent and their respective officers,
directors, employees, agents, professional advisors and
affiliates (each, an "Indemnified Person") harmless from and
against any and all claims, damages, losses, liabilities,
costs or expenses (including, without limitation, 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):
a) by reason of or in connection with the
execution, delivery or performance of this Agreement, the
Notes or any transaction contemplated hereby or thereby, or
the use by the Borrower or any of its Subsidiaries of the
proceeds of any Advance;
a) in connection with any documentary taxes,
assessments or charges made by any governmental authority by
reason of the execution and delivery of this Agreement or
the Notes; or
a) in connection with or resulting from the
utilization, storage, disposal, treatment, generation,
transportation, release or ownership of any Hazardous
Materials (A) at, upon, or under any property of the
Borrower or any of its Affiliates or (B) by or on behalf of
the Borrower or any of its Affiliates at any time and in any
place.
1. The Borrower's obligations under this Section
8.04 shall survive the repayment of all amounts owing to the
Lenders under the Notes and the termination of the
Commitments. If and to the extent that the obligations of
the Borrower under this Section 8.04 are unenforceable for
any reason, the Borrower agrees to make the maximum
contribution to the payment and satisfaction thereof which
is permissible under applicable law.
1. SECTION Right of Set-off. 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 specified by Section 6.01 to authorize the
Agent to declare the Notes 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 this Agreement and
any Note held by such Lender, whether or not such Lender
shall have made any demand under this Agreement or such Note
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.
1. The Borrower agrees that it shall have no
right of set-off, deduction or counterclaim in respect of
its obligations hereunder, and that the obligations of the
Lenders hereunder are several and not joint. Nothing
contained herein shall constitute a relinquishment or waiver
of the Borrower's rights to any claim arising under this
Agreement that the Borrower may have against the Agent or
any Lender for the Agent's or such Lender's, as the case may
be, gross negligence or wilful misconduct, but no Lender
shall be liable to the Borrower for the conduct of the Agent
or any other Lender, and the Agent shall not be liable to
the Borrower for the conduct of any Lender.
A. SECTION Binding Effect. This Agreement shall
become effective when it shall have been executed by the
Borrower and the Agent and when the Agent shall have been
notified in writing by each Bank that such Bank has executed
it and thereafter shall be binding upon and inure to the
benefit of the Borrower, the Agent and each Lender and their
respective successors and assigns, except that the Borrower
shall not have the right to assign its rights or obligations
hereunder or any interest herein without the prior written
consent of all the Lenders.
1. SECTION Assignments and Participations. Each
Lender may assign to one or more banks or financial
institutions all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or
a portion of its Commitment, the A Advances owing to it and
the A Note or A Notes held by it); provided, however, that
(i) the Borrower shall have consented to such assignment
(such consent not to be unreasonably withheld or delayed) by
signing the Assignment and Acceptance referred to in clause
(iii) below, (ii) each such assignment shall be of a
constant, and not a varying, percentage of all of the
assigning Lender's rights and obligations under this
Agreement (other than any B Advances or B Notes) and
(iii) the parties to each such assignment shall execute and
deliver to the Agent, for its acceptance and recording in
the Register, an Assignment and Acceptance, together with
any A Note or A Notes subject to such assignment and a
processing and recordation fee of $2,500 (plus an amount
equal to out-of-pocket legal expenses of the Agent,
estimated by the Agent and advised to such parties), payable
by the assigning Lender or the assignee, as agreed upon by
such parties. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in
each Assignment and Acceptance, (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 Assignment and Acceptance, 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 Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance 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 assign all or any portion of the Advances owing to it
to any Affiliate of such Lender. No such assignment, other
than to an Affiliate of such Lender consented to by the
Borrower (such consent not to be unreasonably withheld or
delayed), shall release the assigning Lender from its
obligations hereunder.
1. By executing and delivering an Assignment and
Acceptance, 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 Assignment and Acceptance, 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 this Agreement
or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any
other instrument or document furnished pursuant hereto;
(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
this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01(e) and
such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (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 this
Agreement; (v) such assignee 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; and (vi) such assignee
agrees that it will perform in accordance with their terms
all of the obligations which by the terms of this Agreement
are required to be performed by it as a Lender.
1. The Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and
Acceptance 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 A
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.
1. Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an assignee,
together with any A Note or A Notes subject to such
assignment, the Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the
form of Exhibit C hereto, and has been signed by the
Borrower, (i) accept such Assignment and Acceptance,
(ii) record the information contained therein in the
Register and (iii) give prompt notice of such recordation to
the Borrower. Within five Business Days after its receipt
of such notice, the Borrower, at its own expense, shall
execute and deliver to the Agent in exchange for the
surrendered A Note or A Notes a new A Note to the order of
such assignee in an amount equal to the Commitment assumed
by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a Commitment hereunder, a new
A Note to the order of the assigning Lender in an amount
equal to the Commitment retained by it hereunder. Such new
A Note or A Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered
A Note or A Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A-1 hereto.
1. Each Lender may assign to one or more banks
or other financial institutions any B Note or B Notes held
by it, without the consent of the Borrower.
1. 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 this
Agreement (including, without limitation, all or a portion
of its Commitment, the Advances owing to it and the Note or
Notes 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 for all purposes of this Agreement,
(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, and (v) the voting rights of any holder of
any participation shall be limited to decisions that only do
any of the following: (A) subject the participant to any
additional obligation, (B) reduce the principal of or
interest on the Notes or any fees or other amounts payable
hereunder, or (C) postpone any date fixed for the payment of
principal of or interest on the Notes or any fees or other
amounts payable hereunder. The Borrower agrees that any
purchaser of a participation may, to the fullest extent
permitted by law, exercise all of its rights of payment
(including the right of set-off) with respect to such
participation as fully as if such purchaser were the direct
creditor of the Borrower in the amount of such
participation.
1. Any Lender may, in connection with any
assignment or participation or proposed assignment or
participation pursuant to this Section 8.07, disclose to the
assignee or participant or proposed assignee or participant,
any information relating to the Borrower furnished to such
Lender by or on behalf of the Borrower; provided that, prior
to any such disclosure, the assignee or participant or
proposed assignee or participant shall agree to preserve the
confidentiality of any confidential information relating to
the Borrower received by it from such Lender.
1. Anything in this Section 8.07 to the contrary
notwithstanding, any Lender may assign and pledge all or any
portion of its Commitment and the Advances owing to it to
any Federal Reserve Bank (and its transferees) as collateral
security pursuant to Regulation A of the Board of Governors
of the Federal Reserve System and any Operating Circular
issued by such Federal Reserve Bank. No such assignment
shall release the assigning Lender from its obligations
hereunder.
A. SECTION Consent to Jurisdiction. The Borrower
hereby irrevocably submits to the non-exclusive jurisdiction
of any New York State or Federal court sitting in New York
County, State of New York, for any action or proceeding
arising out of or relating to this Agreement or any Note,
and the Borrower hereby irrevocably agrees that all claims
in respect of any such action or proceeding may be heard and
determined in such New York State court or, to the extent
permitted by law, in such Federal court. The Borrower
hereby irrevocably waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum to
the maintenance of any such action or proceeding. The
Borrower further irrevocably consents to the service of
process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to the
address of the Borrower specified in Section 8.02. 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.
A. SECTION 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 THE
NOTES, 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.
A. SECTION Governing Law. This Agreement and the
Notes shall be governed by, and construed in accordance
with, the laws of the State of New York.
A. SECTION Headings. Article and Section headings
in this Agreement are included herein for convenience of
reference only and shall not constitute a part of this
Agreement for any other purpose.
A. SECTION Relation of the Parties; No Beneficiary.
No term, provision or requirement, whether express or
implied, of this Agreement or any Note, or actions taken or
to be taken by any party hereunder or thereunder, shall be
construed to create a partnership, association, or joint
venture between such parties or any of them. No term or
provision of this Agreement or any Note shall be construed
to confer a benefit upon, or grant a right or privilege to,
any Person other than the parties thereto.
A. SECTION 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.
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.
WICOR, INC.
By
Title:
CITIBANK, N.A.,
as
Agent
By
Vice
President
[Bank Signature Pages Omitted]
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 12
SECTION 1.03. Accounting Terms 12
SECTION 1.04. Computations of Outstandings 12
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances 13
SECTION 2.02. Making the A Advances 13
SECTION 2.03. The B Advances 14
SECTION 2.04. Fees 17
SECTION 2.05. Reduction of the Commitments 18
SECTION 2.06. Repayment of A Advances 18
SECTION 2.07. Interest on A Advances 18
SECTION 2.08. Additional Interest on Eurodollar Rate
Advances 18
SECTION 2.09. Interest Rate Determination 19
SECTION 2.10. Voluntary Conversion of A Advances 20
SECTION 2.11. Prepayments of A Advances 20
SECTION 2.12. Increased Costs 21
SECTION 2.13. Illegality 22
SECTION 2.14. Payments and Computations 22
SECTION 2.15. Taxes 23
SECTION 2.16. Sharing of Payments, Etc 24
ARTICLE III CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Closing 25
SECTION 3.02. Conditions Precedent to Each A Borrowing
27
SECTION 3.03. Conditions Precedent to Each B Borrowing
27
SECTION 3.04. Reliance on Certificates 28
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower 28
ARTICLE V COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants 31
SECTION 5.02. Negative Covenants 35
ARTICLE VI EVENTS OF DEFAULT
SECTION 6.01. Events of Default 37
ARTICLE VII THE AGENT
SECTION 7.01. Authorization and Action 39
SECTION 7.02. Agent's Reliance, Etc 39
SECTION 7.03. Citibank and Affiliates 40
SECTION 7.04. Lender Credit Decision 40
SECTION 7.05. Indemnification 40
SECTION 7.06. Successor Agent 41
ARTICLE VIII MISCELLANEOUS
SECTION 8.01. Amendments, Etc 41
SECTION 8.02. Notices, Etc 42
SECTION 8.03. No Waiver; Remedies 42
SECTION 8.04. Costs, Expenses, Taxes and Indemnification
42
SECTION 8.05. Right of Set-off 44
SECTION 8.06. Binding Effect 44
SECTION 8.07. Assignments and Participations 44
SECTION 8.08. Consent to Jurisdiction 47
SECTION 8.09. WAIVER OF JURY TRIAL 47
SECTION 8.10. Governing Law 47
SECTION 8.11. Headings 47
SECTION 8.12. Relation of the Parties; No Beneficiary 48
SECTION 8.13. Execution in Counterparts 48
Schedule I - Lending Offices
Schedule II - Existing Liens and Security Interests
Exhibit A-1 - Form of A Note
Exhibit A-2 - Form of B Note
Exhibit B-1 - Notice of A Borrowing
Exhibit B-2 - Notice of B Borrowing
Exhibit B-3 - Notice of Conversion
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Robert A. Nuernberg
Exhibit E - Form of Opinion of Foley & Lardner
Exhibit F - Form of Opinion of King & Spalding
[EXECUTION COPY]
U.S. $25,000,000
REVOLVING CREDIT AGREEMENT
Dated as of August 6, 1997
Among
WICOR, INC.
THE BANKS NAMED HEREIN
and
CITIBANK, N.A.
as Administrative Agent