EXHIBIT 4(i)
[EXECUTION COPY]
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$150,000,000
SECOND
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of November 9, 1994
Among
IES DIVERSIFIED INC.
as Borrower
and
THE BANKS NAMED HEREIN
as Banks
and
CITIBANK, N.A.
as Agent
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TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms . . . . . . . . . . 1
1.02. Computation of Time Periods . . . . . . . 17
1.03. Computations of Outstandings . . . . . . . 17
1.04. Accounting Terms . . . . . . . . . . . . . 17
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
2.01. The A Advances . . . . . . . . . . . . . . 18
2.02. Making the A Advances . . . . . . . . . . 18
2.03. The B Advances . . . . . . . . . . . . . . 20
2.04. Fees . . . . . . . . . . . . . . . . 24
2.05. Reduction of the Commitments . . . . . . . 24
2.06. Repayment of A Advances . . . . . . . . . 24
2.07. Interest on A Advances . . . . . . . . . . 24
2.08. Additional Interest on Eurodollar Rate
Advances . . . . . . . . . . . . . . . . 25
2.09. Interest Rate Determination . . . . . . . 26
2.10. Voluntary Conversion of A Advance . . . . 28
2.11. Optional Prepayments of Advances . . . . . 29
2.12. Mandatory Prepayments . . . . . . . . . . 29
2.13. Increased Costs . . . . . . . . . . . . . 30
2.14. Illegality . . . . . . . . . . . . . . . . 31
2.15. Payments and Computations . . . . . . . . 32
2.16. Taxes . . . . . . . . . . . . . . . . 33
2.17. Sharing of Payments, Etc. . . . . . . . . 35
2.18. Extension of Termination Date . . . . . . 36
ARTICLE III
CONDITIONS OF LENDING
3.01. Conditions Precedent to Closing . . . . . 37
3.02. Conditions Precedent to Each
A Borrowing . . . . . . . . . . . . . . 39
3.03. Conditions Precedent to Each39
B Borrowing . . . . . . . . . . . . . . 39
3.04. Reliance on Certificates . . . . . . . . . 41
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the
Borrower . . . . . . . . . . . . . . . . 41
ARTICLE V
COVENANTS OF THE BORROWER
5.01. Affirmative Covenants . . . . . . . . . . 44
5.02. Negative Covenants . . . . . . . . . . . . 49
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default . . . . . . . . . . . . 54
ARTICLE VII
THE AGENT
7.01. Authorization and Action . . . . . . . . . 57
7.02. Agent's Reliance, Etc. . . . . . . . . . . 57
7.03. Citibank, N.A. and Affiliates . . . . . . 58
7.04. Lender Credit Decision . . . . . . . . . . 58
7.05. Indemnification . . . . . . . . . . . . . 58
7.06. Successor Agent . . . . . . . . . . . . . 59
ARTICLE VIII
MISCELLANEOUS
8.01. Amendments, Etc. . . . . . . . . . . . . . 60
8.02. Notices, Etc. . . . . . . . . . . . . . . 60
8.03. No Waiver; Remedies . . . . . . . . . . . 61
8.04. Costs, Expenses, Taxes and Indemnification . 61
8.05. Right of Set-off . . . . . . . . . . . . . 63
8.06. Binding Effect . . . . . . . . . . . . . . 63
8.07. Assignments and Participations . . . . . . 64
8.08. Confidentiality . . . . . . . . . . . . . 67
8.09. Waiver of Jury Trial . . . . . . . . . . . 68
8.10. Consent . . . . . . . . . . . . . . . 68
8.11. Governing Law . . . . . . . . . . . . . . 69
8.12. Relation of the Parties; No Beneficiary . . 69
8.13. Execution in Counterparts . . . . . . . . 69
Exhibits
EXHIBIT 1.01A-1 - Form of A Note
EXHIBIT 1.01A-2 - Form of B Note
EXHIBIT 1.01B - Form of Support Agreement
EXHIBIT 2.02(a) - Form of Notice of A Borrowing
EXHIBIT 2.03(a)(i) - Form of Notice of B Borrowing
EXHIBIT 2.10 - Form of Notice of Conversion
EXHIBIT 3.01(a)(xii)-1 - Form of Opinion of Winthrop, Stimson,
Putnam & Roberts, Special New York
Counsel for the Borrower and the
Parent
EXHIBIT 3.01(a)(xii)-2 - Form of Opinion of the General
Counsel of the Borrower and the
Parent
EXHIBIT 3.01(a)(xii)-3 - Form of Opinion of King & Spalding,
Special New York Counsel to the Agent
EXHIBIT 8.07 - Form of Lender Assignment
Schedules
SCHEDULE I - List of Applicable Lending Offices
SCHEDULE II - Liens
SCHEDULE III - Debt
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of November 9, 1994
THIS CREDIT AGREEMENT is made by and among:
(i) IES DIVERSIFIED INC., an Iowa corporation
(the Borrower ), all of whose common
stock is owned on the date hereof by the
Parent (as hereinafter defined),
(ii) the banks (the Banks ) listed on the
signature pages hereof and the other
Lenders (as hereinafter defined) from
time to time party hereto, and
(iii) Citibank, N.A., as agent (the
Agent ) for the Lenders hereunder.
PRELIMINARY STATEMENTS
(1) The Borrower, certain banks (the
Existing Banks ) and Citibank, N.A., as agent for the Existing
Banks, are parties to that certain Amended and Restated Credit
Agreement, dated as of January 7, 1993 (the Existing Facility ).
(2) The Borrower has requested that the
Existing Facility be amended and restated so as to (i) increase
the Commitments (as defined therein) to $150,000,000 and (ii)
effect certain other amendments and modifications as set forth
herein.
(3) The Banks and the Agent have agreed to
such request, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the
premises and the mutual covenants herein contained, the parties
hereto hereby agree that the Existing Facility is hereby amended
and restated in its entirety to read as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As
used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
A Advance means an advance by a Lender
to the Borrower as part of an A Borrowing and
refers to an Adjusted CD Rate Advance, 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, having the same Interest Period and
ratably made or Converted on the same day by
each of the Lenders pursuant to Section 2.02
or 2.10, as the case may be. All Advances of
the same Type, having the same Interest Period
and made or Converted on the same day shall be
deemed a single Borrowing hereunder until
repaid or next Converted.
A Note means a promissory note of the
Borrower payable to the order of any Lender,
in substantially the form of Exhibit 1.01A-1
hereto, evidencing the aggregate indebtedness
of the Borrower to such Lender resulting from
the A Advances made by such Lender.
Adjusted CD Rate means, for any
Interest Period for each Adjusted CD Rate
Advance made as part of the same A Borrowing,
an interest rate per annum equal to the sum
of:
(a) the rate per annum obtained
by dividing (i) the rate of interest
determined by the Agent to be the average
(rounded upward to the nearest whole
multiple of 1/100 of 1% per annum, if
such average is not such a multiple) of
the consensus bid rate determined by each
of the Reference Banks for the bid rates
per annum at 9:00 A.M. (New York City
time) (or as soon thereafter as
practicable) on the first day of such
Interest Period of New York certificate
of deposit dealers of recognized standing
selected by such Reference Bank for the
purchase at face value of certificates of
deposit of such Reference Bank in an
amount substantially equal to such
Reference Bank's Adjusted CD Rate Advance
made as part of such A Borrowing and
maturing on the last day of such Interest
Period, by (ii) a percentage equal to
100% minus the Adjusted CD Rate Reserve
Percentage (as defined below) for such
Interest Period, plus
(b) the Assessment Rate (as
defined below) for such Interest Period.
The Adjusted CD Rate Reserve Percentage for
the Interest Period for each Adjusted CD Rate
Advance comprising part of the same A
Borrowing means the reserve percentage
applicable on the first day of such Interest
Period, as determined by the Agent, under
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, but
not limited to, any emergency, supplemental or
other marginal reserve requirement) for a
member bank of the Federal Reserve System in
New York City with deposits exceeding one
billion dollars with respect to liabilities
consisting of or including (among other
liabilities) U.S. dollar nonpersonal time
deposits in the United States with a maturity
equal to such Interest Period. The
Assessment Rate for the Interest Period for
each Adjusted CD Rate Advance comprising part
of the same A Borrowing means the annual
assessment rate estimated by the Agent on the
first day of such Interest Period for
determining the then current annual assessment
payable by the Agent to the Federal Deposit
Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of the Agent in
the United States. The Adjusted CD Rate for
the Interest Period for each Adjusted CD Rate
Advance comprising 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
on the first day of such Interest Period,
subject, however, to the provisions of Section
2.09.
Adjusted CD Rate Advance means an A
Advance which bears interest as provided in
Section 2.07(b).
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.
Alternate Base Rate means a fluctuating
interest rate per annum as shall be in effect
from time to time which rate per annum shall
at all times be equal to the higher of:
(a) the rate of interest
announced publicly by Citibank, N.A. in
New York, New York, from time to time, as
Citibank, N.A.'s base rate; and
(b) 1/2 of one percent per annum
above the Federal Funds Rate.
Each change in the Alternate Base Rate shall
take effect concurrently with any change in
such base rate or the Federal Funds Rate.
Applicable Lending Office means, with
respect to each Lender, such Lender's Domestic
Lending Office in the case of a Base Rate
Advance, such Lender's CD Lending Office in
the case of an Adjusted CD 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,
0.000% per annum, (ii) for an Adjusted CD Rate
Advance, 0.4375% per annum, and (iii) for a
Eurodollar Rate Advance, 0.3125% per annum.
Notwithstanding the foregoing, each of the
foregoing Applicable Margins shall be
increased by 0.25% per annum in the event
that, and at all times during which, either
the Moody's Rating shall be lower than Baa3 or
the S&P Rating shall be lower than BBB-. The
Applicable Margins shall be increased or
decreased in accordance with this definition
upon any change in the applicable ratings, and
such increased or decreased Applicable Margins
shall be effective from the date of
announcement of such new Moody's Rating or S&P
Rating, as the case may be. The Borrower
agrees to notify the Agent promptly after each
change in the Moody's Rating or the S&P
Rating.
Applicable Rate means:
(i) in the case of each Base Rate
Advance, a rate per annum equal at all times
to the sum of the Alternate Base Rate in
effect from time to time plus the Applicable
Margin in effect from time to time;
(ii) in the case of each Adjusted CD
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 Adjusted CD Rate for such Interest
Period plus the Applicable Margin in effect
from time to time during such Interest Period;
and
(iii) 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.
Available Commitment means, for each
Lender at any time on any day, the unused
portion of such Lender's Commitment, computed
after giving effect to all Extensions of
Credit theretofore made on such day and the
application of proceeds therefrom.
Available Commitments means the
aggregate of the Lenders' Available
Commitments hereunder.
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 1.01A-2
hereto, evidencing the aggregate indebtedness
of the Borrower to such Lender resulting from
a B Advance(s) made by such Lender.
B Reduction has the meaning assigned to
that term in Section 2.01.
Base Rate Advance means an A Advance
that bears interest as provided in Section
2.07(a).
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, Chicago, Illinois or
Cedar Rapids, Iowa, and, if the applicable
Business Day relates to any Eurodollar Rate
Advance, on which dealings are carried on in
the London interbank market.
CD Lending Office means, with respect
to any Lender, the office or affiliate of such
Lender specified as its CD Lending Office
opposite its name on Schedule I hereto or in
the Lender Assignment pursuant to which it
became a Lender (or, if no such office is
specified, its Domestic Lending Office) or
such other office or affiliate of such Lender
as such Lender may from time to time specify
to the Borrower and the Agent.
Capitalized Lease Obligations means
obligations to pay rent or other amounts under
any lease of (or other arrangement conveying
the right to use) real and/or personal
property which obligation is required to be
classified and accounted for as a capital
lease on a balance sheet prepared in
accordance with generally accepted accounting
principles, and for purposes hereof the amount
of such obligations shall be the capitalized
amount determined in accordance with such
principles.
Cash and Cash Equivalents means, with
respect to any Person, the aggregate amount of
the following, to the extent owned by such
Person free and clear of all Liens,
encumbrances and rights of others and not
subject to any judicial, regulatory or other
legal constraint: (i) cash on hand; (ii)
Dollar demand deposits maintained in the
United States with any commercial bank and
Dollar time deposits maintained in the United
States with, or certificates of deposit having
a maturity of one year or less issued by, any
commercial bank which has its head office in
the United States and which has a combined
capital and surplus of at least $100,000,000;
(iii) eurodollar time deposits maintained in
the United States with, or eurodollar
certificates of deposit having a maturity of
one year or less issued by, any commercial
bank having outstanding unsecured indebtedness
that is rated (on the date of acquisition
thereof) A- or better by S&P or A3 or better
by Moody's (or an equivalent rating by another
nationally-recognized credit rating agency of
similar standing if neither of such
corporations is then in the business of rating
unsecured bank indebtedness); (iv) direct
obligations of, or unconditionally guaranteed
by, the United States and having a maturity of
one year or less; (v) commercial paper rated
(on the date of acquisition thereof) A-1 or P-
1 or better by S&P or Moody's, respectively
(or an equivalent rating by another
nationally-recognized credit rating agency of
similar standing if neither of such
corporations is then in the business of rating
commercial paper), and having a maturity of
one year or less; (vi) obligations with any
Lender or any other commercial bank in respect
of the repurchase of obligations of the type
described in clause (iv), above, provided that
such repurchase obligations shall be fully
secured by obligations of the type described
in said clause (iv) and the possession of such
obligations shall be transferred to, and
segregated from other obligations owned by,
such Lender or such other commercial bank; and
(vii) preferred stock of any Person that is
rated A- or better by S&P or A3 or better by
Moody's (or an equivalent rating by another
nationally-recognized credit rating agency of
similar standing if neither of such
corporations is then in the business of rating
preferred stock of entities engaged in such
businesses).
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 November 9, 1994, 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.
Commitment means, for each Lender, the
obligation of such Lender to make Advances to
the Borrower in an amount no greater than the
amount set forth opposite such Lender's name
on the signature pages hereof or, if such
Lender has entered into one or more Lender
Assignments, set forth for such Lender in the
Register maintained by the Agent pursuant to
Section 8.07(c), in each such case as such
amount may be reduced from time to time
pursuant to Section 2.05. Commitments means
the total of the Lenders' Commitments
hereunder. The Commitments shall in no event
exceed $150,000,000.
Consolidated Capital means, with
respect to any Person, at any date of
determination, the sum of (a) Consolidated
Debt of such Person, (b) consolidated equity
of the common stockholders of such Person and
its Consolidated Subsidiaries,
(c) consolidated equity of the preference
stockholders of such Person and its
Consolidated Subsidiaries and (d) consolidated
equity of the preferred stockholders of such
Person and its Consolidated Subsidiaries, in
each case determined at such date in
accordance with generally accepted accounting
principles.
Consolidated Debt means, with respect
to any Person, at any date of determination,
the aggregate Debt of such Person and its
Consolidated Subsidiaries determined on a
consolidated basis in accordance with
generally accepted accounting principles.
Consolidated Subsidiary means, with
respect to any Person, any Subsidiary of such
Person whose accounts are or are required to
be consolidated with the accounts of such
Person in accordance with generally accepted
accounting principles.
Convert , Conversion and Converted
each refers to a conversion of Advances of one
Type into Advances of another Type, or to the
selection of a new, or the renewal of the
same, Interest Period for Advances, as the
case may be, pursuant to Section 2.09 or 2.10.
Debt means, for any Person, any and all
indebtedness, liabilities and other monetary
obligations of such Person (i) for borrowed
money or evidenced by bonds, debentures, notes
or other similar instruments, (ii) to pay the
deferred purchase price of property or
services (except trade accounts payable
arising and repaid in the ordinary course of
business), (iii) Capitalized Lease
Obligations, (iv) under reimbursement or
similar agreements with respect to letters of
credit (other than trade letters of credit)
issued to support indebtedness or obligations
of such Person or of others of the kinds
referred to in clauses (i) through (iii),
above, and clause (v), below, (v) reasonably
quantifiable obligations under direct
guaranties or indemnities, or under support
agreements, in respect of, and reasonably
quantifiable obligations (contingent or
otherwise) to purchase or otherwise acquire,
or otherwise to assure a creditor against loss
in respect of, or to assure an obligee against
failure to make payment in respect of,
indebtedness or obligations of others of the
kinds referred to in clauses (i) through (iv),
above, and (vi) in respect of unfunded vested
benefits under Plans. In determining Debt for
any Person, there shall be included accrued
interest on the principal amount thereof to
the extent such interest has accrued for more
than six months.
Default Rate means a rate per annum
equal at all times to 2% per annum above the
Applicable Rate in effect from time to time
for Base Rate Advances.
Direct Subsidiary means, with respect
to any Person, any Subsidiary directly owned
by such Person.
Dollars and the sign $ each means
lawful money of the United States.
Domestic Lending Office means, with
respect to any Lender, the office or affiliate
of such Lender specified as its Domestic
Lending Office opposite its name on Schedule
I hereto or in the Lender Assignment pursuant
to which it became a Lender, or such other
office or affiliate of such Lender as such
Lender may from time to time specify in
writing to the Borrower and the Agent.
Eligible Assignee means (a) a
commercial bank or trust company organized
under the laws of the United States, or any
State thereof; (b) a commercial bank organized
under the laws of any other country that is a
member of the OECD, or a political subdivision
of any such country, provided that such bank
is acting through a branch or agency located
in the United States; (c) the central bank of
any country that is a member of the OECD; and
(d) any other commercial bank or other
financial institution engaged generally in the
business of extending credit or purchasing
debt instruments; provided, however, that (A)
any such Person shall also (i) have
outstanding unsecured indebtedness that is
rated A- or better by S&P or A3 or better by
Moody's (or an equivalent rating by another
nationally-recognized credit rating agency of
similar standing if neither of such
corporations is then in the business of rating
unsecured indebtedness of entities engaged in
such businesses) or (ii) have combined capital
and surplus (as established in its most recent
report of condition to its primary regulator)
of not less than $250,000,000 (or its
equivalent in foreign currency), (B) any
Person described in clause (b), (c), or (d),
above, shall, on the date on which it is to
become a Lender hereunder, (i) be entitled to
receive payments hereunder without deduction
or withholding of any United States Federal
income taxes (as contemplated by Section 2.16)
and (ii) not be incurring any losses, costs or
expenses of the type for which such Person
could demand payment under Section 2.13, and
(C) any Person described in clauses (b), (c)
and (d), above, shall, in addition, be
reasonably acceptable to the Agent and the
Borrower.
ERISA means the Employee Retirement
Income Security Act of 1974, as amended from
time to time, and the regulations promulgated
and rulings issued thereunder.
ERISA Affiliate means, with respect to
any Person, any trade or business (whether or
not incorporated) which is a member of a group
of which such Person is a member and which is
under common control within the meaning of the
regulations under Section 414(b) or (c) of the
Internal Revenue Code of 1986, as amended from
time to time.
ERISA Event means (i) the occurrence of
a reportable event, within the meaning of
Section 4043 of ERISA, unless the 30-day
notice requirement with respect thereto has
been waived by the PBGC; (ii) the provision by
the administrator of any Plan of notice of
intent to terminate such Plan, pursuant to
Section 4041(a)(2) of ERISA (including any
such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA);
(iii) the cessation of operations at a
facility in the circumstances described in
Section 4062(e) of ERISA; (iv) the withdrawal
by the Borrower or an ERISA Affiliate of the
Borrower 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 an
ERISA Affiliate of the Borrower to make a
payment to a Plan required under Section
302(f)(1) of ERISA, which failure results in
the imposition of a lien for failure to make
required payments; (vi) the adoption of an
amendment to a Plan requiring the provision of
security to such Plan, pursuant to Section 307
of ERISA; or (vii) the institution by the PBGC
of proceedings to terminate a Plan, pursuant
to Section 4042 of ERISA, or the occurrence of
any event or condition which might reasonably
be expected to constitute grounds under
Section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer,
a Plan.
Eurocurrency Liabilities has the
meaning assigned to that term in Regulation D
of the Board of Governors of the Federal
Reserve System, as in effect from time to
time.
Eurodollar Lending Office means, with
respect to any Lender, the office or affiliate
of such Lender specified as its Eurodollar
Lending Office opposite its name on Schedule
I hereto or in the Lender Assignment pursuant
to which it became a Lender (or, if no such
office is specified, its Domestic Lending
Office), or such other office or affiliate of
such Lender as such Lender may from time to
time specify in writing to the Borrower and
the Agent.
Eurodollar Rate means, for each
Interest Period for each Eurodollar Rate
Advance made as part of the same 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. 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 that bears interest as provided in
Section 2.07(c).
Eurodollar Reserve Percentage of any
Lender for each Interest Period for each
Eurodollar Rate Advance means the reserve
percentage applicable to such Lender during
such Interest Period (or if more than one such
percentage shall be so applicable, the daily
average of such percentages for those days in
such Interest Period during which any such
percentage shall be so applicable) under
Regulation D or other regulations issued from
time to time by the Board of Governors of the
Federal Reserve System (or any successor) for
determining the maximum reserve requirement
(including, without limitation, any emergency,
supplemental or other marginal reserve
requirement) then applicable to such Lender
with respect to liabilities or assets
consisting of or including Eurocurrency
Liabilities having a term equal to such
Interest Period.
Events of Default has the meaning
assigned to that term in Section 6.01.
Exempt Subsidiary means each of SIMCO
and Terra Comfort, provided that SIMCO and/or
Terra Comfort shall no longer constitute an
Exempt Subsidiary if all or any substantial
part of the assets of any other Subsidiary of
the Borrower is, directly or indirectly, sold,
leased, transferred, assigned or otherwise
disposed of to SIMCO or Terra Comfort,
respectively.
Existing Banks has the meaning assigned
to that term in Preliminary Statement (1) to
this Agreement.
Existing Facility has the meaning
assigned to that term in Preliminary Statement
(1) to this Agreement.
Extension of Credit means the making of
a Borrowing. For purposes of this Agreement,
a Conversion shall not constitute an Extension
of Credit.
Federal Funds Rate means, for any
period, a fluctuating interest rate per annum
equal for each day during such period to the
weighted average of the rates on overnight
Federal funds transactions with members of the
Federal Reserve System arranged by Federal
funds brokers, as published for such day (or,
if such day is not a Business Day, for the
next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is
not so published for any day which is a
Business Day, the average of the quotations
for such day on such transactions received by
the Agent from three Federal funds brokers of
recognized standing selected by it.
Fee Letter means that certain letter
agreement, dated the date hereof, between the
Borrower and the Agent.
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 any Loan Document.
Hazardous Substance means any waste,
substance, or material identified as
hazardous, dangerous or toxic by any office,
agency, department, commission, board, bureau,
or instrumentality of the United States or of
the State or locality in which the same is
located having or exercising jurisdiction over
such waste, substance or material.
IES Utilities means IES Utilities Inc.,
an Iowa corporation, all of whose common stock
is owned on the date hereof by the Parent.
Increasing Lender means each Existing
Bank whose Commitment exceeds its Commitment
under the Existing Facility.
Information Memorandum means the
financial statements and projections with
respect to the Parent and its Subsidiaries
previously delivered (i) to the Agent by the
Parent under cover of a letter dated February
7, 1992, (ii) to the Lenders by the Parent
under cover of a letter dated December 7, 1992
and (iii) to the Agent by the Parent under
cover of a letter dated August 26, 1994.
Interest Period means, for each A
Advance made as part of the same A Borrowing,
the period commencing on the date of such A
Advance or the date of the Conversion of any A
Advance into such an A 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 30, 60, 90 or
180 days in the case of an Adjusted CD Rate
Advance, and 1, 2, 3 or 6 months in the case
of a Eurodollar Rate Advance, in each case as
the Borrower may, upon notice received by the
Agent not later than 12:00 noon (New York City
time) (a) on the third Business Day prior to
the first day of such Interest Period in the
case of a Eurodollar Rate Advance and (b) on
the second Business Day prior to the first day
of such Interest Period in the case of an
Adjusted CD Rate Advance, select; provided,
however, that:
(i) the Borrower may not select
any Interest Period that ends after the
Termination Date;
(ii) Interest Periods commencing
on the same date for A Advances
comprising part of the same A Borrowing
shall be of the same duration; and
(iii) whenever the last day of any
Interest Period would otherwise occur on
a day other than a Business Day, the last
day of such Interest Period shall be
extended to occur on the next succeeding
Business Day, provided, in the case of
any Interest Period for a Eurodollar Rate
Advance, that if such extension would
cause the last day of such Interest
Period to occur in the next following
calendar month, the last day of such
Interest Period shall occur on the next
preceding Business Day.
Lenders means the Banks listed on the
signature pages hereof and each Eligible
Assignee that shall become a party hereto
pursuant to Section 8.07.
Lender Assignment means an assignment
and acceptance agreement entered into by a
Lender and an Eligible Assignee, and accepted
by the Agent, in substantially the form of
Exhibit 8.07.
Lien has the meaning assigned to that
term in Section 5.02(a).
Loan Documents means this Agreement,
the Notes, the Support Agreement, the Fee
Letter and all other agreements, instruments
and documents now or hereafter executed and/or
delivered pursuant hereto or thereto.
Majority Lenders means, on any date of
determination, Lenders that, collectively, on
such date (i) hold at least 66-2/3% 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
66-2/3%. 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.
Moody's means Moody's Investors
Service, Inc. or any successor thereto.
Moody's Rating means, on any date of
determination, the rating of the long-term
senior secured Debt of IES Utilities most
recently announced by Moody's.
Multiemployer Plan means a
multiemployer plan, as defined in Section
4001(a)(3) of ERISA, which is subject to Title
IV of ERISA and to which the Borrower or any
ERISA Affiliate of the Borrower is making or
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 of the Borrower and at least one
Person other than the Borrower and its ERISA
Affiliates or (ii) was so maintained and in
respect of which the Borrower or an ERISA
Affiliate of the Borrower could have liability
under Section 4064 or 4069 of ERISA in the
event such plan has been or were to be
terminated.
New Lenders means the Banks other than
the Existing Banks.
Note means an A Note or a B Note.
Notice of A Borrowing has the meaning
assigned to that term in Section 2.02(a).
Notice of B Borrowing has the meaning
assigned to that term in Section 2.03(a).
Notice of Conversion has the meaning
assigned to that term in Section 2.10.
OECD means the Organization for
Economic Cooperation and Development.
Parent means IES Industries Inc., an
Iowa corporation.
PBGC means the Pension Benefit Guaranty
Corporation (or any successor entity)
established under ERISA.
Percentage means, for any Lender on any
date of determination, the percentage obtained
by dividing such Lender's Commitment on such
day by the total of the Commitments on such
date, and multiplying the quotient so obtained
by 100%.
Person means an individual,
partnership, corporation (including a business
trust), joint stock company, trust,
unincorporated association, joint venture or
other entity, or a government or any political
subdivision or agency thereof.
Plan means a Single Employer Plan or a
Multiple Employer Plan.
PUHCA means the Public Utility Holding
Company Act of 1935, as amended from time to
time.
Reference Banks means Citibank, N.A.,
CIBC Inc. and The Sanwa Bank, Ltd., or any
additional or substitute Lenders as may be
selected from time to time to act as Reference
Banks hereunder by the Agent, the Majority
Lenders and the Borrower.
Register has the meaning assigned to
that term in Section 8.07(c).
S&P means Standard & Poor's Corporation
or any successor thereto.
S&P Rating means, on any date of
determination, the rating of the long-term
senior secured Debt of IES Utilities most
recently announced by S&P.
Senior Financial Officer means the
President, the Chief Executive Officer, the
Chief Financial Officer or the Treasurer of
the Borrower.
Significant Subsidiary means the Cedar
Rapids and Iowa City Railway Company or any
other Subsidiary of the Borrower that, on a
consolidated basis with any of its
Subsidiaries as of any date of determination,
accounts for more than 20% of the consolidated
assets (valued at book value) of the Borrower
and its Subsidiaries.
SIMCO means Southern Iowa Manufacturing
Co., an Iowa corporation, all of whose capital
stock is owned on the date hereof by the
Borrower.
Single Employer Plan means a single
employer plan, as defined in Section
4001(a)(15) of ERISA, which is subject to
Title IV of ERISA and which (i) is maintained
for employees of the Borrower or an ERISA
Affiliate of the Borrower and no Person other
than the Borrower and its ERISA Affiliates, or
(ii) was so maintained and in respect of which
the Borrower or an ERISA Affiliate of the
Borrower could have liability under Section
4069 of ERISA in the event such plan has been
or were to be terminated.
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.
Support Agreement means the Second
Amended and Restated Support Agreement, dated
as of the date hereof, between the Parent and
the Borrower, substantially in the form of
Exhibit 1.01B.
Terra Comfort means Terra Comfort
Corporation, an Iowa corporation, all of whose
capital stock is owned on the date hereof by
the Parent.
Termination Date means the earlier to
occur of (i) the third anniversary of the date
of this Agreement or such later date to which
the Termination Date is extended in accordance
with Section 2.18, and (ii) the date of
termination or reduction in whole of the
Commitments pursuant to Section 2.05 or 6.01.
Type has the meaning assigned to that
term (i) in the definition of 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.
SECTION 1.02. Computation of Time
Periods. Unless otherwise indicated, each reference in this
Agreement to a specific time of day is a reference to New York
City time. In the computation of periods of time under this
Agreement, any period of a specified number of days or months
shall be computed by including the first day or month occurring
during such period and excluding the last such day or month. In
the case of a period of time from a specified date to or
until a later specified date, the word from means from and
including and the words to and until each means to but
excluding .
SECTION 1.03. Computations of
Outstandings. Whenever reference is made in this Agreement to
the principal amount outstanding on any date under this
Agreement, such reference shall refer to the aggregate principal
amount of all Advances outstanding on such date after giving
effect to all Extensions of Credit to be made on such date and
the application of the proceeds thereof.
SECTION 1.04. Accounting Terms. All
accounting terms not specifically defined herein shall be
construed in accordance with generally accepted accounting
principles consistent with those applied in the preparation of
the financial statements referred to in Section 5(d) of the
Support Agreement.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances. (a) 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 Closing until the
Termination Date in an aggregate outstanding amount not to exceed
at any time such Lender's Available 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 Percentages (such
deemed use of the aggregate amount of the Commitments being a B
Reduction ). Each A Borrowing shall be in an aggregate amount
not less than $5,000,000 (or, if lower, the amount of the
Available Commitments) or an integral multiple of $1,000,000 in
excess thereof and shall consist of A Advances of the same Type
made on the same day by the Lenders ratably according to their
respective Percentages. Within the limits of each Lender's
Commitment and as hereinabove and hereinafter provided, the
Borrower may request Extensions of Credit hereunder, and repay or
prepay Advances pursuant to Section 2.11 and utilize the
resulting increase in the Available Commitments for further
Extensions of Credit in accordance with the terms hereof.
(b) In no event shall the Borrower be
entitled to request or receive any Extensions of Credit that
would cause the principal amount outstanding hereunder to exceed
the Commitments.
SECTION 2.02. Making the A Advances.
(a) Each A Borrowing shall be made on notice, given not later
than 12:00 noon (i) on the third Business Day prior to the date
of the proposed A Borrowing, in the case of an A Borrowing
comprised of Eurodollar Rate Advances, (ii) on the second
Business Day prior to the date of the proposed A Borrowing, in
the case of an A Borrowing comprised of Adjusted CD Rate
Advances, and (iii) on the date of the proposed A Borrowing, in
the case of an A Borrowing comprised of Base Rate Advances, in
each case by the Borrower to the Agent, which shall give to each
Lender prompt notice thereof by telecopier, telex or cable. Each
such notice of an A Borrowing (a Notice of A Borrowing ) shall
be by telecopier, telex or cable, in substantially the form of
Exhibit 2.02(a) hereto, specifying therein the requested (A) date
of such 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 Adjusted CD Rate Advances
or Eurodollar Rate Advances, initial Interest Period for each
such A Advance. Each Lender shall, before (x) 12:00 noon on the
date of such A Borrowing, in the case of an A Borrowing comprised
of Eurodollar Rate Advances or Adjusted CD Rate Advances, and (y)
1:00 P.M. on the date of such A Borrowing, in the case of an A
Borrowing comprised of Base Rate Advances, make available for the
account of its Applicable Lending Office to the Agent at its
address referred to in Section 8.02, in same day funds, such
Lender's ratable portion of such A Borrowing. After the Agent's
receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Agent will promptly make
such funds available to the Borrower at the Agent's aforesaid
address.
(b) Each Notice of 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 Adjusted CD Rate Advances or 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, 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 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.
(c) Unless the Agent shall have
received notice from a Lender prior to the date of any A
Borrowing that such Lender will not make available to the Agent
such Lender's A Advance as part of such A Borrowing, the Agent
may assume that such Lender has made such A Advance available to
the Agent on the date of such A Borrowing in accordance with
subsection (a) of this Section 2.02 and the Agent may, in
reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such
Lender shall not have so made such A Advance available to the
Agent, such Lender and the Borrower severally agree to repay to
the Agent forthwith on demand such corresponding amount, together
with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is
repaid to the Agent, at (i) in the case of the Borrower, the
interest rate applicable at the time to A Advances comprising
such A Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such
Lender's A Advance as part of such A Borrowing for purposes of
this Agreement.
(d) 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.
SECTION 2.03. The B Advances. (a) 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
date occurring 30 days prior to the Termination Date in the
manner, and subject to the terms and conditions, set forth below.
The rates of interest offered by the Lenders and accepted by the
Borrower for each B Borrowing shall be fixed rates per annum.
(i) 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 2.03(a)(i) 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 180
days following the date of such B Borrowing),
the interest payment date or dates relating
thereto, and any other terms to be applicable
to such B Borrowing, not later than 3:00 P.M.
at least one Business Day prior to the date of
the proposed B Borrowing. 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.
(ii) 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., on the date of such proposed B
Borrowing, 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 limitation contained in
subsection (d), below, 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 10:30 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.
(iii) The Borrower shall, in turn,
before 12:00 noon on the date of such proposed
B Borrowing 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, by giving written notice
to the Agent of the amount of each B
Advance (which amount 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) 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.
(iv) 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.
(v) 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
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,
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.
(vi) Unless the Agent shall have
received notice from a Lender prior to the
date of any B Borrowing in which such Lender
is required to participate that such Lender
will not make available to the Agent such
Lender's B Advance as part of such B
Borrowing, the Agent may assume that such
Lender has made such B Advance available to
the Agent on the date of such B Borrowing in
accordance with paragraph (vii), below, and
the Agent may, in reliance upon such
assumption, make available to the Borrower on
such date a corresponding amount. If and to
the extent that such Lender shall not have so
made such B Advance available to the Agent,
such Lender and the Borrower severally agree
to repay to the Agent forthwith on demand such
corresponding amount together with interest
thereon, for each day from the date such
amount is made available to the Borrower until
the date such amount is repaid to the Agent,
at (i) in the case of the Borrower, the
interest rate applicable to such B Advance and
(ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall repay to the
Agent such corresponding amount, such amount
so repaid shall constitute such Lender's B
Advance as part of such B Borrowing for
purposes of this Agreement.
(vii) 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. 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 Agent at
its address referred to in Section 8.02 such
Lender's B Advance, in same day funds. Upon
fulfillment of the applicable conditions set
forth in Article III and after receipt by the
Agent of such funds, the Agent will promptly
make such funds available to the Borrower at
the Agent's aforesaid address. 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.
(b) Each B Borrowing shall be in an
aggregate amount not less than $5,000,000 or an integral multiple
of $1,000,000 in excess thereof.
(c) 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 (e), below, prepay pursuant to Section 2.11 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.
(d) In no event shall the Borrower be
entitled to request or receive any B Advances that would cause
the principal amount outstanding hereunder to exceed the
Commitments.
(e) The Borrower shall repay to the
Agent for the account of 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.
(f) 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.
(g) 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.
SECTION 2.04. Fees. (a) The Borrower
agrees to pay to the Agent for the account of each Lender a
facility fee on the average daily Commitment of such Lender
(without giving effect to any B Reduction) from the date hereof,
in the case of each Bank, and from the effective date specified
in the Lender Assignment pursuant to which it became a Lender, in
the case of each other Lender, until the 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 December 31, 1994, and on the Termination
Date, at the rate of 0.1875% per annum.
(b) In addition to the fee provided
for in subsection (a), above, the Borrower shall pay to the
Agent, for the account of the Agent, such fees as are provided
for in the Fee Letter.
(c) The Borrower further agrees to
pay to the Agent a competitive bid auction fee of $1,000 at the
time of delivery of each Notice of B Borrowing.
SECTION 2.05. Reduction of the
Commitments. (a) The Borrower shall have the right, upon at
least three Business Days' notice to the Agent, to terminate in
whole or reduce ratably in part the unused portions of the
respective Commitments of the Lenders; provided that the
aggregate amount of the Commitments of the Lenders shall not be
reduced to an amount which is less than the aggregate principal
amount of the B Advances then outstanding; and provided, further,
that each partial reduction shall be in an aggregate amount equal
to the product of (A) $1,000,000 and (B) the number of Lenders on
the effective date of such reduction, or an integral multiple in
excess thereof.
(b) On the Termination Date, the
Commitments of the Lenders shall be reduced to zero.
SECTION 2.06. 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.
SECTION 2.07. 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:
(a) 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 shall otherwise be paid in full; provided
that any amount of principal that is not paid
when due (whether at stated maturity, by
acceleration or otherwise) shall bear
interest, from the date on which such amount
is due until such amount is paid in full,
payable on demand, at a rate per annum equal
at all times to the Default Rate.
(b) Adjusted CD Rate Advances. If
such A Advance is an Adjusted CD Rate Advance,
interest thereon shall be payable on the last
day of such Interest Period and, if the
Interest Period for such A Advance has a
duration of more than 90 days, on each day
that occurs during such Interest Period every
90 days from the first day of such Interest
Period; provided that any amount of principal
that is not paid when due (whether at stated
maturity, by acceleration or otherwise) shall
bear interest, from the date on which such
amount is due until such amount is paid in
full, payable on demand, at a rate per annum
equal at all times to the Default Rate.
(c) Eurodollar Rate Advances. If
such A Advance is a Eurodollar Rate Advance,
interest thereon shall be payable on the last
day of such Interest Period and, if the
Interest Period for such A Advance has a
duration of more than three months, on that
day of each third month during such Interest
Period that corresponds to the first day of
such Interest Period (or, if any such month
does not have a corresponding day, then on the
last day of such month); provided that any
amount of principal that is not paid when due
(whether at stated maturity, by acceleration
or otherwise) shall bear interest, from the
date on which such amount is due until such
amount is paid in full, payable on demand, at
a rate per annum equal at all times to the
Default Rate.
SECTION 2.08. Additional Interest on
Eurodollar Rate Advances. The Borrower shall pay to Agent for
the account of each Lender any costs actually incurred by such
Lender with respect to Eurodollar Rate Advances which are
attributable to such Lender's compliance with regulations of the
Board of Governors of the Federal Reserve System requiring the
maintenance of reserves with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities. Such costs
shall be paid to the Agent for the account of such Lender in the
form of additional interest on the unpaid principal amount of
each Eurodollar Rate Advance of such Lender, from the date of
such 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 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. A
certificate as to the amount of such additional interest,
submitted to the Borrower and the Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error,
provided that the determination thereof shall have been made by
such Lender in good faith.
SECTION 2.09. Interest Rate
Determination. (a) Each Reference Bank agrees to furnish to the
Agent timely information for the purpose of determining each
Adjusted CD Rate or Eurodollar Rate, as applicable. If any one
or more of the Reference Banks shall not furnish such timely
information to the Agent for the purpose of determining any such
interest rate, the Agent shall determine such interest rate on
the basis of timely information furnished by the remaining
Reference Banks.
(b) The Agent shall give prompt
notice to the Borrower and the Lenders of the applicable interest
rate determined by the Agent for purposes of Section 2.07(a), (b)
or (c), and the applicable rate, if any, furnished by each
Reference Bank for the purpose of determining the applicable
interest rate under Section 2.07(b) or (c).
(c) If fewer than two Reference Banks
furnish timely information to the Agent for determining the
Adjusted CD Rate for any Adjusted CD Rate Advances, or the
Eurodollar Rate for any Eurodollar Rate Advances, due to the
unavailability of funds to such Reference Banks in the relevant
financial markets:
(i) the Agent shall forthwith notify
the Borrower and the Lenders that the interest
rate cannot be determined for such Adjusted CD
Rate Advances or Eurodollar Rate Advances, as
the case may be;
(ii) each such Advance will
automatically, on the last day of the then
existing Interest Period therefor, Convert
into a Base Rate Advance (or if such Advance
is then a Base Rate Advance, will continue as
a Base Rate Advance); and
(iii) the obligation of the Lenders to
make, or to Convert A Advances into, Adjusted
CD Rate Advances or Eurodollar Rate Advances,
as the case may be, shall be suspended until
the Agent shall notify the Borrower and the
Lenders that the circumstances causing such
suspension no longer exist.
(d) If, with respect to any
Eurodollar Rate Advances, the Majority Lenders notify the Agent
that the Eurodollar Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Majority
Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances for such Interest Period, the Agent
shall forthwith so notify the Borrower and the Lenders,
whereupon:
(i) each Eurodollar Rate Advance will
automatically, on the last day of the then
existing Interest Period therefor, Convert
into a Base Rate Advance or, if requested by
the Borrower in accordance with Section 2.10,
an Adjusted CD Rate Advance; and
(ii) 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.
(e) If the Borrower shall fail to (i)
select the duration of any Interest Period for any Adjusted CD
Rate Advances or any Eurodollar Rate Advances in accordance with
the provisions contained in the definition of Interest Period
in Section 1.01, (ii) provide a Notice of Conversion with respect
to any Eurodollar Rate Advances or Adjusted CD Rate Advances on
or prior to 12:00 noon (A) 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
(B) on the second Business Day prior to the last day of the
Interest Period applicable thereto, in the case of a Conversion
to or in respect of Adjusted CD Rate Advances, or (iii) satisfy
the applicable conditions precedent set forth in Section 3.02
with respect to the Conversion to or in respect of any Eurodollar
Rate Advances or Adjusted CD Rate Advances, 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;
provided, however, that if, in the case of any failure by the
Borrower pursuant to clause (iii), above, the Majority Lenders do
not notify the Borrower within 30 days after such Conversion into
Base Rate Advances that they have agreed to waive, or have
decided not to waive, the applicable conditions precedent set
forth in Section 3.02 that the Borrower failed to satisfy, the
Majority Lenders shall be deemed to have waived such conditions
precedent solely with respect to the Advances so Converted, and
the Borrower shall, at any time after such 30-day period, be
permitted to Convert such Advances into Eurodollar Rate Advances
or Adjusted CD Rate Advances; and provided further, however, that
such deemed waiver shall be of no further force or effect if, at
any time after such 30-day period, the Majority Lenders notify
the Borrower that they no longer agree to waive such conditions
precedent, in which case any such Advances so Converted into
Eurodollar Rate Advances or Adjusted CD Rate Advances shall
automatically Convert into Base Rate Advances on the last day of
the then existing Interest Period therefor.
(f) 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 the product of (i) $1,000,000 and (ii)
the number of Lenders on such date, 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 the product of (i) $1,000,000
and (ii) the number of Lenders on such date, the Borrower shall
have the right to continue all such A Advances as, or to Convert
all such A Advances into, Advances of such Type having such
Interest Period.
SECTION 2.10. Voluntary Conversion of A
Advances. Subject to the applicable conditions set forth in
Section 3.02, the Borrower may on any Business Day, by delivering
a notice of Conversion (a Notice of Conversion ) to the Agent
not later than 12:00 noon (i) on the third Business Day prior to
the date of the proposed Conversion, in the case of a Conversion
to or in respect of Eurodollar Rate Advances, (ii) on the second
Business Day prior to the date of the proposed Conversion, in the
case of a Conversion to or in respect of Adjusted CD Rate
Advances and (iii) on the date of the proposed Conversion, in the
case of a Conversion to or in respect of Base Rate Advances, and
subject to the provisions of Sections 2.09 and 2.13, Convert all
A Advances of one Type comprising the same A Borrowing into
Advances of another Type; provided, however, that, in the case of
any Conversion of any Adjusted CD Rate Advances or Eurodollar
Rate Advances into Advances of another Type on a day other than
the last day of an Interest Period for such Adjusted CD Rate
Advances or Eurodollar Rate Advances, the Borrower shall be
obligated to reimburse the Lenders in respect thereof pursuant to
Section 8.04(b). Each such Notice of Conversion shall be in
substantially the form of Exhibit 2.10 and shall, within the
restrictions specified above, specify (A) the date of such
Conversion, (B) the A Advances to be Converted, (C) if such
Conversion is into Adjusted CD Rate Advances or Eurodollar Rate
Advances, the duration of the Interest Period for each such A
Advance, and (D) the aggregate amount of A Advances proposed to
be Converted.
SECTION 2.11. Optional Prepayments of
Advances. The Borrower may, upon at least three Business Day's
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 Advances comprising part of the same Borrowing in whole or
ratably in part, together with accrued interest to the date of
such prepayment on the principal amount prepaid; provided,
however, that each partial prepayment shall be in an aggregate
principal amount not less than $1,000,000 (or, if lower, the
principal amount outstanding hereunder on the date of such
prepayment) or an integral multiple of $1,000,000 in excess
thereof. In the case of any such prepayment of an Adjusted CD
Rate Advance, Eurodollar Rate Advance or a B Advance, the
Borrower shall be obligated to reimburse the Lender(s) in respect
thereof pursuant to Section 8.04(b). Except as provided in this
Section 2.11, the Borrower shall have no right to prepay any
principal amount of any Advances.
SECTION 2.12. Mandatory Prepayments.
(a) 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 (A) accrued interest to the date of such prepayment on the
principal amount repaid or prepaid and (B) in the case of
prepayments of Eurodollar Rate Advances, Adjusted CD Rate
Advances or B Advances, any amount payable to the Lenders
pursuant to Section 8.04(b).
(b) All prepayments required to be
made pursuant to this Section 2.12 shall be applied by the Agent
as follows:
(i) first, to the prepayment of
the A Advances (without reference to
minimum dollar requirements), applied to
outstanding Base Rate Advances up to the
full amount thereof before they are
applied to the ratable prepayment of
Eurodollar Rate and Adjusted CD Rate
Advances; and
(ii) second, to the prepayment of
the B Advances (without reference to
minimum dollar requirements), applied
ratably among all the Lenders holding B
Advances.
(c) In lieu of prepaying any
Eurodollar Rate Advances, Adjusted CD Rate Advances or B Advances
under any provision (other than Sections 2.14 and 6.01) of this
Agreement, the Borrower may, upon notice to the Agent, deliver
such funds to the Agent, to be held as additional cash collateral
securing the obligations hereunder and under the Notes. The
Agent shall deposit all amounts delivered to it in a non-
interest-bearing special purpose cash collateral account, to be
governed by a cash collateral agreement in form and substance
satisfactory to the Borrower and the Agent, and shall apply all
such amounts in such account against such Advances on the last
day of the Interest Period therefor. The Agent shall promptly
notify the Lenders of any election by the Borrower to deliver
funds to the Agent under this subsection (c).
SECTION 2.13. Increased Costs. (a) If,
due to either (i) the introduction of or any change (other than
any change by way of imposition or increase of reserve
requirements, in the case of Adjusted CD Rate Advances, included
in the definition of Adjusted CD Rate or, 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 Adjusted CD Rate Advances or Eurodollar Rate
Advances, then the Borrower shall from time to time, upon demand
by such Lender (with a copy of such demand to the Agent), pay to
the Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost. A
certificate as to the amount of such increased cost, submitted to
the Borrower and the Agent by such Lender, shall be conclusive
and binding for all purposes, absent manifest error, provided
that the determination thereof shall have been made by such
Lender in good faith.
(b) If any Lender determines that
compliance with any law or regulation or any guideline or request
from any central bank or other governmental authority (whether or
not having the force of law) affects or would affect the amount
of capital required or expected to be maintained by such Lender
or any corporation controlling such Lender and that the amount of
such capital is increased by or based upon the existence of such
Lender's commitment to lend hereunder and other commitments of
this type, then, upon demand by such Lender (with a copy of such
demand to the Agent), the Borrower shall immediately pay to the
Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to
compensate such Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the
existence of such Lender's Commitment. A certificate as to such
amounts submitted to the Borrower and the Agent by such Lender,
describing in reasonable detail the manner in which such amounts
have been calculated, shall be conclusive and binding for all
purposes, absent manifest error, provided that the determination
and allocation thereof shall have been made by such Lender in
good faith.
(c) Notwithstanding the provisions of
subsections (a) or (b), above, to the contrary, no Lender shall
be entitled to demand compensation or be compensated thereunder
to the extent that such compensation relates to any period of
time more than 60 days prior to the date upon which such Lender
first notified the Borrower of the occurrence of the event
entitling such Lender to such compensation (unless, and to the
extent, that any such compensation so demanded shall relate to
the retroactive application of any event so notified to the
Borrower).
SECTION 2.14. Illegality.
Notwithstanding any other provision of this Agreement to the
contrary, if any Lender (the Affected Lender ) shall notify the
Agent and the Borrower that the introduction of or any change in
or 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 the Affected Lender or its
Eurodollar Lending Office to perform its obligations hereunder to
make Eurodollar Rate Advances or to fund or maintain Eurodollar
Rate Advances hereunder, (i) all Eurodollar Rate Advances of the
Affected Lender shall, on the fifth Business Day following such
notice from the Affected Lender, automatically be Converted into
a like number of Base Rate Advances, each in the amount of the
corresponding Eurodollar Rate Advance of the Affected Lender
being so Converted (each such Advance, as so Converted, being an
Affected Lender Advance ), and the obligation of the Affected
Lender to make, maintain, or Convert A Advances into Eurodollar
Rate Advances shall thereupon be suspended until the Agent shall
notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist, or the Affected Lender
has been replaced pursuant to Section 8.07(g), and (ii) in the
event that, on the last day of each of the then-current Interest
Periods for each Eurodollar Rate Advance (each such Advance being
an Unaffected Lender Advance ) of each of the other Lenders
(each such Lender being an Unaffected Lender ), the Agent shall
have yet to notify the Borrower and the Lenders that the
circumstances causing such suspension of the Affected Lender's
obligations as aforesaid no longer exist, or the Affected Lender
has not yet been replaced pursuant to Section 8.07(g), such
Unaffected Lender Advance shall be Converted by the Borrower in
accordance with Section 2.10 into an Advance of another Type (or,
in the event that the Borrower shall fail to duly deliver a
Notice of Conversion with respect thereto, into a Base Rate
Advance), and the obligation of such Unaffected Lender to make,
maintain, or Convert A Advances into Eurodollar Rate Advances
shall be suspended until the Agent shall so notify the Borrower
and the Lenders, or the Affected Lender shall be so replaced.
For purposes of any prepayment under this Agreement, each
Affected Lender Advance shall be deemed to continue to be part of
the same Borrowing as the Unaffected Lender Advance to which it
corresponded at the time of the Conversion of such Affected
Lender Advance pursuant to clause (i), above.
SECTION 2.15. Payments and Computations.
(a) The Borrower shall make each payment hereunder and under the
Notes not later than 1:00 P.M. on the day when due in Dollars to
the Agent at its address referred to in Section 8.02 in same day
funds. The Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or
interest or fees ratably (other than amounts payable pursuant to
Section 2.03, 2.08, 2.12(b)(iii), 2.16 or 8.04(b)) to the Lenders
for the account of their respective Applicable Lending Offices,
and like funds relating to the payment of any other amount
payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance
of a Lender Assignment and recording of the information contained
therein in the Register pursuant to Section 8.07(d), from and
after the effective date specified in such Lender Assignment, the
Agent shall make all payments hereunder and under the Notes in
respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Lender Assignment shall make
all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) The Borrower hereby authorizes
each Lender, if and to the extent payment owed to such Lender is
not made when due hereunder 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.
(c) All computations of interest based on
the Alternate Base Rate and the Federal Funds Rate and of fees
shall be made by the Agent on the basis of a year of 365 or 366
days, as the case may be, and all computations of interest based
on the Adjusted CD Rate and the Eurodollar Rate shall be made by
the Agent, and all computations of interest pursuant to Section
2.08 shall be made by a Lender, on the basis of a year of 360
days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for
which such interest or fees are payable. Each determination by
the Agent (or, in the case of Section 2.08, by a Lender) of an
interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error, provided that such determination
shall have been made by the Agent or such Lender, as the case may
be, in good faith.
(d) Whenever any payment hereunder 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 fees, as
the case may be; provided, however, that if such extension would
cause payment of interest on or principal of Eurodollar Rate
Advances to be made in the next following calendar month, such
payment shall be made on the next preceding Business Day.
(e) Unless the Agent shall have
received notice from the Borrower prior to the date on which any
payment is due to the Lenders hereunder that the Borrower will
not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date
and the Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to
the amount then due such Lender. If and to the extent that the
Borrower shall not have so made such payment in full to the
Agent, each Lender shall repay to the Agent forthwith on demand
such amount distributed to such Lender together with interest
thereon, for each day from the date such amount is distributed to
such Lender until the date such Lender repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.16. Taxes. (a) Any and all
payments by the Borrower hereunder and under the other Loan
Documents shall be made, in accordance with Section 2.15, 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 imposes 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 ); provided,
however, that, notwithstanding the foregoing, Taxes shall not
include any taxes otherwise required to be deducted by the
Borrower pursuant to this subsection (a) as a result of
activities of any Lender or the Agent in the State of Iowa (other
than as a result, or in respect, of this Agreement). If the
Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder or under any other Loan
Document to any Lender or the Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums
payable under this Section 2.16) such Lender or the Agent (as the
case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Borrower agrees
to pay any present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or under any other Loan
Document or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or any other Loan
Document (hereinafter referred to as Other Taxes ).
(c) The Borrower will indemnify each
Lender and the Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this Section 2.16)
paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or
Other Taxes were correctly or legally asserted. This
indemnification shall be made within 30 days from the date such
Lender or the Agent (as the case may be) makes written demand
therefor. Nothing herein shall preclude the right of the
Borrower to contest any such Taxes or Other Taxes so paid, and
the Lenders in question or the Agent (as the case may be) will,
following notice from, and at the expense of, the Borrower,
reasonably cooperate with the Borrower to preserve the Borrower's
rights to contest such Taxes or Other Taxes.
(d) Within 30 days after the date of
any payment of Taxes, the Borrower will furnish to the Agent, at
its address referred to in Section 8.02, the original or a
certified copy of a receipt evidencing payment thereof.
(e) Each Lender agrees that, on or
prior to the date upon which it shall become a party hereto, and
upon the reasonable request from time to time of the Borrower or
the Agent, such Lender will deliver to the Borrower and the Agent
either (i) a statement that it is organized under the laws of a
jurisdiction within the United States or (ii) duly completed
copies of such form or forms as may from time to time be
prescribed by the United States Internal Revenue Service
indicating that such Lender is entitled to receive payments
without deduction or withholding of any United States federal
income taxes, as permitted by the Internal Revenue Code of 1986,
as amended from time to time. Each Lender that delivers to the
Borrower and the Agent the form or forms referred to in the
preceding sentence further undertakes to deliver to the Borrower
and the Agent further copies of such form or forms, or successor
applicable form or forms, as the case may be, as and when any
previous form filed by it hereunder shall expire or shall become
incomplete or inaccurate in any respect. Each Lender represents
and warrants that each such form supplied by it to the Agent and
the Borrower pursuant to this subsection (e), and not superseded
by another form supplied by it, is or will be, as the case may
be, complete and accurate.
(f) Any Lender claiming any
additional amounts payable pursuant to this Section 2.16 shall
use its best efforts (consistent with its internal policy and
legal and regulatory restrictions) to change the jurisdiction of
its Applicable Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such
additional amounts which may thereafter accrue and would not, in
the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
(g) Without prejudice to the survival
of any other agreement of the Borrower hereunder, the agreements
and obligations of the Borrower contained in this Section 2.16
shall survive the payment in full of principal and interest
hereunder and under the Notes.
SECTION 2.17. Sharing of Payments, Etc.
If any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or
otherwise) on account of the A Advances made by it (other than
pursuant to Section 2.08, 2.16 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 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 such Lender shall repay to the
purchasing Lender the purchase price to the extent of such
recovery, together with an amount equal to such Lender's ratable
share (according to the proportion of (i) the amount of such
Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid
or payable by the purchasing Lender in respect of the total
amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this
Section 2.17 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of
such participation.
SECTION 2.18. Extension of Termination
Date. (a) At least 90 but not more than 120 days before each of
November 9, 1995 and November 9, 1996, the Borrower may, by
delivering a written request to the Agent (each such request
being irrevocable), request that each Lender extend for one year
the Termination Date with respect to such Lender's Commitment.
The Agent shall, upon its receipt of such a request, promptly
notify each Lender thereof, and request that each Lender promptly
advise the Agent of its approval or rejection of such request.
(b) Upon receipt of such notification from
the Agent, each Lender may (but shall not be required to), in its
sole and absolute discretion, agree to extend the Termination
Date with respect to its Commitment for a period of one year, and
shall (should it determine to do so), no later than 60 days
following its receipt of such notification, notify the Agent of
its approval concerning such request. If any Lender shall not so
notify the Agent, such Lender shall be deemed not to have
consented to such request. The Agent shall thereupon notify the
Borrower as to the Lenders, if any, that have consented to such
request.
(c) If all of the Lenders agree to extend the
Termination Date, the Commitments shall be extended for a period
of one year, commencing on the then-scheduled Termination Date;
provided, however, that the Commitments shall be so extended
notwithstanding the existence of one or more Lenders (the
Nonextending Lenders ) which have elected not to extend (or
failed to notify the Agent of its consent to extend) their
Commitment if (i) such Nonextending Lender(s) have been replaced
in the full amount of its (or their) Commitment(s) pursuant to
Section 8.07(g) and (ii) no Event of Default or Unmatured Default
shall then have occurred and be continuing. If a Nonextending
Lender is not so replaced pursuant to Section 8.07(g), the
Commitments of all of the Lenders shall automatically terminate
on the then-scheduled Termination Date.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to
Closing. The Commitments of the Lenders shall not become
effective unless the following conditions precedent shall have
been fulfilled on or prior to November 9, 1994 (or such later
Business Day as the parties hereto may mutually agree):
(a) The Agent shall have received the
following, each dated the date of the Closing, in form and
substance satisfactory to the Lenders and (except for the Notes)
in sufficient copies for each Lender:
(i) this Agreement, duly executed by
the Borrower, each Bank and the Agent;
(ii) the A Notes payable to the order
of the Lenders, respectively, duly completed
and executed by the Borrower;
(iii) certified copies of the
resolutions of the Board of Directors of the
Borrower approving this Agreement, the Notes
and the other Loan Documents to which it is,
or is to be, a party, and of all documents
evidencing other necessary corporate action
with respect to this Agreement, the Notes and
such Loan Documents;
(iv) certified copies of the
resolutions of the Board of Directors of the
Parent approving the Support Agreement and the
other Loan Documents to which it is, or is to
be, a party, together with a certificate of
the Secretary or an Assistant Secretary of the
Parent certifying that the credit facility
evidenced by this Agreement is the only credit
facility of the Borrower having the benefit of
a guaranty or other support arrangement from
the Parent pursuant to such resolutions, and
of all documents evidencing other necessary
corporate action with respect to the Support
Agreement and such Loan Documents;
(v) 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, the Notes
and the other Loan Documents to which it is,
or is to be, a party;
(vi) a certificate of the Secretary or
an Assistant Secretary of the Parent
certifying the names, true signatures and
incumbency of the officers of the Parent
authorized to sign the Support Agreement and
the other Loan Documents to which it is, or is
to be, a party;
(vii) copies of the Certificate of
Incorporation (or comparable charter document)
and by-laws of the Borrower, together with all
amendments thereto, certified by the Secretary
or an Assistant Secretary of the Borrower;
(viii) copies of the Certificate of
Incorporation (or comparable charter document)
and by-laws of the Parent, together with all
amendments thereto, certified by the Secretary
or an Assistant Secretary of the Parent;
(ix) certified copies of all
Governmental Approvals, if any, with respect
to this Agreement and the other Loan
Documents;
(x) certified copies of the financial
statements referred to in Section 5(d) of the
Support Agreement;
(xi) the Support Agreement duly
executed by the Parent and the Borrower,
together with (A) a letter from the Parent to
the Agent affirming that the Lenders are
Lenders under the Support Agreement and (B)
proper Financing Statements (Form UCC-1 or
UCC-3) to be filed under the Uniform
Commercial Code in all jurisdictions as may be
necessary or, in the opinion of the Agent,
desirable to perfect the security interests
created by the Support Agreement;
(xii) favorable opinions of:
(A) Winthrop, Stimson, Putnam
& Roberts, special New York counsel
for the Borrower and the Parent, in
substantially the form of Exhibit
3.01(a)(xii)-1 and as to such other
matters as the Majority Lenders,
through the Agent, may reasonably
request;
(B) Stephen W. Southwick,
Vice President and General Counsel of
the Borrower and the Parent, in
substantially the form of Exhibit
3.01(a)(xii)-2 and as to such other
matters as the Majority Lenders,
through the Agent, may reasonably
request;
(C) King & Spalding, special
New York counsel to the Agent, in
substantially the form of Exhibit
3.01(a)(xii)-3 and as to such other
matters as the Majority Lenders,
through the Agent, may reasonably
request; and
(xiii) such other approvals, opinions
and documents as any Lender, through the
Agent, may reasonably request.
(b) The following statements shall be
true and correct and the Agent shall have received a certificate
of a duly authorized officer of the Borrower, dated the date of
the Closing and in sufficient copies for each Lender, stating
that:
(i) the representations and
warranties set forth in Section 4.01 of this
Agreement are true and correct on and as of
the date of the Closing as though made on and
as of such date, and
(ii) no event has occurred and is
continuing that constitutes an Unmatured
Default or an Event of Default.
(c) The Agent shall have received a
certificate (the statements in which shall be true) of a duly
authorized officer of the Parent, dated the date of the Closing
and in sufficient copies for each Lender, stating that the
representations and warranties set forth in Section 5 of the
Support Agreement are true and correct on and as of the date of
the Closing as though made on and as of such date.
(d) 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.
(e) Each New Lender and Increasing
Lender shall, on the date of the Closing, have purchased by
assignment from the Existing Banks that are parties hereto such
portion of the A Advances owing to them as shall be designated by
the Agent such that, after giving effect to all such purchases
and assignments, the outstanding A Advances owing to each Lender
shall equal such Lender's Percentage of the aggregate amount of A
Advances owing to all Lenders.
SECTION 3.02. 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,
(a) 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
therefrom shall constitute a representation and warranty by the
Borrower that, on the date of such A Borrowing, such statements
are true and correct):
(i) the representations and
warranties contained in Section 4.01
(excluding those contained in subsections (e),
(f), (g), (h) and (j) thereof if such A
Borrowing does not increase the aggregate
outstanding principal amount of A Advances
over the aggregate outstanding principal
amount of all Advances immediately prior to
making such A Borrowing) and in Section 5 of
the Support Agreement are true and correct on
and as of the date of such A Borrowing, before
and after giving effect to the application of
the proceeds therefrom, as though made on and
as of such date; and
(ii) no event has occurred and is
continuing, or would result from such A
Borrowing or from the application of the
proceeds therefrom, which constitutes an Event
of Default or an Unmatured Default; and
(b) the Agent shall have received
such other approvals, opinions, or documents as the Agent, or the
Majority Lenders through the Agent, may reasonably request, and
such approvals, opinions, and documents shall be satisfactory in
form and substance to the Agent.
SECTION 3.03. Conditions Precedent to
Each 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 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 therefrom shall
constitute a representation and warranty by the Borrower that, on
the date of such B Borrowing, such statements are true and
correct):
(i) the representations and
warranties contained in Section 4.01
(excluding those contained in subsections (e),
(f), (g), (h) and (j) thereof if such B
Borrowing does not increase the aggregate
amount of Advances over the aggregate amount
of all Advances outstanding immediately prior
to such B Borrowing) and in Section 5 of the
Support Agreement are true and 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
(ii) 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 the Agent, or the Majority Lenders
through the Agent, may reasonably request, and such approvals,
opinions, and documents shall be satisfactory in form and
substance to the Agent.
SECTION 3.04. Reliance on Certificates.
The Lenders and the Agent shall be entitled to rely conclusively
upon the certificates delivered from time to time by officers of
the Borrower and the Parent as to the names, incumbency,
authority and signatures of the respective Persons named therein
until such time as the Agent may receive a replacement
certificate, in form acceptable to the Agent, from an officer of
such Person identified to the Agent as having authority to
deliver such certificate, setting forth the names and true
signatures of the officers and other representatives of such
Person thereafter authorized to act on behalf of such Person.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and
Warranties of the Borrower. The Borrower represents and warrants
as follows:
(a) The Borrower and each of its
Subsidiaries is a corporation duly organized, validly existing
and in good standing under the laws of the state of its
incorporation and is duly qualified to do business in, and is in
good standing in, all other jurisdictions where the nature of its
business or the nature of property owned or used by it makes such
qualification necessary (except where the failure to so qualify
would not have a material adverse affect on the business,
financial condition, operations, results of operations or
prospects of the Borrower and its Subsidiaries, taken as a
whole).
(b) The execution, delivery and
performance by the Borrower of this Agreement, the Notes and the
other Loan Documents to which it is or will be a party are within
the Borrower's corporate powers, have been duly authorized by all
necessary corporate action, and do not and will not contravene
(i) the Borrower's charter or by-laws, (ii) law, or (iii) any
legal or contractual restriction binding on or affecting the
Borrower; and such execution, delivery and performance do not and
will not result in or require the creation of any Lien (other
than pursuant to the Loan Documents) upon or with respect to any
of its properties.
(c) No Governmental Approval is
required.
(d) This Agreement is, and each other
Loan Document to which the Borrower will be a party when executed
and delivered hereunder will be, legal, valid and binding
obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms, subject to the
qualifications, however, that the enforcement of the rights and
remedies herein and therein is subject to bankruptcy and other
similar laws of general application affecting rights and remedies
of creditors and that the remedy of specific performance or of
injunctive relief is subject to the discretion of the court
before which any proceedings therefor may be brought.
(e) Since December 31, 1993, there
has been no material adverse change in the business, financial
condition, operations, results of operations or prospects of the
Borrower and its Subsidiaries, taken as a whole, or in the
Borrower's ability to perform its obligations under this
Agreement or any other Loan Document to which it is or will be a
party.
(f) The pro forma unaudited
consolidated and consolidating balance sheets of the Borrower and
its Subsidiaries as at December 31, 1993, and the related pro
forma unaudited consolidated and consolidating statements of
income of the Borrower and its Subsidiaries for the fiscal year
then ended, and the unaudited consolidated and consolidating
balance sheets of the Borrower and its Subsidiaries as at June
30, 1994 and the related unaudited consolidated and consolidating
statements of income for the six-month period then ended, copies
of each of which have been furnished to each Bank, fairly present
(subject, in the case of such balance sheets and statements of
income for the six months ended June 30, 1994, to year-end
adjustments) the consolidated financial condition of the Borrower
and its Subsidiaries as at such dates and the consolidated
results of operations of the Borrower and its Subsidiaries for
the periods ended on such dates, all in accordance, in all
material respects, with generally accepted accounting principles
consistently applied (except that the financial condition and
results of operations of Terra Comfort are reflected in such
balance sheets and statements of income although it is not, as of
the date hereof, a Subsidiary of the Borrower).
(g) Except as disclosed in the
Parent's Report on Form 10-K for the year ended December 31, 1993
and Report on Form 10-Q for the period ended June 30, 1994, there
is no pending or threatened action or proceeding affecting the
Borrower or any of its Subsidiaries or properties before any
court, governmental agency or arbitrator, that might reasonably
be expected to materially adversely affect (i) the business,
financial condition, results of operations or prospects of the
Borrower and its Subsidiaries, taken as a whole, or (ii) the
ability of the Borrower to perform its obligations under this
Agreement or any other Loan Document to which the Borrower or the
Parent is or is to be a party; and since June 30, 1994 there have
been no material adverse developments in any action or proceeding
so disclosed.
(h) No ERISA Event has occurred or is
reasonably expected to occur with respect to any Plan of the
Borrower or any of its ERISA Affiliates which would result in a
material liability to the Borrower. Since the date of the most
recent Schedule B (Actuarial Information) to the annual report of
Plans maintained by the Borrower (Form 5500 Series), if any,
there has been no material adverse change in the funding status
of the Plans referred to therein and 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.
(i) The Support Agreement is in full
force and effect without having been amended, modified, waived or
terminated in any manner, except in each case in accordance with
the terms thereof.
(j) The Borrower has filed all tax
returns (Federal, state and local) required to be filed and paid
all taxes shown thereon to be due, including interest and
penalties, or, to the extent the Borrower is contesting in good
faith an assertion of liability based on such returns, has
provided adequate reserves for payment thereof in accordance with
generally accepted accounting principles.
(k) Following application of the
proceeds of each Advance, not more than 25 percent of the value
of the assets of the Borrower and its Subsidiaries on a
consolidated basis will be margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal
Reserve System).
(l) The Borrower is not an
investment company or a company controlled by an investment
company , within the meaning of the Investment Company Act of
1940, as amended.
(m) As of the date hereof, the
Borrower is not a holding company within the meaning of PUHCA.
(n) From and after the date upon
which, and at all times during which, any Subsidiary of the
Borrower shall be a public-utility company within the meaning
of PUHCA, the Borrower will be a holding company within the
meaning of PUHCA, but the Borrower and its Subsidiaries will be
exempt from the provisions of that Act, except Section 9(a)(2)
thereof, by virtue of having filed with the Securities and
Exchange Commission a Statement by Holding Company Claiming
Exemption Under Rule U-2 from the Provisions of the Public
Utility Holding Company Act of 1935 on Form U-3A-2.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So
long as any amount in respect of any Note shall remain unpaid or
any Lender shall have any Commitment, the Borrower will, unless
the Majority Lenders shall otherwise consent in writing:
(a) Payment of Taxes, Etc. Pay and
discharge, and cause each of its Subsidiaries to pay and
discharge, before the same shall become delinquent, all taxes,
assessments and governmental charges, royalties or levies imposed
upon it or upon its property except, in the case of taxes, to the
extent the Borrower or such Subsidiary is contesting the same in
good faith and by appropriate proceedings and has set aside
adequate reserves for the payment thereof in accordance with
generally accepted accounting principles.
(b) Maintenance of Insurance.
Maintain, or cause to be maintained, insurance covering the
Borrower and each of its Subsidiaries and their respective
properties in effect at all times in such amounts and covering
such risks as is usually carried by companies of a similar size
(based on the aggregate book value of the Parent's assets, as
determined on a consolidated basis in accordance with generally
accepted accounting principles consistently applied), engaged in
similar businesses and owning similar properties in the same
general geographical area in which the Borrower and each such
Subsidiary operates, either with reputable insurance companies
or, in whole or in part, by establishing reserves of one or more
insurance funds, either alone or with other corporations or
associations.
(c) Preservation of Existence, Etc.
Preserve and maintain, and cause each of its Subsidiaries to
preserve and maintain, its corporate existence, material rights
(statutory and otherwise) and franchises; provided, however, that
neither the Borrower nor any of its Subsidiaries shall be
required to preserve and maintain any such right or franchise,
and no such Subsidiary shall be required to preserve and maintain
its corporate existence, unless the failure to do so would have a
material adverse effect on the business, financial condition,
operations, results of operations or prospects of the Borrower
and its Subsidiaries, taken as a whole, or on the Borrower's
ability to perform its obligations under this Agreement or any
other Loan Document to which it is or will be a party.
(d) Compliance with Laws, Etc.
Comply, and cause each of its Subsidiaries to comply, with the
requirements of all applicable laws, rules, regulations and
orders of any governmental authority, including without
limitation any such laws, rules, regulations and orders relating
to zoning, environmental protection, use and disposal of
Hazardous Substances, land use, ERISA, construction and building
restrictions, and employee safety and health matters relating to
business operations, the non-compliance with which would have a
material adverse effect on the business, financial condition,
operations, results of operations or prospects of the Borrower
and its Subsidiaries, taken as a whole, or on the Borrower's
ability to perform its obligations under this Agreement or any
other Loan Document to which it is or will be a party.
(e) Inspection Rights. At any time
and from time to time upon reasonable notice, permit or arrange
for the Agent, the Lenders and their respective agents and
representatives to examine and make copies of and abstracts from
the records and books of account of, and the properties of, the
Borrower and each of its Subsidiaries, and to discuss the
affairs, finances and accounts of the Borrower and its
Subsidiaries with the Borrower and its Subsidiaries and their
respective officers, directors and accountants.
(f) Keeping of Books. Keep, and
cause its Subsidiaries to keep, proper records and books of
account, in which full and correct entries shall be made of all
financial transactions of the Borrower and its Subsidiaries and
the assets and business of the Borrower and its Subsidiaries, in
accordance with generally accepted accounting principles
consistently applied.
(g) Maintenance of Properties, Etc.
Maintain, and cause each of its Subsidiaries to maintain, good
and marketable title to, and preserve, maintain, develop, and
operate in substantial conformity with all laws and material
contractual obligations, all of its properties which are used or
useful in the conduct of its business in good working order and
condition, ordinary wear and tear excepted, except where the
failure to do so would not have a material adverse effect on the
business, financial condition, operations, results of operations
or prospects of the Borrower and its Subsidiaries, taken as a
whole, or on the Borrower's ability to perform its obligations
under this Agreement or any other Loan Document to which it is or
will be a party.
(h) Reporting Requirements. Furnish
to each Lender:
(i) as soon as possible and in
any event within five Business Days after the
occurrence of each Unmatured Default or Event
of Default continuing on the date of such
statement, a statement of a Senior Financial
Officer setting forth details of such
Unmatured Default or Event of Default and the
action that the Borrower proposes to take with
respect thereto;
(ii) as soon as available and in
any event within 60 days after the end of each
of the first three quarters of each fiscal
year of the Borrower, a consolidated balance
sheet of the Borrower and its Subsidiaries as
at the end of such quarter and consolidated
statements of income, retained earnings and
cash flows of the Borrower and its
Subsidiaries for the period commencing at the
end of the previous fiscal year and ending
with the end of such quarter, all in
reasonable detail and duly certified (subject
to year-end audit adjustments) by a Senior
Financial Officer as having been prepared in
accordance (in all material respects) with
generally accepted accounting principles
consistent with those applied in the
preparation of the financial statements
referred to in Section 5(d) of the Support
Agreement, together with (A) a certificate of
said officer stating that no Unmatured Default
or Event of Default has occurred and is
continuing or, if an Unmatured Default or
Event of Default has occurred and is
continuing, a statement as to the nature
thereof and the action that the Borrower
proposes to take with respect thereto, and (B)
a schedule in form satisfactory to the
Majority Lenders of the computations used by
the Borrower in determining compliance with
the covenant contained in Section 5.02(j);
(iii) as soon as available and in
any event within 120 days after the end of
each fiscal year of the Borrower, a copy of
the consolidated balance sheet of the Borrower
and its Subsidiaries as at the end of such
fiscal year and consolidated statements of
income, retained earnings and cash flows of
the Borrower and its Subsidiaries for such
fiscal year, in each case (x) accompanied by
the audit report of Arthur Andersen & Co. or
another nationally-recognized independent
public accounting firm acceptable to the
Majority Lenders if at any time during such
fiscal year the Moody's Rating was Baa2 or
lower or the S&P Rating was BBB or lower or
(y) in reasonable detail and duly certified by
a Senior Financial Officer as having been
prepared in accordance (in all material
respects) with generally accepted accounting
principles consistent with those applied in
the preparation of the financial statements
referred to in Section 5(d) of the Support
Agreement, together with (A) a certificate of
a Senior Financial Officer stating that no
Unmatured Default or Event of Default has
occurred and is continuing or, if an Unmatured
Default or Event of Default has occurred and
is continuing, a statement as to the nature
thereof and the action that the Borrower
proposes to take with respect thereto, and (B)
a schedule in form satisfactory to the
Majority Lenders of the computations used by
the Borrower or such accounting firm, as
applicable, in determining, as of the end such
fiscal year, compliance with the covenant
contained in Section 5.02(j);
(iv) as soon as possible and in
any event (A) within 30 days after any ERISA
Event described in clause (i) of the
definition of ERISA Event with respect to any
Plan of the Borrower or any ERISA Affiliate of
the Borrower has occurred and (B) within 10
days after any other ERISA Event with respect
to any Plan of the Borrower or any ERISA
Affiliate of the Borrower has occurred, a
statement of a Senior Financial Officer
describing such ERISA Event and the action, if
any, which the Borrower or such ERISA
Affiliate proposes to take with respect
thereto;
(v) 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;
(vi) promptly and in any event
within 30 days after the filing thereof with
the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the
annual report (Form 5500 Series) with respect
to each Plan (if any) to which the Borrower or
any ERISA Affiliate of the Borrower is a
contributing employer;
(vii) promptly after receipt
thereof by the Borrower or any ERISA Affiliate
of the Borrower from a Multiemployer Plan
sponsor, a copy of each notice received by the
Borrower or such ERISA Affiliate concerning
the imposition or amount of withdrawal
liability in an aggregate principal amount of
at least $250,000 pursuant to Section 4202 of
ERISA in respect of which the Borrower or such
ERISA Affiliate is reasonably expected to be
liable;
(viii) promptly after the Borrower
becomes aware of the occurrence thereof,
notice of all actions, suits, proceedings or
other events (A) of the type described in
Section 4.01(g) or (B) for which the Agent,
the Lenders will be entitled to indemnity
under Section 8.04(c);
(ix) promptly after the sending or
filing thereof, copies of all such proxy
statements, financial statements, and reports
which the Borrower sends to its public
security holders (if any), and copies of all
regular, periodic and special reports, and all
registration statements and periodic or
special reports, if any, which the Borrower or
the Parent files with the Securities and
Exchange Commission or any governmental
authority which may be substituted therefor,
or with any national securities exchange; and
(x) promptly after requested,
such other information respecting the
business, properties, results of operations,
prospects, revenues, condition or operations,
financial or otherwise, of the Borrower or any
of its Subsidiaries as the Agent or any Lender
through the Agent may from time to time
reasonably request.
(i) Further Assurances. At the
expense of the Borrower, promptly execute and deliver, or cause
to be promptly executed and delivered, all further instruments
and documents, and take and cause to be taken all further
actions, that may be necessary or that the Majority Lenders
through the Agent may reasonably request to enable the Lenders
and the Agent to enforce the terms and provisions of this
Agreement and to exercise their rights and remedies hereunder or
under any other Loan Document. In addition, the Borrower will
use all reasonable efforts to duly obtain Governmental Approvals
required from time to time on or prior to such date as the same
may become legally required, and thereafter to maintain all such
Governmental Approvals in full force and effect.
SECTION 5.02. Negative Covenants. So
long as any amount in respect of any Note shall remain unpaid or
any Lender shall have any Commitment, the Borrower will not,
without the written consent of the Majority Lenders:
(a) Liens, Etc. Create, incur,
assume, or suffer to exist, or permit any of its Subsidiaries to
create, incur, assume, or suffer to exist, any lien, security
interest, or other charge or encumbrance (including the lien or
retained security title of a conditional vendor) of any kind, or
any other type of arrangement intended or having the effect of
conferring upon a creditor a preferential interest upon or with
respect to any of its properties of any character (including,
without limitation, accounts) (any of the foregoing being
referred to herein as a Lien ), excluding, however, from the
operation of the foregoing restrictions the Liens created under
the Loan Documents and the following:
(i) Liens for taxes, assessments or
governmental charges or levies to the extent
not past due;
(ii) Liens imposed by law, such as
materialmen's, mechanics', carriers',
workmen's and repairmen's liens and other
similar Liens arising in the ordinary course
of business securing obligations which are not
overdue or which are being contested in good
faith, provided that any such contested Lien
securing an amount claimed in excess of
$1,000,000 shall be fully bonded within 90
days after the imposition of such Lien;
(iii) pledges or deposits to secure
obligations under workmen's compensation laws
or similar legislation, to secure public or
statutory obligations of the Borrower or such
Subsidiary, or to secure the utility
obligations of any such Subsidiary incurred in
the ordinary course of business;
(iv) (A) purchase money Liens upon or
in property now owned or hereafter acquired by
the Borrower or any of its Subsidiaries in the
ordinary course of business (consistent with
present practices) to secure (1) the purchase
price of such property or (2) Debt incurred
solely for the purpose of financing the
acquisition, construction or improvement of
any such property to be subject to such Liens,
or (B) Liens existing on any such property at
the time of acquisition, or extensions,
renewals or replacements of any of the
foregoing for the same or a lesser amount,
provided that no such Lien shall extend to or
cover any property other than the property
being acquired, constructed or improved and
replacements, modifications and proceeds of
such property, and no such extension, renewal
or replacement shall extend to or cover any
property not theretofore subject to the Lien
being extended, renewed or replaced;
(v) Liens on the capital stock of any
of the Borrower's single-purpose Subsidiaries
or any such Subsidiary's assets to secure the
repayment of project financing for such
Subsidiary;
(vi) attachment, judgment or other
similar Liens arising in connection with court
proceedings, provided that the execution or
other enforcement of such Liens is effectively
stayed and the claims secured thereby are
being actively contested in good faith by
appropriate proceedings or the payment of
which is covered in full (subject to customary
deductible amounts) by insurance maintained
with responsible insurance companies and the
applicable insurance company has acknowledged
its liability therefor in writing;
(vii) Liens securing obligations under
agreements entered into pursuant to the Iowa
Industrial New Jobs Training Act or any
similar or successor legislation, provided
that such obligations do not exceed $1,000,000
in the aggregate at any one time outstanding;
and
(viii) other Liens set forth in Schedule
II hereto, and any extensions or renewals of
any such Liens upon or in the same property
theretofore subject thereto.
(b) Debt. (i) Create, incur,
assume, or suffer to exist any Debt other than:
(A) Debt hereunder and under the
other Loan Documents; and
(B) other Debt of the Borrower;
provided, however, that both immediately
before and after the incurrence of any
such other Debt, the Borrower shall be in
compliance with the covenant set forth in
subsection (j), below, and the Parent
shall be in compliance with the covenant
set forth in Section 2(a) of the Support
Agreement.
(ii) Permit any of its Subsidiaries to
create, incur, assume, or suffer to exist any
Debt other than:
(A) Debt of any Person acquired
by the Borrower or any such Subsidiary
(whether by merger, stock or asset
purchase, or otherwise) that was in
effect and outstanding at the time of
acquisition;
(B) Debt owing by any such
Subsidiary to the Borrower or to any
other such Subsidiary;
(C) Debt of such Subsidiaries
under working capital lines and with
respect to Capitalized Lease Obligations
not to exceed $5,000,000 in the aggregate
at any one time outstanding (such dollar
limitation to apply to the Debt of any
Persons acquired by and merged into any
such Subsidiary to the extent of any
surviving working capital lines and
Capitalized Lease Obligations of any such
Person which shall survive such
acquisition and merger);
(D) Debt secured by Liens
permitted by Section 5.02(a)(iv) and (v);
(E) Debt under agreements entered
into pursuant to the Iowa Industrial New
Jobs Training Act or any similar or
successor legislation, provided that such
Debt does not exceed $1,000,000 in the
aggregate at any one time outstanding;
and
(F) existing Debt set forth in
Schedule III hereto;
provided, however, that both immediately before and after the
incurrence of any Debt described in clauses (A), (B), (C), (D)
and (E), above, the Borrower shall be in compliance with the
covenant set forth in subsection (j), below, and the Parent shall
be in compliance with the covenant set forth in Section 2(a) of
the Support Agreement.
(c) Compliance with ERISA. (i)
Permit to exist any accumulated funding deficiency (as defined
in Section 412(a) of the Internal Revenue Code of 1986, as
amended from time to time) (unless such deficiency exists with
respect to a Multiple Employer Plan or Multiemployer Plan and the
Borrower has no control over the reduction or elimination of such
deficiency), (ii) terminate, or permit any ERISA Affiliate of the
Borrower to terminate, any Plan of the Borrower or such ERISA
Affiliate so as to result in any material (in the opinion of the
Majority Lenders) liability of the Borrower to the PBGC, or (iii)
permit to exist any occurrence of any Reportable Event (as
defined in Title IV of ERISA), or any other event or condition,
which presents a material (in the opinion of the Majority
Lenders) risk of such a termination by the PBGC of any Plan of
the Borrower or such ERISA Affiliate and such a material
liability to the Borrower.
(d) Transactions with Affiliates.
Enter into, or permit any of its Subsidiaries to enter into, any
transaction with an Affiliate of the Borrower, unless such
transaction is on terms no less favorable to the Borrower or such
Subsidiary, as the case may be, than if the transaction had been
negotiated in good faith on an arm's length basis with a Person
which was not an Affiliate of the Borrower.
(e) Mergers, Etc. (i) Merge with or
into or consolidate with or into any other Person, except that
the Borrower may merge with or into or consolidate with or into
any of its Subsidiaries or the Parent, provided that immediately
after giving effect thereto, (A) no event shall occur and be
continuing which constitutes an Unmatured Default or an Event of
Default, (B) the Borrower is the surviving corporation or, with
respect to any merger or consolidation of the Borrower with or
into the Parent, the surviving (if not the Borrower) or resulting
corporation shall have expressly assumed the obligations of the
Borrower under this Agreement, the Notes and the other Loan
Documents to which the Borrower is a party, (C) the Parent
(unless it shall be the surviving corporation) shall reaffirm its
obligations to the surviving or resulting corporation under the
Support Agreement and (D) the Borrower shall not be liable with
respect to any Debt or allow its property to be subject to any
Lien which it could not become liable with respect to or allow
its property to become subject to under this Agreement or any
other Loan Document on the date of such transaction, and (ii)
permit any of its Subsidiaries to merge with or into or
consolidate with or into any other Person, except that any such
Subsidiary may merge with or into any other Person, provided that
immediately after giving effect thereto, (x) the surviving
corporation is a Subsidiary of the Borrower, (y) no event shall
occur and be continuing which constitutes an Unmatured Default or
an Event of Default and (z) the Borrower or any of its
Subsidiaries shall not be liable with respect to any Debt or
allow its property to be subject to any Lien which it could not
become liable with respect to or allow its property to become
subject to under this Agreement or any other Loan Document on the
date of such transaction.
(f) Sales, Etc., of Assets. Sell,
lease, transfer, assign or otherwise dispose of all or any
substantial part of its assets, or permit any of its Subsidiaries
(other than the Exempt Subsidiaries) to sell, lease, transfer,
assign or otherwise dispose of all or any substantial part of its
assets, except (i) sales, leases, transfers and assignments from
one Subsidiary of the Borrower to another such Subsidiary, (ii)
in any transaction in which the proceeds from such sale, lease,
transfer, assignment or disposition are solely in Cash and Cash
Equivalents and such proceeds are (A) reinvested, or held for no
more than 180 days in Cash and Cash Equivalents pending
reinvestment, in lines of business (other than real estate) in
which the Borrower or any of its Subsidiaries is engaged in at
the time of the Closing, (B) applied as a reduction of the
Commitments and an optional prepayment pursuant to Sections 2.05
and 2.11, respectively, or (C) applied to pay or prepay Debt
incurred by the Borrower or any such Subsidiary in connection
with the project comprising such assets, or (iii) in connection
with a sale and leaseback transaction entered into by any
Subsidiary of the Borrower, provided in each case that no
Unmatured Default or Event of Default shall have occurred and be
continuing after giving effect thereto, and provided, further,
that, notwithstanding the foregoing, so long as no Unmatured
Default or Event of Default shall have occurred and be
continuing, the Borrower and its Subsidiaries may sell, lease,
transfer, assign or otherwise dispose of up to $5,000,000 (in
book value) in the aggregate of their collective assets
(exclusive of the assets and capital stock of the Exempt
Subsidiaries) during any 12-calendar-month period in any single
or series of transactions, whether or not related.
(g) Modification of Support
Agreement. Agree to amend, modify, terminate, or waive any
provision of the Support Agreement.
(h) Letter of Credit Obligations.
Incur, or permit any of its Subsidiaries to incur, any
indebtedness, liabilities or obligations (whether contingent or
otherwise) in excess of $1,000,000 in the aggregate at any one
time outstanding under reimbursement or similar agreements with
respect to letters of credit issued to support obligations that
do not constitute Debt.
(i) Maintenance of Ownership of
Significant Subsidiaries. Sell, assign, transfer, pledge or
otherwise dispose of any shares of capital stock of any of its
Significant Subsidiaries or any warrants, rights or options to
acquire such capital stock, or permit any of its Significant
Subsidiaries to issue, sell or otherwise dispose of any shares of
its capital stock or the capital stock of any other of its
Subsidiaries or any warrants, rights or options to acquire such
capital stock, except (and only to the extent) as may be
necessary to give effect to a transaction permitted by subsection
(e), above.
(j) Consolidated Leverage Ratio.
Allow the ratio of (i) the sum of (A) Consolidated Debt of the
Borrower and (B) Debt of the Parent to (ii) the sum of (A)
Consolidated Capital of the Borrower and (B) Debt of the Parent,
to exceed 0.65 to 1.00 at any time.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any
of the following events (each an Event of Default ) shall occur
and be continuing after the applicable grace period and notice
requirement (if any):
(a) The Borrower shall fail to pay
any principal of any Note when the same becomes due and payable;
or
(b) The Borrower shall fail to pay
any interest on any Note or any other amount due under this
Agreement for two days after the same becomes due; or
(c) Any representation or warranty
made by or on behalf of the Borrower in any Loan Document or in
any certificate or other writing delivered pursuant thereto shall
prove to have been incorrect in any material respect when made or
deemed made; or
(d) Any representation or warranty
made by or on behalf of the Parent in the Support Agreement or in
any certificate or other writing delivered pursuant thereto shall
prove to have been incorrect in any material respect when made or
deemed made; or
(e) The Borrower shall fail to
perform or observe any term or covenant on its part to be
performed or observed contained in Section 5.02 (other than
subsections (c), (d), (g), (i) or (j) thereof), or the Parent
shall fail to perform or observe any term or covenant on its part
to be performed or observed contained in Section 1, 2 or 4 of the
Support Agreement; or
(f) The Borrower shall fail to
perform or observe any other term or covenant on its part to be
performed or observed contained in Section 5.01, Section 5.02 or
in any other Loan Document, or the Parent shall fail to perform
or observe any other term or covenant on its part to be performed
or observed contained in the Support Agreement, and any such
failure shall remain unremedied, after written notice thereof
shall have been given to the Borrower by the Agent, for a period
of 30 days; or
(g) The Parent or any of its
Subsidiaries (including the Borrower but excluding IES Utilities)
shall fail to pay any of its Debt (including any interest or
premium thereon but excluding Debt evidenced by the Notes)
aggregating $5,000,000 or more when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise)
and such failure shall continue after the applicable grace
period, if any, specified in any agreement or instrument relating
to such Debt; or any other default under any agreement or
instrument relating to any such Debt, or any other event, shall
occur and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of
such default or event is to accelerate, or to permit the
acceleration of, the maturity of such Debt; or any such Debt
shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment)
prior to the stated maturity thereof as a result of a default or
other similar adverse event; or
(h) IES Utilities shall fail to pay
any of its Debt (including any interest or premium thereon)
aggregating $5,000,000 or more when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise)
and such failure shall continue after the applicable grace
period, if any, specified in any agreement or instrument relating
to such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid (other than by a regularly
scheduled required prepayment) prior to the stated maturity
thereof as a result of a default or other similar adverse event;
or
(i) The Borrower, the Parent or IES
Utilities shall generally not pay its debts as such debts become
due, or shall admit in writing its inability to pay its debts
generally, or shall make an assignment for the benefit of
creditors; or any proceeding shall be instituted by or against
the Borrower, the Parent or IES Utilities seeking to adjudicate
it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of its debts under any law relating to bankruptcy,
insolvency, or reorganization or relief of debtors, or seeking
the entry of an order for relief or the appointment of a
receiver, trustee, or other similar official for it or for any
substantial part of its property and, in the case of a proceeding
instituted against the Borrower, the Parent or IES Utilities,
either such proceeding shall remain undismissed or unstayed for a
period of 60 days or any of the actions sought in such proceeding
(including without limitation the entry of an order for relief
against the Borrower, the Parent or IES Utilities or the
appointment of a receiver, trustee, custodian or other similar
official for the Borrower, the Parent or IES Utilities or any of
its property) shall occur; or the Borrower, the Parent or IES
Utilities shall take any corporate or other action to authorize
any of the actions set forth above in this subsection (i); or
(j) Any judgment or order for the
payment of money equal to or in excess of $5,000,000 shall be
rendered against the Parent or any of its Direct Subsidiaries
(including, without limitation, the Borrower and IES Utilities)
or their respective properties and either (i) enforcement
proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 30
consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(k) The Support Agreement, after
delivery thereof under Article III, shall for any reason, except
to the extent permitted by the terms thereof, cease to be valid
and binding on the Parent or the Borrower; or
(l) 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; or
(m) Any ERISA Event shall have
occurred with respect to a Plan which could reasonably be
expected to result in a material liability to the Borrower, and,
30 days after notice thereof shall have been given to the
Borrower by the Agent or any Lender, such ERISA Event shall still
exist;
then, and in any such event, the Agent (i) shall at the request,
or may with the consent, of the holders of at least 66-2/3% in
principal amount of the A Advances then outstanding or, if no A
Advances are then outstanding, Banks having at least 66-2/3% 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 66-2/3% in principal
amount of the Advances then outstanding or, if no Advances are
then outstanding, Lenders having at least 66-2/3% of the
Commitments, by notice to the Borrower, declare the Notes (if
any), 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.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action.
Each Lender hereby appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under
this Agreement as are delegated to the Agent by the terms hereof,
together with such powers as are reasonably incidental thereto.
As to any matters not expressly provided for by this Agreement or
any other Loan Document (including, without limitation,
enforcement or collection of the 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. The
Agent shall be deemed to have exercised reasonable care in the
administration and enforcement of this Agreement and the other
Loan Documents if it undertakes such administration and
enforcement in a manner substantially equal to that which
Citibank, N.A. accords credit facilities similar to the credit
facility hereunder for which it is the sole lender.
SECTION 7.02. Agent's Reliance, Etc.
Neither the Agent nor any of its directors, officers, agents or
employees shall be liable for any action taken or omitted to be
taken by it or them under or in connection with this Agreement or
any other Loan Document, except for its or their own gross
negligence or willful misconduct. Without limitation of the
generality of the foregoing, the Agent: (i) may treat the payee
of any Note as the holder thereof until the Agent receives and
accepts a Lender Assignment entered into by the Lender which is
the payee of such Note, as assignor, and an Eligible Assignee, as
assignee, as provided in Section 8.07; (ii) may consult with
legal counsel (including counsel for the Borrower), independent
public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation
to any Lender and shall not be responsible to any Lender for any
statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement or any other
Loan Document; (iv) shall not have any duty to ascertain or to
inquire as to the performance or observance of any of the terms,
covenants or conditions of this Agreement or any other Loan
Document on the part of the Borrower or the Parent or to inspect
the property (including the books and records) of the Borrower or
the Parent; (v) shall not be responsible to any Lender for the
due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, any other Loan Document
or any other instrument or document furnished pursuant hereto or
thereto; and (vi) shall incur no liability under or in respect of
this Agreement or any other Loan Document by acting upon any
notice, consent, certificate or other instrument or writing
(which may be by telecopier, telegram, cable or telex) believed
by it to be genuine and signed or sent by the proper party or
parties.
SECTION 7.03. Citibank, N.A. and
Affiliates. With respect to its Commitment, the Advances made by
it and the Notes issued to it, Citibank, N.A. shall have the same
rights and powers under this Agreement as any other Lender and
may exercise the same as though it were not the Agent; and the
term Bank or Banks and Lender or Lenders shall, unless
otherwise expressly indicated, include Citibank, N.A. in its
individual capacity. Citibank, N.A. 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, the Parent any of its Subsidiaries and any Person
who may do business with or own securities of the Borrower, the
Parent or any such Subsidiary, all as if Citibank, N.A. were not
the Agent and without any duty to account therefor to the
Lenders.
SECTION 7.04. Lender Credit Decision.
Each Lender acknowledges that it has, independently and without
reliance upon the Agent or any other Lender and based on the
financial statements referred to in Section 5(d) of the Support
Agreement and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to
enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any
other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this
Agreement.
SECTION 7.05. Indemnification. The
Lenders agree to indemnify the Agent (to the extent not
reimbursed by the Borrower), ratably according to (a) on or
before the Termination Date, 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 Percentages
of the Lenders), or (b) after the Termination Date, the
respective principal amounts of the Notes then held by each of
them (or if no Notes are at the time outstanding or if any Notes
are held by Persons which are not Lenders, ratably according to
the respective unpaid principal amounts of the Advances made by
each Lender), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted
against the Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent under this
Agreement, provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including counsel
fees) incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the
Agent is not reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Agent. The
Agent may resign at any time by giving written notice thereof to
the Lenders and the Borrower and may be removed at any time with
or without cause by the Majority Lenders, with any such
resignation or removal to become effective only upon the
appointment of a successor Agent pursuant to this Section 7.06.
Upon any such resignation or removal, the Majority Lenders shall
have the right to appoint a successor Agent, which shall be a
Lender or shall be another commercial bank or trust company
reasonably acceptable to the Borrower organized under the laws of
the United States or of any State thereof. If no successor Agent
shall have been so appointed by the Majority Lenders, and shall
have accepted such appointment, within 30 days after the retiring
Agent's giving of notice of resignation or the Majority Lenders'
removal of the retiring Agent, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent, which shall be
a Lender or shall be another commercial bank or trust company
organized under the laws of the United States of any State
thereof reasonably acceptable to the Borrower. Upon the
acceptance of any appointment as Agent hereunder by a successor
Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations under this Agreement. After any
retiring Agent's resignation or removal hereunder as Agent, the
provisions of this Article VII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent
under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No
amendment or waiver of any provision of any Loan Document, nor
consent to any departure by the Borrower therefrom, shall in any
event be effective unless the same shall be in writing and signed
by the Majority Lenders and, in the case of any amendment, the
Borrower, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by all the Lenders, do any of
the following: (a) waive, modify or eliminate any of the
conditions specified in Article III, (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.
SECTION 8.02. Notices, Etc. All notices
and other communications provided for hereunder and under the
other Loan Documents shall be in writing (including telecopier,
telegraphic, telex or cable communication) and mailed,
telecopied, telegraphed, telexed, cabled or delivered, if to the
Borrower, at its address at 200 First Street, Cedar Rapids, Iowa
52401, Attention: Treasurer; if to the Parent, at its address at
200 First Street, Cedar Rapids, Iowa 52401, Attention: Treasurer;
if to any Bank, at its Domestic Lending Office specified opposite
its name on Schedule I hereto; if to any other Lender, at its
Domestic Lending Office specified in the Lender Assignment
pursuant to which it became a Lender; and if to the Agent, at its
address at 399 Park Avenue, New York, New York 10043, Attention:
Utilities Department Head; or, as to each party, at such other
address as shall be designated by such party in a written notice
to the other parties. All such notices and communications shall,
when mailed, telecopied, telegraphed, telexed or cabled, be
effective five days after being deposited in the mails, or when
delivered to the telegraph company, telecopied, confirmed by
telex answerback or delivered to the cable company, respectively,
except that notices and communications to the Agent pursuant to
Article II or VII shall not be effective until received by the
Agent.
SECTION 8.03. No Waiver; Remedies. No
failure on the part of any Lender or the Agent to exercise, and
no delay in exercising, any right hereunder or under any Note
shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 8.04. Costs, Expenses, Taxes and
Indemnification. (a) The Borrower agrees to pay on demand all
costs and expenses of the Agent in connection with the
preparation (including, without limitation, printing costs),
negotiation, execution, delivery, modification and amendment of
this Agreement and the other Loan Documents, and the other
documents and instruments to be delivered hereunder and
thereunder, including, without limitation, the reasonable fees
and out-of-pocket expenses of counsel for the Agent with respect
thereto and with respect to the administration of, and advising
the Agent as to its rights and responsibilities under, this
Agreement and the other Loan Documents. The Borrower further
agrees to pay on demand all costs and expenses, if any
(including, without limitation, reasonable counsel fees and
expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement
and the other Loan Documents and the other documents and
instruments to be delivered hereunder and thereunder, including,
without limitation, reasonable counsel fees and expenses in
connection with the enforcement of rights under this Section
8.04(a). In addition, the Borrower shall pay any and all stamp
and other taxes payable or determined to be payable in connection
with the execution and delivery of this Agreement and the other
Loan Documents, and the other documents and instruments to be
delivered hereunder and thereunder, and agrees to save the Agent
and each Lender harmless from and against any and all liabilities
with respect to or resulting from any delay in paying or omission
to pay such taxes.
(b) If any payment of principal of,
or Conversion of, any Adjusted CD Rate Advance, Eurodollar Rate
Advance or B Advance is made other than on the last day of the
Interest Period for such A Advance or other than on the maturity
date of such B Advance, as a result of a payment or Conversion
pursuant to Section 2.09(f), 2.10, 2.11, 2.12 or 2.14 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,
cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to
fund or maintain such Advance.
(c) The Borrower hereby agrees to
indemnify and hold each Lender, the Agent and their respective
officers, directors, employees, professional advisors and
affiliates (each, an Indemnified Person ) harmless from and
against any and all claims, damages, losses, liabilities, costs
or expenses (including reasonable attorney's fees and expenses,
whether or not such Indemnified Person is named as a party to any
proceeding or is otherwise subjected to judicial or legal process
arising from any such proceeding) which any of them may incur or
which may be claimed against any of them by any Person (except
for such claims, damages, losses, liabilities, costs and expenses
resulting from such Indemnified Person's gross negligence or
willful misconduct):
(i) by reason of or in connection
with the execution, delivery or performance of
any of the Loan Documents or any transaction
contemplated thereby, or the use by the
Borrower of the proceeds of any Extension of
Credit;
(ii) in connection with any
documentary taxes, assessments or charges made
by any governmental authority by reason of the
execution and delivery of any of the Loan
Documents; or
(iii) in connection with or resulting
from the utilization, storage, disposal,
treatment, generation, transportation, release
or ownership of any Hazardous Substance (i)
at, upon, or under any property of the
Borrower or any of its Affiliates or (ii) by
or on behalf of the Borrower or any of its
Affiliates at any time and in any place.
(d) The Borrower's obligations under
this Section 8.04 shall survive the repayment of all amounts
owing to the Lenders 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.
SECTION 8.05. Right of Set-off. (a)
Upon (i) the occurrence and during the continuance of any Event
of Default and (ii) the making of the request or the granting of
the consent by the Majority Lenders specified by Section 6.01 to
authorize the Agent to declare 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 any Loan Document and any Note
held by such Lender, irrespective of whether or not such Lender
shall have made any demand under such Loan Document 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.
(b) The Borrower agrees that it shall
have no right of set-off, deduction or counterclaim in respect of
its obligations hereunder, and that the obligations of the
Lenders hereunder are several and not joint. Nothing contained
herein shall constitute a relinquishment or waiver of the
Borrower's rights to any independent claim that the Borrower may
have against the Agent or any Lender for the Agent's or such
Lender's, as the case may be, gross negligence or wilful
misconduct, but no Lender shall be liable for the conduct of the
Agent or any other Lender, and the Agent shall not be liable for
the conduct of any Lender.
SECTION 8.06. Binding Effect. This
Agreement shall become effective when it shall have been executed
by the Borrower and the Agent and when the Agent shall have been
notified in writing by each Bank that such Bank has executed it
and thereafter shall be binding upon and inure to the benefit of
the Borrower, the Agent and each Lender and their respective
successors and assigns, except that the Borrower shall not have
the right to assign its rights hereunder or any interest herein
without the prior written consent of the Lenders.
SECTION 8.07. Assignments and
Participations. (a) Each Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations
under 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) 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, (ii) the amount of the Commitment of the
assigning Lender being assigned pursuant to each such assignment
(determined as of the date of the Lender Assignment with respect
to such assignment) shall in no event be less than the lesser of
the amount of such Lender's then remaining Commitment and
$5,000,000 (except in the case of assignments between Lenders at
the time already parties hereto), and (iii) the parties to each
such assignment shall execute and deliver to the Agent, for its
acceptance and recording in the Register, a Lender Assignment,
together with any Note or Notes subject to such assignment and a
processing and recordation fee of $2,500. Promptly following its
receipt of such Lender Assignment, Note or Notes and fee, the
Agent shall accept and record such Lender Assignment in the
Register. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each
Lender Assignment, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Lender Assignment, have
the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such
Lender Assignment, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of a Lender
Assignment covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto). Notwithstanding anything to
the contrary contained in this Agreement, any Lender may at any
time assign all or any portion of the Advances owing to it to any
Affiliate of such Lender. No such assignment, other than to an
Eligible Assignee, shall release the assigning Lender from its
obligations hereunder.
(b) By executing and delivering a
Lender Assignment, the Lender assignor thereunder and the
assignee thereunder confirm to and agree with each other and the
other parties hereto as follows: (i) other than as provided in
such Lender Assignment, such assigning Lender makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in
or in connection with any Loan Document or the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of any Loan Document or any other instrument or document
furnished pursuant thereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the Parent
or the performance or observance by the Borrower or the Parent of
any of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto; (iii) such
assignee confirms that it has received a copy of each Loan
Document, together with copies of the financial statements
referred to in Section 5(d) of the Support Agreement and such
other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such
Lender Assignment; (iv) such assignee will, independently and
without reliance upon the Agent, such assigning Lender or any
other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Loan
Documents; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such
powers under the Loan Documents as are delegated to the Agent by
the terms thereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations
which by the terms of the Loan Documents are required to be
performed by it as a Lender. Anything in this Section 8.07 to
the contrary notwithstanding, this Section 8.07 shall not apply
to any of the assignments contemplated by Section 3.01(e).
(c) The Agent shall maintain at its
address referred to in Section 8.02 a copy of each Lender
Assignment delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Advances owing to,
each Lender from time to time (the Register ). The entries in
the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Parent, the Agent
and the Lenders may treat each Person whose name is recorded in
the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(d) Upon its receipt of a Lender
Assignment executed by an assigning Lender and an assignee
representing that it is an Eligible Assignee, together with any
Note or Notes subject to such assignment, the Agent shall, if
such Lender Assignment has been completed and is in substantially
the form of Exhibit 8.07 hereto, (i) accept such Lender
Assignment, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
Within 10 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 Note or Notes a new Note to
the order of such Eligible Assignee in an amount equal to the
Commitment assumed by it pursuant to such Lender Assignment and,
if the assigning Lender has retained a Commitment hereunder, a
new Note to the order of the assigning Lender in an amount equal
to the Commitment retained by it hereunder. Such new Note or
Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes,
shall be dated the effective date of such Lender Assignment and
shall otherwise be in substantially the form of Exhibit 1.01A-1
hereto.
(e) Each Lender may sell
participations to one or more banks, financial institutions or
other entities in all or a portion of its rights and obligations
under the Loan Documents (including, without limitation, all or a
portion of its Commitment, the Advances owing to it and the Note
or Notes 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, and (iv) the Borrower, the Agent and
the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and
obligations under this Agreement.
(f) Any Lender may, in connection
with any assignment or participation or proposed assignment or
participation pursuant to this Section 8.07, disclose to the
assignee or participant or proposed assignee or participant, any
information relating to the Borrower or the Parent furnished to
such Lender by or on behalf of the Borrower or the Parent;
provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree, in
accordance with the terms of Section 8.08, to preserve the
confidentiality of any Confidential Information relating to the
Borrower or the Parent received by it from such Lender.
(g) If any Lender (or any bank,
financial institution, or other entity to which such Lender has
sold a participation) shall (i) make any demand for payment under
Section 2.08 or 2.13, (ii) give notice to the Agent pursuant to
Section 2.14 or (iii) determine not to extend the Termination
Date in response to any request by the Borrower pursuant to
Section 2.18, then (A) in the case of any demand made under
clause (i), above, or the occurrence of the event described in
clause (ii), above, within 30 days after any such demand or
occurrence (if, but only if, in the case of any demanded payment
described in clause (i), such demanded payment has been made by
the Borrower), and (B) in the case of the occurrence of the event
described in clause (iii), above, at any time prior to the then-
scheduled Termination Date, the Borrower may, with the approval
of the Agent (which approval shall not be unreasonably withheld),
and provided that no Event of Default or Unmatured Default shall
then have occurred and be continuing, demand that such Lender
assign in accordance with this Section 8.07 to one or more
Eligible Assignees designated by the Borrower all (but not less
than all) of such Lender's Commitment and the Advances owing to
it within the period ending on the latest to occur of (x) the
last day in the period described in clause (A) or (B), above, as
applicable, (y) the last day of the longest of the then current
Interest Periods for such Advances, and (z) the latest maturity
date of any B Advances owing to such Lender. If any such
Eligible Assignee designated by the Borrower shall fail to
consummate such assignment on terms acceptable to such Lender, or
if the Borrower shall fail to designate any such Eligible
Assignees for all or part of such Lender's Commitment or
Advances, then such demand by the Borrower shall become
ineffective; it being understood for purposes of this subsection
(g) that such assignment shall be conclusively deemed to be on
terms acceptable to such Lender, and such Lender shall be
compelled to consummate such assignment to an Eligible Assignee
designated by the Borrower, if such Eligible Assignee (1) shall
agree to such assignment by entering into a Lender Assignment
with such Lender and (2) shall offer compensation to such Lender
in an amount equal to all amounts then owing by the Borrower to
such Lender hereunder and under the Note made by the Borrower to
such Lender, whether for principal, interest, fees, costs or
expenses (other than the demanded payment referred to above and
payable by the Borrower as a condition to the Borrower's right to
demand such assignment), or otherwise.
(h) Anything in this Section 8.07 to
the contrary notwithstanding, any Lender may assign and pledge
all or any portion of its Commitment and the Advances owing to it
to any Federal Reserve Bank (and its transferees) as collateral
security pursuant to Regulation A of the Board of Governors of
the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank. No such assignment shall release the
assigning Lender from its obligations hereunder.
SECTION 8.08. Confidentiality. In
connection with the negotiation and administration of this
Agreement and the other Loan Documents, the Borrower and the
Parent have furnished and will from time to time furnish to the
Agent and the Lenders (each, a Recipient ) written information
which is identified to the Recipient in writing when delivered as
confidential (such information, other than any such information
which (i) was publicly available, or otherwise known to the
Recipient, at the time of disclosure, (ii) subsequently becomes
publicly available other than through any act or omission by the
Recipient or (iii) otherwise subsequently becomes known to the
Recipient other than through a Person whom the Recipient knows to
be acting in violation of his or its obligations to the Borrower
or the Parent, being hereinafter referred to as Confidential
Information ). The Recipient will maintain the confidentiality
of any Confidential Information in accordance with such
procedures as the Recipient applies generally to information of
that nature. It is understood, however, that the foregoing will
not restrict the Recipient's ability to freely exchange such
Confidential Information with current or prospective participants
in or assignees of the Recipient's position herein, but the
Recipient's ability to so exchange Confidential Information shall
be conditioned upon any such prospective participant's or
assignee's entering into an understanding as to confidentiality
similar to this provision. It is further understood that the
foregoing will not prohibit the disclosure of any or all
Confidential Information if and to the extent that such
disclosure may be required (i) by a regulatory agency or
otherwise in connection with an examination of the Recipient's
records by appropriate authorities, (ii) pursuant to court order,
subpoena or other legal process or in connection with any pending
or threatened litigation, (iii) otherwise as required by law, or
(iv) in order to protect its interests or its rights or remedies
hereunder or under the other Loan Documents; in the event of any
required disclosure under clause (ii) or (iii), above, the
Recipient agrees to use reasonable efforts to inform the Borrower
and the Parent as promptly as practicable.
SECTION 8.09. WAIVER OF JURY TRIAL. THE
AGENT, THE LENDERS, THE BORROWER AND THE PARENT HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF
THE AGENT, SUCH LENDERS, THE BORROWER OR THE PARENT. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE LENDERS
ENTERING INTO THIS AGREEMENT.
SECTION 8.10. Consent. Unless otherwise
specified as being within the sole discretion of the Agent, the
Lenders the Majority Lenders or the Borrower, whenever the
consent or approval of the Agent, the Lenders, the Majority
Lenders or the Borrower, respectively, is required herein, such
consent or approval shall not be unreasonably withheld or
delayed.
SECTION 8.11. Governing Law. This
Agreement and the other Loan Documents shall be governed by, and
construed in accordance with, the laws of the State of New York.
The Borrower, the Parent, each Lender, and the Agent (i)
irrevocably submits to the non-exclusive jurisdiction of any New
York State court or Federal court sitting in New York City in any
action arising out of any Loan Document, (ii) agrees that all
claims in such action may be decided in such court, (iii) waives,
to the fullest extent it may effectively do so, the defense of an
inconvenient forum and (iv) consents to the service of process by
mail. A final judgment in any such action shall be conclusive
and may be enforced in other jurisdictions. Nothing herein shall
affect the right of any party to serve legal process in any
manner permitted by law or affect its right to bring any action
in any other court.
SECTION 8.12. Relation of the Parties;
No Beneficiary. No term, provision or requirement, whether
express or implied, of any Loan Document, or actions taken or to
be taken by any party thereunder, shall be construed to create a
partnership, association, or joint venture between such parties
or any of them. No term or provision of the Loan Documents shall
be construed to confer a benefit upon, or grant a right or
privilege to, any Person other than the parties thereto.
SECTION 8.13. 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.
IES DIVERSIFIED INC.
By
Title:
CITIBANK, N.A.,
as Agent
By
Vice President