Exhibit 4(g)
EXECUTION
COPY
$300,000,000
THIRD
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of November 20, 1996
Among
IES DIVERSIFIED INC.
as Borrower
and
THE BANKS NAMED HEREIN
as Banks
and
CITIBANK, N.A.
as Agent
TABLE OF CONTENTS
Section Page
ARTICLE I - DEFINITIONS AND ACCOUNTING TERMS 1
SECTION 1.01. Certain Defined Terms. 1
SECTION 1.02. Computation of Time Periods 15
SECTION 1.03. Computations of Outstandings 16
SECTION 1.04. Accounting Terms 16
ARTICLE II - AMOUNTS AND TERMS OF THE ADVANCES 16
SECTION 2.01. The A Advances 16
SECTION 2.03. The B Advances 18
SECTION 2.04. Fees 21
SECTION 2.05. Reduction of the Commitments 21
SECTION 2.06. Repayment of A Advances 22
SECTION 2.07. Interest on A Advances 22
SECTION 2.08. Additional Interest on Eurodollar Rate Advances 22
SECTION 2.09. Interest Rate Determination 23
SECTION 2.10. Voluntary Conversion of A Advances 25
SECTION 2.11. Optional Prepayments of Advances 25
SECTION 2.12. Mandatory Prepayments 25
SECTION 2.13. Increased Costs 26
SECTION 2.14. Illegality 27
SECTION 2.15. Payments and Computations 28
SECTION 2.16. Taxes 29
SECTION 2.17. Sharing of Payments, Etc. 30
SECTION 2.18. Extension of Termination Date 31
ARTICLE III - CONDITIONS OF LENDING 32
SECTION 3.01. Conditions Precedent to Closing 32
SECTION 3.02. Conditions Precedent to Each A Borrowing 34
SECTION 3.03. Conditions Precedent to Each B Borrowing 35
SECTION 3.04. Reliance on Certificates 36
ARTICLE IV -REPRESENTATIONS AND WARRANTIES 36
SECTION 4.01. Representations and Warranties of the Borrower 36
ARTICLE V - COVENANTS OF THE BORROWER 38
SECTION 5.01. Affirmative Covenants 38
SECTION 5.02. Negative Covenants 42
ARTICLE VI - EVENTS OF DEFAULT 46
SECTION 6.01. Events of Default 46
ARTICLE VII - THE AGENT 48
SECTION 7.01. Authorization and Action 48
SECTION 7.02. Agent's Reliance, Etc 49
SECTION 7.03. Citibank, N.A. and Affiliates 49
SECTION 7.04. Lender Credit Decision 50
SECTION 7.05. Indemnification 50
SECTION 7.06. Successor Agent 50
ARTICLE VIII - MISCELLANEOUS 51
SECTION 8.01. Amendments, Etc 51
SECTION 8.02. Notices, Etc 51
SECTION 8.03. No Waiver; Remedies 52
SECTION 8.04. Costs, Expenses, Taxes and Indemnification 52
SECTION 8.05. Right of Set-off 53
SECTION 8.06. Binding Effect 54
SECTION 8.07. Assignments and Participations 54
SECTION 8.08. Confidentiality 57
SECTION 8.09. Waiver of Jury Trial 58
SECTION 8.10. Consent 58
SECTION 8.11. Governing Law 58
SECTION 8.12. Relation of the Parties; No Beneficiary 58
SECTION 8.13. Execution in Counterparts 58
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of November 20, 1996
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 Second Amended and Restated Credit
Agreement, dated as of November 9, 1994 (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 $300,000,000 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:
(c) 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
(d) 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, for a Eurodollar Rate
Advance, an Adjusted CD Rate Advance or Base Rate
Advance, the basis points per annum set forth, in the
columns identified as Level 1, Level 2, Level 3 or Level
4 below, opposite the rate applicable to such Advance.
Level 1 Level 2 Level 3 Level 4
S&P A- or better BBB+ BBB below BBB*
and and and or
Moody's A3 or better Baa1 Baa2 below Baa2*
Basis Points Per Annum
Eurodollar Rate 25.0 25.0 30.0 70.0
Adjusted CD Rate 37.5 37.5 42.5 82.5
Base Rate Advance 0 0 0 100.0
* or unrated
The Applicable Margin will be based upon the Level
corresponding to First Mortgage Bond (IES Utilities) Debt
Rating at the time of determination. Any change in the
Applicable Margin shall be effective as of the Borrowing
date following the date on which the applicable rating
agency announces the applicable change in ratings.
"Applicable Rate" means:
(i) in the case of each Base Rate Advance, a rate
per annum equal at all times to the sum of the Alternate Base
Rate in effect from time to time plus the Applicable Margin in
effect from time to time;
(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 20, 1996, 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 on Schedule I
hereto or, if such Lender has entered into one or more
Lender Assignments, set forth for such Lender in the
Register maintained by the Agent pursuant to Section
8.07(c), in each such case as such amount may be reduced
from time to time pursuant to Section 2.05.
"Commitments" means the total of the Lenders' Commitments
hereunder. The Commitments shall in no event exceed
$300,000,000.
"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.
"Existing Banks" has the meaning assigned to that
term in Preliminary Statement (1) to this Agreement.
"Existing Credit Agreement" has the meaning assigned
to that term int he Preliminary Statements.
"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.
"External Line" means any arrangement (other than
pursuant to this Agreement or the Senior Debt Documents)
with any commercial bank pursuant to which such
commercial bank has agreed (whether or not such agreement
shall constitute a committed facility or shall otherwise
be legally enforceable) to make unsecured loans or extend
credit on an unsecured basis to one or more Borrowers up
to a specified amount ether on a demand basis or for
periods of not in excess of 270 days or any similar
finance arrangement commonly known as a "line of credit".
"Facility Fee" means a fee which shall be payable on
the aggregate amount of the Commitments, irrespective of
usage, to each Lender pro rata on the amount of their
respective Commitments. As described below, the Facility
Fee will be determined with reference to the basis points
per annum set forth in the columns identified as Level 1,
Level 2, Level 3 or Level 4 and the First Mortgage Bond
(IES Utilities) Debt Rating.
Level 1 Level 2 Level 3 Level 4
S&P A- or better BBB+ BBB below BBB*
and and and or
Moody's A3 or better Baa1 Baa2 below Baa2*
Basis Points 15.0 20.0 25.0 30.0
* or unrated
Any change in the Facility Fee shall be effective as of
the date on which the applicable rating agency announces
the applicable change of ratings.
"FDIC Assessment Rate" mean, during an Interest
Period for CD Rate Advances comprising a single
Borrowing, the annual rate (rounded upwards, if
necessary, to the next 1/100 of 1%) most recently
estimated by the Administrative Agent as the then current
annual assessment rate payable by the Administrative
Agent to the Federal Deposit Insurance Corporation (or
any successor) for insurance by such Corporation (or such
successor) of time deposits made in U.S. dollars at the
Administrative Agent's domestic offices. The FDIC
Assessment Rate shall be the same for all CD Rate
Advances comprising the same Borrowing and shall be
adjusted automatically on and as of he effective date of
each change in any such rate.
"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 October 17, 1996, among the Borrower, the Agent and
Citicorp Securities, Inc.
"First Mortgage Bonds (IES Utilities) Debt Rating"
means the rating assigned by Moody's or S&P, as the case
may be, to the senior secured non-credit enhanced long-
term Debt of IES Utilities.
"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.
"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 Confidential
Information Memorandum of the Parent dated October 1996
previously delivered by Citicorp Securities, Inc. at the
direction of the Parent to the Lenders.
"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, or any successor by merger thereto that
succeeds to the obligations of IES Industries Inc. under,
and in accordance with Section 2(e) of, the Support
Agreement.
"PBGC" means the Pension Benefit Guaranty
Corporation (or any successor entity) established under
ERISA.
"Percentage" means, for any Lender on any date of
determination, the percentage obtained by dividing such
Lender's Commitment on such day by the total of the
Commitments on such date, and multiplying the quotient so
obtained by 100%.
"Person" means an individual, partnership,
corporation (including a business trust), limited
liability company, joint stock company, trust,
unincorporated association, joint venture or other
entity, or a government or any political subdivision or
agency thereof.
"Plan" means a Single Employer Plan or a Multiple
Employer Plan.
"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 any Subsidiary of the
Borrower that, on a consolidated basis with any of its
Subsidiaries as of any date of determination, accounts
for more than 20% of the consolidated assets (valued at
book value) of the Borrower and its Subsidiaries.
"Single Employer Plan" means a single employer plan,
as defined in Section 4001(a)(15) of ERISA, which is
subject to Title IV of ERISA and which (i) is maintained
for employees of the Borrower or an ERISA Affiliate of
the Borrower and no Person other than the Borrower and
its ERISA Affiliates, or (ii) was so maintained and in
respect of which the Borrower or an ERISA Affiliate of
the Borrower could have liability under Section 4069 of
ERISA in the event such plan has been or were to be
terminated.
"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 Third 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.
"Termination Date" means the earlier to occur of
(i) November 20, 1999 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
(vii)(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 the Facility Fee from the
date hereof, in the case of each Bank, and from the effective
date specified in the Lender Assignment pursuant to which it
became a Lender, in the case of each other Lender, until the
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, 1996, and on
the Termination Date.
(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 agrees to pay to the Agent for the
account of each Bank, on the date of execution and delivery of
this Agreement, a participation fee equal to (i) in the case
of each Increasing Lender, .10% of the amount by which such
Bank's Commitment hereunder exceeds such Bank's Commitment
under the Existing Facility (in each case without giving
effect to any reduction in such Commitment arising as a result
of any Advances being outstanding) and (ii) in the case of any
New Lender, .10% of such Bank's Commitment.
(d) 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 imposed on it by the jurisdiction
of such Lender's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities
being hereinafter referred to as "Taxes"); 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 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 20, 1998
and November 20, 1999, 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 20, 1996 (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, required in connection with the execution, delivery
and performance of 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, Counsel for the
Borrower and Vice President, General Counsel & Secretary of
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 jurisdiction of its
incorporation and is duly qualified to do business in, and is
in good standing in, all other jurisdictions where the nature
of its business or the nature of property owned or used by it
makes such qualification necessary (except where the failure
to so qualify would not 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 in
connection with the execution, delivery or performance of any
Loan Document.
(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, 1995, 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, 1995, 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 September 30, 1996 and the related
unaudited consolidated and consolidating statements of income
for the nine-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 nine months ended September 30, 1996, 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.
(g) Except as disclosed in the Parent's Report
on Form 10-K for the year ended December 31, 1995 and Report
on Form 10-Q for the period ended September 30, 1996, 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 September 30, 1996 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 certificate of said officer stating that no Unmatured
Default or Event of Default has occurred and is continuing or,
if an Unmatured Default or Event of Default has occurred and
is continuing, a statement as to the nature thereof and the
action that the Borrower proposes to take with respect
thereto;
(iii) as soon as available and in any event
within 120 days after the end of each fiscal year of the
Borrower, a copy of the 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 certificate of a Senior
Financial Officer stating that no Unmatured Default or Event
of Default has occurred and is continuing or, if an Unmatured
Default or Event of Default has occurred and is continuing, a
statement as to the nature thereof and the action that the
Borrower proposes to take with respect thereto;
(iv) 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 of (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 in connection with the Loan Documents from time to
time on or prior to such date as the same may become legally
required, and thereafter to maintain all such Governmental
Approvals in full force and effect.
SECTION 5.02. Negative Covenants. So long as any amount
in respect of 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. 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 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 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 the Parent's 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 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 $20,000,000 (in book value) in the
aggregate of their collective assets 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.
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 required in
connection with the execution, delivery and performance of the
Loan Documents shall be rescinded, revoked, otherwise
terminated, or amended or modified in any manner which is
materially adverse to the interests of the Lenders and the
Agent; or
(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 One Court Square, 7th
Floor, Zone 2, Long Island City, New York 11120, Attention:
Bank Loan Syndications; 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) as publicly available, or otherwise known to the
Recipient, at the time of disclosure, (ii) subsequently
becomes publicly available other than through any act or
omission by the Recipient or (iii) otherwise subsequently
becomes known to the Recipient other than through a Person
whom the Recipient knows to be acting in violation of his or
its obligations to the Borrower or the 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
Bank
CITIBANK, N.A.
By
Title:
Bank
CIBC INC.
By
Title:
Bank
MELLON BANK, N.A.
By
Title:
Bank
THE CHASE MANHATTAN BANK
By
Title:
Bank
BARCLAYS BANK PLC
By
Title:
Bank
THE FIRST NATIONAL BANK OF CHICAGO
By
Title:
Bank
THE FUJI BANK, LIMITED
By
Title:
Bank
THE SANWA BANK, LIMITED,
CHICAGO BRANCH
By
Title:
Bank
UNION BANK OF CALIFORNIA, N.A.
By
Title:
Bank
NORWEST BANK IOWA,
NATIONAL ASSOCIATION
By
Title:
Bank
ABN AMRO N.V. by
ABN AMRO NORTH AMERICA, INC.
By
Title:
EXHIBIT 1.01A-1
FORM OF A NOTE
U.S.$__________ Dated:__________, 19__
FOR VALUE RECEIVED, the undersigned, IES DIVERSIFIED
INC., an Iowa corporation (the "Borrower"), HEREBY PROMISES TO
PAY to the order of ___________________________ (the "Lender")
for the account of its Applicable Lending Office (as defined
in the Credit Agreement referred to below) the principal sum
of U.S.$[amount of the Lender's Commitment in figures] or, if
less, the aggregate principal amount of the A Advances (as
defined below) made by the Lender to the Borrower pursuant to
the Credit Agreement outstanding on the Termination Date (as
defined in the Credit Agreement).
The Borrower promises to pay interest on the unpaid
principal amount of each A Advance from the date of such A
Advance until such principal amount is paid in full, at such
interest rates, and payable at such times, as are specified in
the Credit Agreement.
Both principal and interest are payable in lawful money
of the United States of America to Citibank, N.A., as Agent,
at 399 Park Avenue, New York, New York 10043, Attention:
Utilities Department, in same day funds. Each A Advance made
by the Lender to the Borrower pursuant to the Credit
Agreement, and all payments made on account of principal
thereof, shall be recorded by the Lender and, prior to any
transfer hereof, endorsed on the grid attached hereto which is
part of this Promissory Note, provided that the failure to so
record any A Advance or any payment thereof shall not affect
the payment obligations of the Borrower hereunder or under the
Credit Agreement.
This Promissory Note is one of the A Notes referred to
in, and is entitled to the benefits of, the Third Amended and
Restated Credit Agreement, dated as of November 20, 1996 (as
amended, modified or supplemented from time to time, the
"Credit Agreement"), among the Borrower, the Lender and
certain other lenders parties thereto, and Citibank, N.A., as
Agent for the Lender and such other lenders. The Credit
Agreement, among other things, (i) provides for the making of
advances (the "A Advances") by the Lender to the Borrower from
time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from each such A
Advance being evidenced by this Promissory Note, and
(ii) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also
for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein
specified.
The Borrower hereby waives presentment, demand, protest
and notice of any kind. No failure to exercise, and no delay
in exercising, any rights hereunder on the part of the holder
hereof shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed
in accordance with, the laws of the State of New York. The
Borrower (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 this
Promissory Note, (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.
IES DIVERSIFIED INC.
By
Title:
ADVANCES, MATURITIES, AND PAYMENTS OF PRINCIPAL
Amount of
Maturity Principal Unpaid
Amount of of Paid or Principal Notation
Date Advance Advance Prepaid Balance Made By
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
EXHIBIT 1.01A-2
FORM OF B NOTE
U.S.$__________ Dated:__________, 19__
FOR VALUE RECEIVED, the undersigned, IES DIVERSIFIED
INC., an Iowa corporation (the "Borrower"), HEREBY PROMISES TO
PAY to the order of _______________________________ (the
"Lender") for the account of its Applicable Lending Office (as
defined in the Credit Agreement referred to below), on
__________,19__, the principal amount of __________ Dollars
($________).
The Borrower promises to pay interest on the unpaid
principal amount hereof from the date hereof until such
principal amount is paid in full, at the interest rate and
payable on the interest payment date or dates provided below:
Interest Rate: ____% per annum (calculated on the basis
of a year of ______ days for the actual number of days
elapsed).
Interest Payment Date or Dates:__________
Both principal and interest are payable in lawful money
of the United States of America to Citibank, N.A., as Agent,
at 399 Park Avenue, New York, New York 10043, Attention:
Utilities Department, in same day funds.
This Promissory Note is one of the B Notes referred to
in, and is entitled to the benefits of, the Third Amended and
Restated Credit Agreement, dated as of November 20, 1996 (as
amended, modified or supplemented from time to time, the
"Credit Agreement"), among the Borrower, the Lender and
certain other lenders parties thereto, and Citibank, N.A., as
Agent for the Lender and such other lenders. The Credit
Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of
certain stated events.
The Borrower hereby waives presentment, demand, protest
and notice of any kind. No failure to exercise, and no delay
in exercising, any rights hereunder on the part of the holder
hereof shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed
in accordance with, the laws of the State of New York. The
Borrower (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 this
Promissory Note, (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.
IES DIVERSIFIED INC.
By
Title:
SUPPORT AGREEMENT
THIS THIRD AMENDED AND RESTATED SUPPORT AGREEMENT, made
the 20th day of November, 1996, by and between IES INDUSTRIES
INC., an Iowa corporation (together with any successor thereto
in accordance with Section 2(e) hereof, the "Parent"), and IES
DIVERSIFIED INC., an Iowa corporation (the "Borrower").
W I T N E S S E T H:
WHEREAS, the Parent is the owner of 100% of the
outstanding common stock of the Borrower;
WHEREAS, the Borrower, certain banks (the "Existing
Banks") and Citibank, N.A., as agent for the Existing Banks,
are parties to that certain Second Amended and Restated Credit
Agreement, dated as of November 9, 1994 (the "Existing
Facility"). The Borrower has requested that the Existing
Facility be amended and restated so as to (i) increase the
Commitments (as defined therein) to $300,000,000 and
(ii) effect certain other amendments and modifications as set
forth in the Third Amended Credit Agreement (as defined
below).
WHEREAS, the Borrower intends to make borrowings from,
and issue promissory notes to, certain lenders pursuant to
that certain Third Amended and Restated Credit Agreement,
dated as of November 20, 1996 (said Agreement, as it may
hereafter be amended or otherwise modified from time to time,
being the "Third Amended Credit Agreement", the terms defined
therein and not otherwise defined herein being used herein as
therein defined), among the Borrower, said lenders (the
"Lenders") and Citibank, N.A., as Agent, so that the Borrower
will be in a position to provide financing for itself and for
some or all of its (and, in turn, the Parent's) Subsidiaries
(other than IES Utilities);
WHEREAS, the Parent and the Borrower are parties to that
certain Second Amended and Restated Support Agreement, dated
as of November 9, 1994 (the "Existing Support Agreement"). In
connection with the amendment and restatement of the Existing
Facility, the Parent and the Borrower desire to amend and
restate the Existing Support Agreement to enhance and maintain
the financial condition of the Borrower as hereinafter set
forth in order to enable the Borrower to incur Debt under the
Third Amended Credit Agreement on more advantageous and
reasonable terms; and
WHEREAS, the Parent has entered into an Agreement and
Plan of Merger, dated as of November 10, 1995, as amended,
with WPL Holdings, Inc., a Wisconsin Corporation ("WPL"), and
Interstate Power Company, a Delaware corporation ("IPC"),
pursuant to which, if the merger contemplated thereby (the
"Proposed Merger") is consummated, the Parent will merge with
and into WPL and IPC will become a subsidiary of such merged
entity;
WHEREAS, the Parent and the Borrower understand and agree
that the Agent and the Lenders have relied upon this Agreement
in entering into the Third Amended Credit Agreement and will
rely hereon in making Advances to the Borrower;
NOW, THEREFORE, in consideration of the premises, and
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties
hereto agree that the Existing Support Agreement is hereby
amended and restated in its entirety to read as follows:
SECTION 1. Affirmative Covenants of the Parent. So
long as any amount in respect of any Note shall remain unpaid
or any Lender shall have any Commitment, the Parent will,
unless the Majority Lenders shall otherwise consent in
writing:
(a) Stock Ownership. At all times maintain
direct ownership of 100% of the shares of capital stock (or
comparable interests) of the Borrower and IES Utilities now or
hereafter issued and outstanding, other than the preferred and
preference stock of IES Utilities.
(b) Net Worth. Cause the Borrower to have at
all times a positive net worth (net assets less intangible
assets, if any), as determined in accordance with generally
accepted accounting principles.
SECTION 2. Negative Covenants of the Parent. So long
as any amount in respect of any Note shall remain unpaid or
any Lender shall have any Commitment, the Parent will not,
without the written consent of the Majority Lenders:
(a) Consolidated Leverage Ratio. Allow the ratio
of (i) Consolidated Debt of the Parent to (ii) Consolidated
Capital of the Parent to exceed 0.65 to 1.00 at any time.
(b) Debt. Create, incur, assume, or suffer to
exist any Debt other than:
(i) Debt under (A) existing guaranties of the
mortgage obligations of certain officers of the Parent and (B)
an existing line of credit provided to the Parent by Firstar
Bank which supports the Parent's obligations under such
guaranties, provided that such Debt shall not exceed
$1,500,000 in the aggregate at any one time outstanding;
(ii) Debt under guaranties and other types of
support agreements in respect of Debt of the Borrower;
provided that if the terms of any such guaranty or support
agreement are more favorable to the beneficiary thereof than
are the terms of this Agreement to the Agent and the Lenders,
this Agreement shall, coincident with the delivery of such
guaranty or support agreement, be replaced with an agreement
containing such more favorable terms (or amended to contain
such more favorable terms); and provided, further, that both
immediately before and after the execution and delivery of
such guaranty or support agreement, the Parent shall be in
compliance with the covenant set forth in subsection (a),
above;
(iii) unsecured Debt owing to the Borrower;
(iv) existing Debt set forth in Schedule 2
hereto; and
(v) from and after the consummation of the
Proposed Merger and the satisfaction of
the conditions set forth in Section 2(e)
hereof, other Debt in the aggregate not
to exceed $50,000,000.
(c) Prohibited Transactions. Enter into any
transaction, or permit the Borrower to enter into any
transaction, which will result in an Event of Default.
(d) Negative Pledge. Create or suffer to exist any
Lien upon or with respect to any capital stock of the Borrower
from time to time owned by the Parent or any capital stock of
IES Utilities from time to time owned by the Parent.
(e) Merger. Merge with or into or consolidate
with or into any other entity, unless, as a condition to such
merger or consolidation, the surviving corporation (if not the
Parent) (i) expressly assumes in a writing delivered to the
Agent (with sufficient copies for each Lender) the due and
punctual performance and observance of all of the obligations
in the Support Agreement to be performed or observed by the
Parent and (ii) delivers to the Agent (with sufficient copies
for each Lender) an opinion of counsel, in form and substance
satisfactory to the Agent, as to the enforceability of the
obligations set forth in such writing and the obtaining of all
Governmental Approvals necessary for the performance of such
obligations by such surviving corporation and such other
matters as the Agent may reasonably request.
SECTION 3. Delivery of Financial Statements. So long
as any amount in respect of any Note shall remain unpaid or
any Lender shall have any Commitment, the Parent will, unless
the Majority Lenders shall otherwise consent in writing,
furnish to each Lender:
(a) Quarterly Financial Statements. As soon as
available and in any event within 60 days after the end of
each of the first three quarters of each fiscal year of the
Parent, (i) a consolidated and consolidating balance sheet of
the Parent and its Subsidiaries as at the end of such quarter
and (ii) consolidated and consolidating statements of income
and retained earnings, and a consolidated statement of cash
flows, of the Parent and its Subsidiaries for the period
commencing at the end of the previous fiscal year and ending
with the end of such quarter, all in reasonable detail and
duly certified (subject to year-end audit adjustments) by the
chief financial officer of the Parent as having been prepared
in accordance with generally accepted accounting principles
consistent with those applied in the preparation of the
financial statements referred to in Section 5(d) hereof,
together with a schedule in form satisfactory to the Majority
Lenders of the computations used by the Parent in determining
compliance with the covenant contained in Section 2(a) hereof.
(b) Annual Consolidated Financial Statements. As
soon as available and in any event within 120 days after the
end of each fiscal year of the Parent, a copy of the
consolidated balance sheet of the Parent and its Subsidiaries
as at the end of such fiscal year and consolidated statements
of income, retained earnings and cash flows of the Parent and
its Subsidiaries for such fiscal year, in each case
accompanied by the audit report of Arthur Andersen & Co. or
another nationally-recognized independent public accounting
firm acceptable to the Majority Lenders, together with a
schedule in form satisfactory to the Majority Lenders of the
computations used by such accounting firm in determining, as
of the end such fiscal year, compliance with the covenant
contained in Section 2(a) hereof.
(c) Annual Consolidating Financial Statements. As
soon as available and in any event within 120 days after the
end of each fiscal year of the Parent, a copy of the
consolidating balance sheet of the Parent and its Subsidiaries
as at the end of such fiscal year and consolidating statements
of income and retained earnings of the Parent and its
Subsidiaries for such fiscal year, all in reasonable detail
and duly certified by the chief financial officer of the
Parent as having been prepared in accordance with generally
accepted accounting principles consistent with those applied
in the preparation of the financial statements referred to in
Section 5(d) hereof.
(d) Other Information. Promptly after requested,
such other information respecting the business, properties,
results of operations, prospects, revenues, condition or
operations, financial or otherwise, of the Parent or any of
its Subsidiaries as the Agent or any Lender through the Agent
may from time to time reasonably request.
SECTION 4. Liquidity Undertaking. If, during the
term of this Agreement, the Borrower is unable to make timely
payment of any of its obligations now or hereafter existing
under the Third Amended Credit Agreement and the Notes,
whether for principal, interest, fees, expenses or otherwise
(such obligations being the "Obligations"), the Parent agrees
that it shall promptly provide to the Borrower, at its request
or at the request of the Agent or any Lender, such amount of
funds (in the form of cash or liquid assets, and as equity or,
subject to Section 5.02(b) of the Third Amended Credit
Agreement, as a loan) as shall be necessary to enable the
Borrower to make payment of such Obligations. If such funds
are advanced to the Borrower as a loan, such loan shall be on
such terms and conditions, including maturity and rate of
interest, as the Parent and the Borrower shall agree.
Notwithstanding the foregoing, any such loan shall be
subordinated in all respects to any and all Obligations upon
the terms set forth in Schedule 1 hereto, whether or not any
Obligations are outstanding at the time of such loan.
SECTION 5. Representations and Warranties of the Parent.
The Parent represents and warrants to the Borrower, the Agent
and the Lenders as follows:
(a) The Parent and each of its Subsidiaries is a
corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its
incorporation and is duly qualified to do business in, and is
in good standing in, all other jurisdictions where the nature
of its business or the nature of property owned or used by it
makes such qualification necessary (except where the failure
to so qualify would not have a material adverse affect on the
business, financial condition, operations, results of
operations or prospects of the Parent and its Subsidiaries,
taken as a whole).
(b) The execution, delivery and performance by the
Parent of this Agreement are within the Parent's corporate
powers, have been duly authorized by all necessary corporate
action, and do not and will not contravene (i) the Parent's
charter or by-laws, (ii) law, or (iii) any legal or
contractual restriction binding on or affecting the Parent;
and such execution, delivery and performance do not or will
not result in or require the creation of any Lien upon or with
respect to any of its properties.
(c) This Agreement is the legal, valid and binding
obligation of the Parent enforceable against the Parent in
accordance with its terms, subject to the qualifications,
however, that the enforcement of the rights and remedies
herein 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.
(d) The consolidated balance sheet of the Parent
and its Subsidiaries as at December 31, 1995, and the related
consolidated statements of income, retained earnings and cash
flows of the Parent and its Subsidiaries for the fiscal year
then ended, and accompanied by a report thereon of Arthur
Andersen & Co., and the consolidated unaudited balance sheet
of the Parent and its Subsidiaries as at September 30, 1996,
and the related consolidated unaudited statements of income,
retained earnings and cash flows of the Parent and its
Subsidiaries for the nine-month period then ended, copies of
each of which have been furnished to each Lender, fairly
present (subject, in the case of such balance sheets and
statements of income, retained earnings and cash flows for the
nine months ended September 30, 1996, to year-end adjustments)
the consolidated financial condition of the Parent and its
Subsidiaries as at such dates and the consolidated results of
operations of the Parent and its Subsidiaries for the periods
ended on such dates, all in accordance with generally accepted
accounting principles consistently applied, and since
September 30, 1996, there has been no material adverse change
in the business, financial condition, operations, results of
operations or prospects of the Parent and its Subsidiaries,
taken as a whole, or in the Parent's ability to perform its
obligations under this Agreement or any other Loan Document to
which it is or will be a party.
(e) Except as disclosed in the Parent's Report on
Form 10-K for the year ended December 31, 1995 and Report on
Form 10-Q for the period ended September 30, 1996, there is no
pending or threatened action or proceeding affecting the
Parent or any of its Subsidiaries or properties before any
court, governmental agency or arbitrator, that might
reasonably be expected to materially adversely affect (i) the
business, financial condition, operations, results of
operations or prospects of the Parent and its Subsidiaries,
taken as a whole, or (ii) the ability of the Parent to perform
its obligations under this Agreement or under any other Loan
Document to which it is or is to be a party; and since
September 30, 1996 there have been no material adverse
developments in any action or proceeding so disclosed.
(f) The Parent has filed all tax returns (Federal,
state and local) required to be filed and paid all taxes shown
thereon to be due, including interest and penalties, or, to
the extent the Parent 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.
(g) (i) Until such time as the Proposed Merger is
consummated, the Parent is and will continue to be a "holding
company" within the meaning of the PUHCA, but the Parent and
its Subsidiaries are and 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. Until such time, such exemption is and will
be in full force and effect and the Parent is not aware of any
existing or proposed proceedings contemplating the revocation
or modification of such exemption.
(ii) From and after the consummation of the Proposed
Merger, the Parent is and will continue to be a "holding
company" within the meaning of he PUHCA.
(h) No Governmental Approval which has not been
obtained is required in connection with the execution,
delivery and performance by the Parent of this Agreement.
(i) The consolidated and consolidating financial
statements of the Parent and its Subsidiaries contained in the
Information Memorandum fairly present the financial condition
of the Parent and its Subsidiaries as at the dates specified
therein and the results of operations of the Parent and its
Subsidiaries for the periods ended on such dates, all in
accordance with generally accepted accounting principles
consistently applied.
SECTION 6. Waivers. (a) The Parent hereby waives any
failure or delay on the part of the Borrower in asserting or
enforcing any of its rights or in making any claims or demands
hereunder. The Borrower, the Agent or any Lender may at any
time, without the Parent's consent, without notice to the
Parent and without affecting or impairing the Borrower's, the
Agent's or such Lender's rights or the Parent's obligations
hereunder, do any of the following with respect to the Third
Amended Credit Agreement and the Notes: (i) make changes,
modifications, amendments or alterations thereto, by operation
of law or otherwise, including, without limitation, any
increase in the Commitments or the rate of interest payable
with respect to Advances or any change in the method of
calculating the rate of interest payable with respect thereto,
(ii) grant renewals and extensions of time, for payment or
otherwise, (iii) accept new or additional documents,
instruments or agreements relating to or in substitution
thereof, or (iv) otherwise handle the enforcement of their
respective rights and remedies in accordance with their
business judgment.
(b) If the Parent shall at any time or from time to
time fail to perform or comply with any of its obligations
contained herein and if for any reason the Agent or any Lender
shall have failed to receive when due and payable (whether at
stated maturity, by acceleration, or otherwise) the payment of
all or any part of principal of, or interest on, or any other
amount payable by the Borrower in respect of any Obligations
owing to the Agent or such Lender, then in each case, to the
fullest extent permitted by law, (i) it shall be assumed
conclusively without necessity of proof that such failure by
the Parent was the sole and direct cause of the Agent's or
such Lender's (as the case may be) failure to receive such
payment when due irrespective of any other contributing or
intervening cause whatsoever, and (ii) the Parent further
irrevocably waives any right or defense that the Parent may
have to cause the Agent or any Lender to prove the cause or
amount of any damages or to mitigate the same.
(c) The Parent irrevocably waives, to the fullest
extent permitted by law and for the benefit of, and as a
separate undertaking with, the Agent and each Lender, any
defense to the performance of this Agreement that may be
available to the Parent as a consequence of this Agreement's
being rejected or otherwise not assumed by the Borrower or any
trustee or similar official for the Borrower or for any
substantial part of the property of the Borrower, or as a
consequence of this Agreement's being otherwise terminated or
modified, in any bankruptcy or insolvency proceeding, whether
such rejection, non-assumption, termination or modification
shall have been by reason of this Agreement's being held to be
an executory contract or by reason of any other circumstance.
If, notwithstanding the foregoing, this Agreement shall be
rejected or otherwise not assumed, or terminated or modified,
the Parent agrees, to the fullest extent permitted by law, for
the benefit of, and as a separate undertaking with, the Agent
and each Lender, that the Parent will be unconditionally
liable to pay to the Agent and each Lender an amount equal to
each payment that would otherwise be payable by the Parent
under or in connection with this Agreement if this Agreement
were not so rejected or otherwise not assumed or terminated or
modified.
SECTION 7. Amendments, Etc. No amendment or waiver
of any provision of this Agreement, nor consent to any
departure therefrom, shall in any event be effective unless
the same shall be in writing and signed by both parties and
consented to by the Majority Lenders.
SECTION 8. Rights of the Lenders. The Borrower
hereby assigns and pledges to the Agent for the ratable
benefit of each Lender, the Borrower's rights under
Sections 1, 2 and 4 of this Agreement, and, if the Borrower
fails or refuses to take timely action to enforce its rights
under Section 1, 2 or 4 of this Agreement or if the Borrower
defaults in the timely payment of any Obligations owed to the
Agent or any Lender when due, the Agent may proceed directly
against the Parent to enforce the Borrower's rights under
Sections 1, 2 and 4 of this Agreement or to obtain payment of
such defaulted Obligations owed to the Agent or such Lender.
SECTION 9. Notices. All notices and other
communications provided for hereunder shall be in writing
(including telecopier, telegraphic, telex or cable
communication) and mailed, telecopied, telegraphed, telexed,
cabled or delivered, if to the Borrower, at its address at 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 to the Third Amended Credit Agreement; if to any
other Lender, at its Domestic Lending Office specified in the
Lender Assignment pursuant to which it became a Lender; and if
to the Agent, at its address at One Court Plaza, 7th Floor,
Zone 2, Long Island City, New York 11120, Attention: Bank Loan
Syndication; or, as to each party, at such other address as
shall be designated by such party in a written notice to the
other parties. All such notices and communications shall,
when mailed, telecopied, telegraphed, telexed or cabled, be
effective five days after being deposited in the mails, or
when delivered to the telegraph company, telecopied, confirmed
by telex answerback or delivered to the cable company,
respectively.
SECTION 10. Successors. Subject to Section 2(e), this
Agreement shall be binding upon the parties hereto and their
respective successors and assigns and is also intended for the
benefit of the Agent and the Lenders and, notwithstanding that
the Agent and the Lenders are not parties hereto, the Agent
and each Lender shall be entitled to the full benefits of this
Agreement and to enforce the covenants and agreements
contained herein. This Agreement is not intended for the
benefit of any Person other than the Agent and the Lenders,
and shall not confer or be deemed to confer upon any other
such Person any benefits, rights or remedies hereunder.
SECTION 11. Governing Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the
State of New York.
SECTION 12. Remedies. The parties to this Agreement
acknowledge and agree that breach of any of the covenants of
the Parent set forth herein may not be compensable by payment
of money damages and, therefore, that the covenants of the
Parent set forth herein may be enforced in equity by a decree
requiring specific performance. Such remedies shall be
cumulative and non-exclusive and shall be in addition to any
other rights and remedies the Borrower may have under this
Agreement.
IN WITNESS WHEREOF, the parties hereto have set their
hands and affixed their corporate seals as of the day and year
above written.
IES INDUSTRIES INC.
By_________________________________
Title:
IES DIVERSIFIED INC.
By_________________________________
Title:
Schedule 1
TERMS OF SUBORDINATION
[The following provisions are to be included
in each instrument or document evidencing
loans from the Parent to the Borrower pursuant
to Section 4 of the Support Agreement]
1. Reference is made to the Third Amended and
Restated Credit Agreement, dated as of November 20, 1996 (such
agreement, as it may hereafter be amended, modified or
supplemented from time to time, being the "Credit Agreement";
the terms defined therein and not otherwise defined herein
being used herein as therein defined), among IES Diversified
Inc., the Lenders named therein and Citibank, N.A., as Agent
for the Lenders. The Parent hereby agrees for the benefit of
the Agent and the Lenders that all obligations of the Borrower
to the Parent hereunder (the "Subordinated Debt") are and
shall be subordinate, to the extent and in the manner set
forth hereinafter, in right of payment to the prior payment in
full of all obligations of the Borrower under the Credit
Agreement and the other Loan Documents, whether for principal,
interest (including interest, as provided in the Loan
Documents, after the filing of a petition initiating any
proceeding referred to in paragraph 3, below), fees, expenses
or otherwise (all such obligations being the "Senior Debt").
2. Upon the occurrence and during the continuance
of an Event of Default or an Unmatured Default, the Parent
shall not ask, demand, sue for, take or receive from the
Borrower, directly or indirectly, in cash or other property or
by set-off or in any other manner (including, without
limitation, from or by way of collateral), payment of all or
any of the Subordinated Debt.
3. Upon any distribution of all or any of the
assets of the Borrower to creditors of the Borrower upon the
dissolution, winding up, liquidation, arrangement,
reorganization or composition of the Borrower, whether in any
bankruptcy, insolvency, arrangement, reorganization,
receivership or similar proceedings or upon an assignment for
the benefit of creditors or any other marshaling of the assets
and liabilities of the Borrower or otherwise, any payment or
distribution of any kind (whether in cash, property or
securities) which otherwise would be payable or deliverable
upon or with respect to the Subordinated Debt shall be paid or
delivered directly to the Agent for the benefit of the Agent
and the Lenders for application (in the case of cash) to or as
collateral (in the case of non-cash property or securities)
for the payment or prepayment of the Senior Debt until the
Senior Debt shall have been paid in full. For the purposes of
these provisions, the Senior Debt shall not be deemed to have
been paid in full until the Agent and the Lenders shall have
indefeasibly received payment in full of the Senior Debt in
cash.
4. Until such time as the Senior Debt shall have
been paid in full, if any proceeding referred to in paragraph
3, above, is commenced by or against the Borrower, the Agent
is hereby irrevocably authorized and empowered (in its own
name, on behalf of the Lenders, in the name of the Parent, or
otherwise), but shall have no obligation, to demand, sue for,
collect and receive every payment or distribution referred to
in paragraph 3, above, and give acquittance therefor and to
file claims and proofs of claim and take such other action
(including, without limitation, voting the Subordinated Debt
or enforcing any Lien securing payment of the Subordinated
Debt) as it may deem necessary or advisable for the exercise
or enforcement of any of the rights or interests of the
Lenders hereunder.
5. All payments or distributions upon or with
respect to the Subordinated Debt which are received by the
Parent contrary to the provisions hereof shall be received in
trust for the benefit of the Agent and the Lenders, shall be
segregated from other funds and property held by the Parent
and shall be forthwith paid over to the Agent for the benefit
of the Agent and the Lenders in the same form as so received
(with any necessary endorsement) to be applied (in the case of
cash) to or held as collateral (in the case of non-cash
property or securities) for the payment or prepayment of the
Senior Debt in accordance with the terms of the Loan
Documents.
6. The Agent is hereby authorized to demand
specific performance of these terms of subordination, whether
or not the Borrower shall have complied with any of the
provisions hereof applicable to it, at any time when the
Parent shall have failed to comply with any of such provisions
applicable to it. The Parent hereby irrevocably waives any
defense based on the adequacy of a remedy at law which might
be asserted as a bar to such remedy of specific performance.
7. So long as any of the Senior Debt shall remain
unpaid, the Parent shall not (i) commence, or join with any
creditor other than the Agent and the Lenders in commencing,
any involuntary proceeding referred to in paragraph 3, above,
or (ii) declare any default in payment due hereunder or sue
for breach of the terms hereof, if and so long as payment
hereunder would not be permissible pursuant to paragraph 2
above.
8. No payment or distribution to the Agent and the
Lenders pursuant to the above provisions shall entitle the
Parent to exercise any rights of subrogation in respect
thereof until the Senior Debt shall have been paid in full.
9. The holders of the Senior Debt may, at any time
and from time to time, without any consent of or notice to the
Parent or any other holder of the Subordinated Debt and
without impairing or releasing the obligations of the Parent
under these terms of subordination: (i) change the manner,
place or terms of payment or change or extend the time of
payment of, or renew or alter, the Senior Debt (including any
change in the interest rate under which any of the Senior Debt
is outstanding); (ii) sell, exchange, release, not perfect and
otherwise deal with any property at any time pledged, assigned
or mortgaged to secure the Senior Debt; (iii) release anyone
liable in any manner under or in respect of the Senior Debt;
(iv) exercise or refrain from exercising any rights against
the Borrower and others; and (v) apply any sums from time to
time received to the Senior Debt.
10. The foregoing provisions regarding
subordination are for the benefit of the holders of the Senior
Debt and shall be enforceable by them directly against the
holders of any Subordinated Debt, and no holder of the Senior
Debt shall be prejudiced in its right to enforce subordination
of any of the Subordinated Debt by any act or failure to act
by the Borrower or anyone in custody of its assets or
property. No such provisions may be amended or modified
without the prior written consent of the Agent.
SCHEDULE 2
Principal Borrower Amount Lender Type
1. Iowa Northern Railway Co. 220,649.00 Iowa Railway IES Guarantee of
Financing unsecured loan
Authority to Iowa Northern
Railway
EXHIBIT 2.02(a)
FORM OF NOTICE OF A BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Attention: __________
[Date]
Gentlemen:
The undersigned, IES Diversified Inc., refers to the
Third Amended and Restated Credit Agreement, dated as of
November 20, 1996 (as amended, modified or supplemented from
time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined), among the
undersigned, the Lenders named therein and the Agent, and
hereby gives you notice, irrevocably, pursuant to Section 2.02
of the Credit Agreement that the undersigned hereby requests
an A Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such A
Borrowing (the "Proposed A Borrowing") as required by Section
2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed A Borrowing is
__________, 19__.
(ii) The Type of A Advances comprising the Proposed
A Borrowing is [Adjusted CD Rate Advances]
[Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed A
Borrowing is $__________.
1] [(iv) The Interest Period for each A Advance made as
part of the Proposed A Borrowing is [_____days]
[_____month[s]].]
_______________
1 To be included for a Proposed A Borrowing comprised of
Adjusted CD Rate Advances or Eurodollar Rate Advances.
The undersigned hereby acknowledges that the delivery of
this Notice of A Borrowing shall constitute a representation
and warranty by the Borrower that, on the date of the Proposed
A Borrowing, the statements contained in Section 3.02 of the
Credit Agreement are true.
Very truly yours,
IES DIVERSIFIED INC.
By
Title:
EXHIBIT 2.03(a)(i)
FORM OF NOTICE OF B BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Attention: ___________
[Date]
Gentlemen:
The undersigned, IES Diversified Inc., refers to the
Third Amended and Restated Credit Agreement, dated as of
November 20, 1996 (as amended, modified or supplemented from
time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined), among the
undersigned, the Lenders named therein and the Agent, and
hereby gives you notice pursuant to Section 2.03 of the Credit
Agreement that the undersigned hereby requests a B Borrowing
under the Credit Agreement, and in that connection sets forth
the terms on which such B Borrowing (the "Proposed B
Borrowing") is requested to be made:
(A) Date of B Borrowing __________
(B) Amount of B Borrowing __________
(C) Maturity Date __________
(D) Interest Payment Date(s) __________
(E) __________ __________
(F) __________ __________
(G) __________ __________
The undersigned hereby acknowledges that the delivery of
this Notice of B Borrowing shall constitute a representation
and warranty by the Borrower that, on the date of the Proposed
B Borrowing, the statements contained in Section 3.03 of the
Credit Agreement are true.
The undersigned hereby confirms that the Proposed B
Borrowing is to be made available to it in accordance with
Section 2.03 of the Credit Agreement.
Very truly yours,
IES DIVERSIFIED INC.
By
Title:
EXHIBIT 2.10
FORM OF NOTICE OF CONVERSION
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Attention: _____________________
[Date]
Gentlemen:
The undersigned, IES Diversified Inc., refers to the
Third Amended and Restated Credit Agreement, dated as of
November 20, 1996 (as amended, modified or supplemented from
time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined), among the
undersigned, the Lenders named therein and the Agent, and
hereby gives you notice, irrevocably, pursuant to Section 2.10
of the Credit Agreement that the undersigned hereby requests a
Conversion under the Credit Agreement, and in that connection
sets forth below the information relating to such Conversion
(the "Proposed Conversion") as required by Section 2.10 of the
Credit Agreement:
(i) The Business Day of the Proposed Conversion is
__________, ____.
(ii) The Type of Advances comprising the Proposed
Conversion is [Adjusted CD Rate Advances]
[Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Conversion
is $__________.
(iv) The Type of Advances to which such Advances are
proposed to be Converted is [CD Rate Advances]
[Base Rate Advances] [Eurodollar Rate Advances].
(v) The Interest Period for each Advance made as
part of the Proposed Conversion is [_____days]
[_____ month(s)]. 2
_______________
2 Delete for Base Rate Advances
The undersigned hereby represents and warrants that the
following statements are true on the date hereof, and will be
true on the date of the Proposed Conversion:
(A) The Borrower's request for the Proposed
Conversion is made in compliance with Section 2.10 of the
Credit Agreement; and
(B) The statements contained in Section 3.02 of
the Credit Agreement are true.
Very truly yours,
IES DIVERSIFIED INC.
By
Title:
EXHIBIT 3.01(a)(xii)-1
FORM OF OPINION OF
WINTHROP, STIMSON, PUTNAM & ROBERTS
[Date of Closing]
To each of the Lenders parties to the
Credit Agreement referred to below,
and to Citibank, N.A., as Agent
Re: IES Diversified Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
3.01(a)(xii)(A) of the Third Amended and Restated Credit
Agreement, dated as of November ___, 1996 (the "Credit
Agreement"), among IES Diversified Inc. (the "Borrower"), the
Banks parties thereto and the other Lenders from time to time
parties thereto, and Citibank, N.A., as Agent. Terms defined
in the Credit Agreement and not otherwise defined herein are
used herein as therein defined.
We have acted as counsel for the Borrower and the parent
in connection with the preparation, execution and delivery of,
and the Closing on this date under, the Credit Agreement and
the other Loan Documents.
In that capacity we have examined:
(a) The Credit Agreement;
(b) The A Notes;
(c) The Support Agreement;
(d) The Articles of Incorporation of the Borrower and all
amendments thereto (the "Borrower Charter");
(e) The by-laws of the Borrower and all amendments thereto
(the "Borrower By-laws");
(f) The Articles of Incorporation of the Parent and all
amendments thereto (the "Parent Charter"); and
(g) The by-laws of the Parent and all amendments thereto (the
"Parent By-laws").
In addition, we have examined the originals, or copies
certified to our satisfaction, of such other corporate records
of the Borrower and of the Parent, certificates of public
officials and of officers of the Borrower and of the Parent,
and agreements, instruments and other documents, as we have
deemed necessary as a basis for the opinions expressed below.
As to questions of fact material to such opinions, we have,
when relevant facts were not independently established by us,
relied upon certificates of the Borrower and of the Parent or
their respective officers or of public officials.
We have assumed (i) the due execution and delivery,
pursuant to due authorization, of the Credit Agreement by all
parties to the Credit Agreement and the Existing Facility
(other than the Borrower), (ii) the authenticity of all such
documents submitted to us as originals, (iii) the genuineness
of all signatures (other than those of the Borrower and of the
Parent) and (iv) the conformity to the originals of all such
documents submitted to us as copies.
Our opinions expressed herein are limited to the laws of
the State of New York and the Federal laws of the United
States of America. To the extent that any of the opinions
expressed below involve conclusions as to matters governed by
the laws of the State of Iowa, we have relied on the opinion
of _______________, General Counsel and Secretary of the
Borrower and Vice President, General Counsel and Secretary of
the Parent, delivered to you pursuant to
Section 3.01(a)(xii)(B) of the Credit Agreement. We believe
that you and we are justified in relying on such opinion for
such purposes.
Based upon to the foregoing and upon such investigation
as we have deemed necessary, we are of the following opinion:
1. Each of the Borrower and the Parent is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Iowa.
2. The execution, delivery and performance by the
Borrower of the Credit Agreement, the Notes, the Support
Agreement and the Fee Letter are within the Borrower's
corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (a) the Borrower
Charter or the Borrower By-laws, (b) any law, rule, regulation
or, to our knowledge, any order or judgment, applicable to the
Borrower, (c) any contractual restriction arising under any
agreement or instrument evidencing indebtedness described in
Schedule III of the Credit Agreement, or (d) to our knowledge,
any other legal or contractual restriction binding on or
affecting the Borrower or its properties; and such execution,
delivery and performance do not result in or require the
creation or imposition of any Lien (other than the Lien of the
Agent for the benefit of the Lenders upon the rights of the
Borrower under the Support Agreement) upon or with respect to
any of its properties under any agreement or instrument
evidencing indebtedness described in Schedule III of the
Credit Agreement or, to our knowledge, under any other
agreement or instrument. The Credit Agreement, the A Notes,
the Support Agreement and the Fee Letter have been duly
executed and delivered on behalf of the Borrower. When
completed in the form thereof attached as Exhibit 1.01A-2 to
the Credit Agreement, and executed by a Senior Financial
Officer and delivered on behalf of the Borrower, each B Note
will have been duly executed and delivered on behalf of the
Borrower.
3. The execution, delivery and performance by the
Parent of the Support Agreement are within the Parent's
corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (a) the Parent Charter
or the Parent By-laws, (b) any law, rule, regulation or, to
our knowledge, any order or judgment, applicable to the
Parent, (c) any contractual restriction arising under (i) the
$1,500,000 line of credit provided to the Parent by Firstar
Bank or (ii) any agreement or instrument evidencing
indebtedness described in Schedule 2 of the Support Agreement,
or (d) to our knowledge, any other legal or contractual
restriction binding on or affecting the Parent or its
properties; and such execution, delivery and performance do
not result in or require the creation or imposition of any
Lien upon or with respect to any of its properties under the
$1,500,000 line of credit provided to the Parent by Firstar
Bank or under any agreement or instrument evidencing
indebtedness described in Schedule 2 of the Support Agreement,
or, to our knowledge, under any other agreement or instrument.
The Support Agreement has been duly executed and delivered on
behalf of the Parent.
4. No authorization or approval or other action
by, and no notice to or filing with, any governmental
authority or regulatory body is required for the due
execution, delivery and performance by the Borrower of the
Credit Agreement and the other Loan Documents to which it is,
or is to be, a party.
5. No authorization or approval or other action
by, and no notice to or filing with, any governmental
authority or regulatory body is required for the due
execution, delivery and performance by the Parent of the
Support Agreement.
6. The Credit Agreement, the A Notes, the Support
Agreement and the Fee Letter are legal, valid and binding
obligations of the Borrower, enforceable against the Borrower
in accordance with their respective terms; and when completed
in the form thereof attached as Exhibit 1.01A-2 to the Credit
Agreement, and executed by a Senior Financial Officer and
delivered on behalf of the Borrower pursuant to corporate
authorization existing and as in effect on the date hereof,
each B Note will be a legal, valid and binding obligation of
the Borrower, enforceable against the Borrower in accordance
with its terms.
7. The Support Agreement is the legal, valid and
binding obligation of the Parent, enforceable against the
Parent in accordance with its terms.
8. Neither the Borrower nor the Parent is an
"investment company" as defined in the Investment Company Act
of 1940, as amended. The Borrower is not a "holding company"
as that term is defined in, and is not otherwise subject to
regulation under, the Public Utility Holding Company Act of
1935, as amended. The Parent is a "holding company" as that
term is defined in the Public Utility Holding Company Act of
1935, as amended, but is exempt from said Act except with
respect to the acquisition of securities in other public
utility companies and other public utility holding companies.
The opinions set forth in paragraphs 6 and 7, above, are
subject to the following qualifications:
(a) The enforceability of the Borrower's
obligations under the Credit Agreement and the other Loan
Documents to which it is, or is to be, a party, and the
enforceability of the Parent's obligations under the Support
Agreement, are subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar
law affecting creditors' rights generally.
(b) The enforceability of the Borrower's
obligations under the Credit Agreement and the other Loan
Documents to which it is, or is to be, a party, and the
enforceability of the Parent's obligations under the Support
Agreement, are subject to general principals of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law). Such principles of equity
are of general application and, in applying such principles, a
court, among other things, might not allow a contracting party
to exercise remedies in respect of a default deemed
immaterial, or might decline to order an obligor to perform
covenants. Such principles would include an expectation that
parties act with reasonableness and in good faith, and might
be applied, for example, to provisions which purport to grant
a party with the authority to exercise sole discretion or make
conclusive determinations.
(c) We note further that, in addition to the
application of equitable principles described above, courts
have imposed an obligation on contracting parties to act
reasonably and in good faith in the exercise of their
contractual rights and remedies, and may also apply public
policy considerations in limiting the right of parties seeking
to obtain indemnification.
Very truly yours,
EXHIBIT 3.01(a)(xii)-2
FORM OF OPINION OF GENERAL COUNSEL OF THE
BORROWER AND THE PARENT
[Date of Closing]
To each of the Lenders parties to the
Credit Agreement referred to below,
and to Citibank, N.A., as Agent
IES Diversified Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
3.01(a)(xii)(B) of the Third Amended and Restated Credit
Agreement, dated as of November ___, 1996 (the "Credit
Agreement"), among IES Diversified Inc. (the "Borrower"), the
Banks parties thereto and the other Lenders from time to time
parties thereto, and Citibank, N.A., as Agent. Terms defined
in the Credit Agreement and not otherwise defined herein are
used herein as therein defined.
I am Secretary of the Borrower and act as its counsel and
Vice President, General Counsel & Secretary of the Parent and
have acted as such in connection with the preparation,
execution and delivery of, and the Closing on this date under,
the Credit Agreement and the other Loan Documents.
In that capacity I have examined, or have arranged for
the examination by an attorney or attorneys under my general
supervision of:
(d) The Credit Agreement;
(e) The A Notes;
(f) The Support Agreement;
(g) The Articles of Incorporation of the Borrower and all
amendments thereto (the "Borrower Charter");
(h) The by-laws of the Borrower and all amendments thereto
(the "Borrower By-laws");
(i) The Articles of Incorporation of the Parent and all
amendments thereto (the "Parent Charter"); and
(j) The by-laws of the Parent and all amendments thereto (the
"Parent By-laws").
In addition, I, or an attorney or attorneys under my
general supervision, have examined the originals, or copies
certified to my or their satisfaction, of such other corporate
records of the Borrower and of the Parent, certificates of
public officials and of officers of the Borrower and of the
Parent, and agreements, instruments and other documents, as I
or such attorneys have deemed necessary as a basis for the
opinions expressed below. As to questions of fact material to
such opinions, I or such attorneys have, when relevant facts
were not independently established by me or by them, relied
upon certificates of the Borrower and of the Parent or their
respective officers or of public officials.
I have assumed (i) the due execution and delivery,
pursuant to due authorization, of the Credit Agreement by all
parties to such document (other than the Borrower), (ii) the
authenticity of all such documents submitted to me as
originals, (iii) the genuineness of all signatures (other than
those of the Borrower and of the Parent) and (iv) the
conformity to the originals of all such documents submitted to
me as copies.
I, or an attorney or attorneys under my general
supervision, have made such examination of law as in my or
their judgment is necessary or appropriate for purposes of
this opinion. I and such attorneys do not, however, purport
to be qualified to pass upon, and express no opinion as to,
the laws of any jurisdiction other than the laws of the State
of Iowa.
Based upon and subject to the foregoing, I am of the
opinion that:
1. Each of the Borrower and the Parent is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Iowa 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 the property owned or leased 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, results of operations or
prospects of the Borrower and its Subsidiaries, taken as a
whole, or of the Parent and its Subsidiaries, taken as a
whole.
2. The execution, delivery and performance by the
Borrower of the Credit Agreement, the Notes, the Support
Agreement and the Fee Letter are within the Borrower's
corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (a) the Borrower
Charter or the Borrower By-laws, (b) any law, rule,
regulation, order or judgment applicable to the Borrower,
(c) any contractual restriction arising under any agreement or
instrument evidencing indebtedness described in Schedule III
of the Credit Agreement, or (d) to my knowledge, any other
legal or contractual restriction binding on or affecting the
Borrower or its properties; and such execution, delivery and
performance do not result in or require the creation or
imposition of any Lien (other than the Lien of the Agent for
the benefit of the Lenders upon the rights of the Borrower
under the Support Agreement) upon or with respect to any of
its properties under any agreement or instrument evidencing
indebtedness described in Schedule III of the Credit Agreement
or, to my knowledge, under any other agreement or instrument.
The Credit Agreement, the A Notes, the Support Agreement and
the Fee Letter have been duly executed and delivered on behalf
of the Borrower. When completed in the form thereof attached
as Exhibit 1.01A-2 to the Credit Agreement, and executed by a
Senior Financial Officer and delivered on behalf of the
Borrower, each B Note will have been duly executed and
delivered on behalf of the Borrower.
3. The execution, delivery and performance by the
Parent of the Support Agreement are within the Parent's
corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (a) the Parent Charter
or the Parent By-laws, (b) any law, rule, regulation, order or
judgment applicable to the Parent, (c) any contractual
restriction arising under (i) the $1,500,000 line of credit
provided to the Parent by Firstar Bank or (ii) any agreement
or instrument evidencing indebtedness described in Schedule 2
of the Support Agreement, or (d) to my knowledge, any other
legal or contractual restriction binding on or affecting the
Parent or its properties; and such execution, delivery and
performance do not result in or require the creation or
imposition of any Lien upon or with respect to any of its
properties under the $1,500,000 line of credit provided to the
Parent by Firstar Bank or under any agreement or instrument
evidencing indebtedness described in Schedule 2 of the Support
Agreement, or, to my knowledge, under any other agreement or
instrument. The Support Agreement has been duly executed and
delivered on behalf of the Parent.
4. No authorization or approval or other action
by, and no notice to or filing with, any governmental
authority or regulatory body is required for the due
execution, delivery and performance by the Borrower of the
Credit Agreement and the other Loan Documents to which it is,
or is to be, a party.
5. No authorization or approval or other action
by, and no notice to or filing with, any governmental
authority or regulatory body is required for the due
execution, delivery and performance by the Parent of the
Support Agreement.
6. There is no pending or, to my knowledge,
threatened action or proceeding affecting the Borrower or its
properties before any court, governmental agency or
arbitrator, that could reasonably be expected, if adversely
determined, to materially and adversely affect the business,
financial condition, operations, results of operations or
prospects of the Borrower, or affect the legality, validity or
enforceability of the Credit Agreement or any other Loan
Document to which the Borrower is, or is to be, a party.
7. There is no pending or, to my knowledge,
threatened action or proceeding affecting the Parent or its
properties before any court, governmental agency or
arbitrator, that could reasonably be expected, if adversely
determined, to materially and adversely affect the business,
financial condition, operations, results of operations or
prospects of the Parent, or affect the legality, validity or
enforceability of the Support Agreement.
I authorize Winthrop, Stimson, Putnam & Roberts, special
New York counsel to the Borrower and the Parent, to rely on
this opinion respecting matters covered by or relating to the
laws of the State of Iowa.
Very truly yours,
EXHIBIT 3.01(a)(xii)-3
FORM OF KING & SPALDING OPINION
[Date of Closing]
To each of the Lenders parties to the
Credit Agreement referred to below
and to Citibank, as Agent
IES Diversified, Inc.
Ladies and Gentlemen:
We have acted as special New York counsel to Citibank,
N.A., individually and as Agent, in connection with the
preparation, execution and delivery of the Third Amended and
Restated Credit Agreement, dated as of November __, 1996 (the
"Credit Agreement"), among IES Diversified, Inc., the Banks
party thereto and Citibank, N.A., as Agent for the Banks.
Unless otherwise indicated, terms defined in the Credit
Agreement are used herein as therein defined.
In that connection, we have examined the following
documents:
(1) counterparts of the Credit Agreement, executed
by the Borrower, the Agent and the Banks; and
(2) a counterpart of the Support Agreement,
executed by the Parent; and
(3) the other documents furnished by the Borrower
pursuant to Section 3.01 of the Credit Agreement,
including the opinion of Winthrop, Stimson, Putnam &
Roberts, special New York counsel for the Borrower and
Stephen W. Southwick, Counsel for the Borrower and Vice
President, General Counsel and Secretary of the Parent
(collectively, the "Opinions").
In our examination of the documents referred to above, we
have assumed the authenticity of all such documents submitted
to us as originals, the genuineness of all signatures, the due
authority of the parties executing such documents and the
conformity to the originals of all such documents submitted to
us as copies. We have also assumed that each of the Banks and
the Agent has duly executed and delivered, with all necessary
power and authority (corporate and otherwise), the Credit
Agreement.
To the extent that our opinions expressed below involve
conclusions as to matters governed by law other than the law
of the State of New York, we have relied upon the Opinions and
have assumed without independent investigation the correctness
of the matters set forth therein, our opinions expressed below
being subject to the assumptions, qualifications and
limitations set forth in the Opinions. As to matters of fact,
we have relied solely upon the documents we have examined.
Based upon the foregoing, and subject to the
qualifications set forth below, we are of the opinion that:
(i) The Credit Agreement and the A Notes
are, and the B Notes will be, when executed and delivered by
the Borrower for value, the legal, valid and binding
obligations of the Borrower enforceable against the Borrower
in accordance with their respective terms.
(ii) The Support Agreement is the legal, valid and
binding obligation of the Parent enforceable against the
Parent in accordance with its terms.
(iii) While we have not independently considered the
matters covered by the Opinions to the extent necessary to
enable us to express the conclusions stated therein, the
Opinions and the other documents referred to in item (3) above
are substantially responsive to the corresponding requirements
set forth in Section 3.01 of the Credit Agreement pursuant to
which the same have been delivered.
Our opinions are subject to the following
qualifications:
(a) Our opinions in paragraphs (i) and (ii) above
are subject to the effect of any applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium
or similar law affecting creditors' rights generally.
(b) Our opinions in paragraphs (i) and (ii) above
are subject to the effect of general principles of equity,
including (without limitation) concepts of materiality,
reasonableness, good faith and fair dealing (regardless of
whether considered in a proceeding in equity or at law).
(c) We note further that, in addition to the
application of equitable principles described above, courts
have imposed an obligation on contracting parties to act
reasonably and in good faith in the exercise of their
contractual rights and remedies, and may also apply public
policy considerations in limiting the right of parties seeking
to obtain indemnification under circumstances where the
conduct of such parties in the circumstances in question is
determined to have constituted negligence.
(d) We express no opinion herein as to (i)
Section 8.05 of the Credit Agreement or Section 14 of the
Support Agreement, (ii) the enforceability of provisions
purporting to grant to a party conclusive rights of
determination, (iii) the availability of specific performance or
other equitable remedies, (iv) the enforceability of rights to
indemnity under Federal or state securities laws and (v) the
enforceability of waivers by parties of their respective
rights and remedies under law.
(e) Our opinions expressed above are limited to the
law of the State of New York and the Federal law of the United
States, and we do not express any opinion herein concerning
any other law. Without limiting the generality of the
foregoing, we express no opinion as to the effect of the law
of any jurisdiction other than the State of New York wherein
any Bank may be located or wherein enforcement of the Credit
Agreement, any Note or the Support Agreement may be sought
that limits the rates of interest legally chargeable or
collectible.
The foregoing opinion is solely for your benefit and may
not be relied upon by any other Person other than any Person
that may become a Bank under the Credit Agreement after the
date hereof.
Very truly yours,
MEO:IS:pc
EXHIBIT 8.07
FORM OF LENDER ASSIGNMENT
Dated__________, 19__
Reference is made to the Third Amended and Restated
Credit Agreement, dated as of November _, 1996 (said
Agreement, as it may hereafter be amended or otherwise
modified from time to time, being the "Credit Agreement", the
terms defined therein and not otherwise defined herein being
used herein as therein defined), among IES Diversified Inc.,
an Iowa corporation (the "Borrower"), the Lenders named
therein and the Agent. Pursuant to the Credit Agreement,
_________________ (the "Assignor") has committed to make
advances ("Advances") to the Borrower, which Advances are
evidenced by a promissory note (the "Note") issued by the
Borrower to the Assignor.
The Assignor and _______________ (the "Assignee")
agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from
the Assignor, that interest in and to all of the Assignor's
rights and obligations under the Credit Agreement as of the
Effective Date (as defined below) which represents the
percentage interest specified on Schedule 1 of all outstanding
rights and obligations under the Credit Agreement (the
"Assigned Interest"), including, without limitation, such
interest in the Assignor's Commitment, the Advances owing to
the Assignor, and the Note[s] held by the Assignor. After
giving effect to such sale and assignment, the Assignee's
Commitment and the amount of the Advances owing to the
Assignee will be as set forth in Section 2 of Schedule 1. The
effective date of this sale and assignment shall be the date
specified on Schedule 1 hereto (the "Effective Date").
2. On the Effective Date, the Assignee will pay to
the Assignor, in same day funds, at such address and account
as the Assignor shall advise the Assignee, $___________, and
the sale and assignment contemplated hereby shall thereupon
become effective. From and after the Effective Date, the
Assignor agrees that the Assignee shall be entitled to all
rights, powers and privileges of the Assignor under the Credit
Agreement and the Note[s] to the extent of the Assigned
Interest, including without limitation (1) the right to
receive all payments in respect of the Assigned Interest for
the period from and after the Effective Date, whether on
account of principal, interest, fees, indemnities in respect
of claims arising after the Effective Date, increased costs,
additional amounts or otherwise, (2) the right to vote and to
instruct the Agent under the Credit Agreement according to its
Percentage based on the Assigned Interest, (3) the right to
set-off and to appropriate and apply deposits of the Borrower
as set forth in the Credit Agreement and (4) the right to
receive notices, requests, demands and other communications.
The Assignor agrees that it will promptly remit to the
Assignee any amount received by it in respect of the Assigned
Interest (whether from the Borrower, the Agent or otherwise)
in the same funds in which such amount is received by the
Assignor.
3. The Assignor (i) represents and warrants that
it is the legal and beneficial owner of the interest being
assigned by it hereunder and that such interest is free and
clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in
connection with the Credit Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or
document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its
obligations under the Credit Agreement or any other instrument
or document furnished pursuant thereto; (iv) makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of the Parent or the
performance or observance by the Parent of any of its
obligations under the Support Agreement or any other
instrument or document furnished pursuant thereto; and
(v) attaches the Note[s] referred to in paragraph 1 above and
requests that the Agent exchange such Note[s] for a new Note
payable to the order of the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto or new
Notes payable to the order of the Assignee in an amount equal
to the Commitment assumed by the Assignee pursuant hereto and
the Assignor in an amount equal to the Commitment retained by
the Assignor under the Credit Agreement, respectively, as
specified on Schedule 1 hereto. Except as specified in this
Section 3, the assignment of the Assigned Interest shall be
without recourse to the Assignor.
4. The Assignee (i) confirms that it has received
a copy of the Credit Agreement, 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 this Lender Assignment; (ii) agrees
that it will, independently and without reliance upon the
Agent, the Assignor 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 Credit Agreement; (iii) confirms
that it is an Eligible Assignee; (iv) appoints and authorizes
the Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with
such powers as are reasonably incidental thereto; (v) agrees
that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are
required to be performed by it as a Lender; [and]
(vi) specifies as its CD Lending Office, Domestic Lending
Office (and address for notices) and Eurodollar Lending Office
the offices set forth beneath its name on the signature pages
hereof [and (vii) attaches the forms prescribed by the
Internal Revenue Service of the United States certifying as to
the Assignee's status for purposes of determining exemption
from United States withholding taxes with respect to all
payments to be made to the Assignee under the Credit Agreement
and the Notes or such other documents as are necessary to
indicate that all such payments are subject to such rates at a
rate reduced by an applicable tax treaty]. 1
5. Following the execution of this Lender
Assignment by the Assignor and the Assignee, it will be
delivered to the Agent for acceptance and recording by the
Agent. Upon such acceptance and recording by the Agent, as of
the Effective Date, (i) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Lender
Assignment, have the rights and obligations of a Lender
thereunder and under the other Loan Documents and (ii) the
Assignor shall, to the extent provided in this Lender
Assignment, relinquish its rights and be released from its
obligations under the Credit Agreement and the other Loan
Documents.
6. Upon such acceptance and recording by the
Agent, from and after the Effective Date, the Agent shall make
all payments under the Credit Agreement and the Notes in
respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and commitment
fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments
under the Credit Agreement and the Notes for periods prior to
the Effective Date directly between themselves.
7. This Lender Assignment may be executed in any
number of counterparts and by different parties in separate
counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall
constitute but one and the same instrument.
8. This Lender Assignment shall be governed by,
and construed in accordance with, the laws of the State of New
York.
IN WITNESS WHEREOF, the parties hereto have caused this
Lender Assignment to be executed by their respective officers
thereunto duly authorized, as of the date first above written,
such execution being made on Schedule 1 hereto.
_______________
1 If the Assignee is organized under the laws of a
jurisdiction outside the United States.
SCHEDULE 1
to
LENDER ASSIGNMENT
Dated__________, 19__
Section 1.
Percentage Interest: _____%
Section 2.
Assignee's Commitment: $ _____
Aggregate Outstanding Principal
Amount of A Advances owing to the Assignee: $ _____
An A Note payable to the order of the Assignee
Dated:__________, 19__
Principal amount: _____
An A Note payable to the order of the Assignor
Dated:__________, 19__
Principal amount: _____
Aggregate Outstanding Principal
Amount of B Advances owing to the Assignee: $ _____
A B Note payable to the order of the Assignee
Dated:__________, 19__
Principal amount: _____
A B Note payable to the order of the Assignor
Dated:__________, 19__
Principal amount: _____
Section 3.
Effective Date: __________, 19
[NAME OF ASSIGNOR]
By _______________
Title:
[NAME OF ASSIGNEE]
By _______________
Title:
CD Lending Office:
[Address]
Domestic Lending Office (and
address for notices):
[Address]
Eurodollar Lending Office:
[Address]
Accepted this _____ day
of __________, 19__
CITIBANK, N.A., as Agent
By __________
Title:
SCHEDULE I
IES DIVERSIFIED INC.
Third Amended and Restated Credit Agreement, dated as of
November 20, 1996, among
IES Diversified Inc., the Banks named therein and Citibank,
N.A., as Agent
Name of Bank Commitment Domestic Lending Office CD Lending Office Eurodollar Lending Office
ABN AMRO N.V. $28,000,000 ABN AMRO Bank Same as Domestic Same as Domestic
N.V. Chicago Branch Lending Office Lending Office
135 South LaSalle Street,
Suite 625
Chicago, IL 60603
Telephonr: 312.904.2007
Telecopy: 312.606.8425
Attention: Barbara Popp
Barclays $20,000,000 222 Broadway Same as Domestic Same as Domestic
Bank PLC New York, New York 10038 Lending Office Lending Office
Telephone: 212.412.3571
Telecopy: 212.412.5002
Attention: Stephanie Gledhill
The Chase $28,000,000 One Chase Plaza, 8th Floor Same as Domestic Same as Domestic
Manhattan New York, NY 10081 Lending Office Lending Office
Bank Telephone: 212.552.7692
Telecopy: 212.552.5777
Attention: Lynett Lang
CIBC Inc. $40,000,000 Two Paces West Same as Domestic Same as Domestic
2727 Paces Ferry Road, Lending Office Lending Office
Suite 1200
Atlanta, Georgia
Telephone: 404.319.4836
Telecopy: 404.319.4950
Attention: Clare Coyne
Citibank, $40,000,000 One Court Square, 7th Floor Same as Domestic Same as Domestic
N.A. Zone 2 Lending Office Lending Office
Long Island City, NY 11120
Telecopy: 718.248.4490
Attention: Bank Loan Syndications
The First $28,000,000 One First National Plaza, Same as Domestic Same as Domestic
National Suite 0363 Lending Office Lending Office
Bank of Chicago, Illinois 60670-0363
Chicago Telephone: 312.732.9780
Telecopy: 312.732.3055 /
312.732.6485
Attention: Robert G. Bussa
The Fuji $28,000,000 U.S. Corporate Banking Same as Domestic Same as Domestic
Bank, 225 West Wacker Drive, Lending Office Lending Office
Limited, Suite 2000
Chicago Chicago, Illinois 60606
Branch Telephone: 312.621.0526
Telecopy: 312.621.0539
Attention: James Bell
Mellon $40,000,000 One Mellon Bank Center-151-4425 Same as Domestic Same as Domestic
Bank Pittsburgh, Pennsylvania Lending Office Lending Office
15258-0001
Telephone: 412.236.2988
Telecopy: 412.234.6375
Attention: Jacquelyn S. Peters
Norwest $ 8,000,000 101 Third Avenue S.W. Same as Domestic Same as Domestic
Bank Iowa, Cedar Rapids, Iowa 52404 Lending Office Lending Office
N.A. Telephone: 319.368.1143
Telecopy: 319.368.1299
Attention: R. Troy Hansen
The Sanwa $28,000,000 10 South Wacker Drive, Same as Domestic Same as Domestic
Bank, Ltd. 31st Floor Lending Office Lending Office
Chicago Chicago, Illinois 60606
Branch Telephone: 312.368.3016
Telecopy: 312.346.6677
Telex: 3735188
Attention: Beverly Wyckoff
Union Bank $12,000,000 445 South Figueroa Street Same as Domestic Same as Domestic
Los Angeles, California 90071 Lending Office Lending Office
Telephone: 213.236.5809
Telecopier: 213.236.4096
Attention: John M. Edmonston
SCHEDULE II
LIENS
Subsidiary Amount Holder Property
1. Centerplace
Limited $1,029,724.00 Norwest Bank River Place Apartments
Cedar Rapids, Iowa
2. 2060
Partnership $9,485,088.00 Firstar Bank 201/221 Town Center
Building
Cedar Rapids, Iowa
3. 2002
Partnership $1,553,811.00 Brenton Bank Iowa Building
Cedar Rapids, Iowa
SCHEDULE III
DEBT
Subsidiary Amount Holder Property
1. Centerplace Limited $1,029,724.00 Norwest Bank Mortgage
2. 2060 Partnership $9,485,088.00 Firstar Bank Mortgage
3. 2002 Partnership $1,553,811.00 Brenton Bank Mortgage