December 16, 1999
Indiana Energy, Inc.
1630 North Meridian Street
Indianapolis, Indiana 46202-1496
Attention: Carl L. Chapman
Re: Project Mars 364-Day Revolving Credit Facility
Commitment Letter
Ladies and Gentlemen:
Indiana Energy, Inc. ("you" or "Parent") has advised Merrill
Lynch Capital Corporation ("Merrill Lynch" or "we" or "us") that
(i) you or one of your affiliates have entered into an
acquisition agreement (the "Acquisition Agreement") to acquire
(the "Acquisition") certain gas utility assets ("Gas Utility") of
Dayton Power & Light ("Seller"); and (ii) in connection with the
consummation of the Acquisition, Parent or a wholly-owned
subsidiary thereof ("Borrower") will enter into the senior
unsecured 364-day revolving credit facility (the "Credit
Facility") described herein.
The sources and uses of the funds necessary to consummate
the Acquisition and the other transactions contemplated hereby
are set forth on Annex I to this Commitment Letter.
The Acquisition, the entering into and borrowings under the
Credit Facility by Borrower and the other transactions
contemplated hereby entered into and consummated in connection
with the Acquisition are herein referred to as the
"Transactions". You have advised us that you intend to refinance
the Credit Facility (or replace commitments thereunder in full)
as soon as practicable with the proceeds of unsecured public or
private debt securities or other public or private securities
issued by Parent or its subsidiaries (the "Take-Out Securities").
You have requested that Merrill Lynch commit to provide to
Borrower up to $435.0 million aggregate principal amount under
the Credit Facility to finance the Acquisition or to backstop,
replace or refinance commercial paper or other sources of funding
used to effect the Acquisition and to pay certain related fees
and expenses.
Accordingly, subject to the terms and conditions set forth
below, Merrill Lynch hereby agrees with you as follows:
1. Commitment. Merrill Lynch hereby commits to provide to
Borrower the Credit Facility upon the terms and subject to the
conditions set forth or referred to herein, in the 364-Day
Revolving Credit Facility Fee Letter (the "Fee Letter") dated the
date hereof and delivered to you, and in the 364-Day Revolving
Credit Facility Summary of Terms and Conditions attached hereto
(and incorporated by reference herein) as Exhibit A (the "Term
Sheet").
2. Syndication. We reserve the right and intend, prior to
or after the execution of the definitive documentation for the
Credit Facility (the "Credit Documents"), to syndicate all or a
portion of our commitments to one or more financial institutions
(together with Merrill Lynch, the "Lenders"). Our commitment
hereunder is subject to Merrill Lynch (or one of its affiliates)
acting as sole and exclusive lead arranger and book-running
manager of and sole and exclusive syndication agent for the
Credit Facility. We (or one of our affiliates) will manage all
aspects of the syndication (in consultation with you), including
decisions as to the selection of potential Lenders to be approached
and when they will be approached, when their commitments will be
accepted, which Lenders will participate and the final allocations
of the commitments among the Lenders, and we will exclusively
perform all functions and exercise all authority as customarily
performed and exercised in such capacities, including selecting
counsel for the Lenders and negotiating the Credit Documents.
Any agent or arranger titles (including co-agents) awarded to
other Lenders are subject to our prior approval and shall not
entail any role with respect to the matters referred to in this
paragraph without our prior consent. You agree that no Lender
will receive compensation outside the terms contained herein and in
the Fee Letter in order to obtain its commitment to participate in
the Credit Facility. We may select (with your consent, not to be
unreasonably withheld, delayed or conditioned) a Lender to act as
an administrative agent (the "Administrative Agent") for the
Credit Facility to perform such ministerial and administrative
functions as we shall reasonably designate.
You understand that we intend to commence the
syndication of the Credit Facility promptly, and you agree
actively to assist us in achieving a timely syndication that is
reasonably satisfactory to us in consultation with you. The
syndication efforts will be accomplished by a variety of means,
including direct contact during the syndication between senior
management, advisors and affiliates of Parent on the one hand and
the proposed Lenders on the other hand and Parent hosting, with
Merrill Lynch, at least one meeting with prospective Lenders at
such times and places as we may reasonably request. You agree
to, upon our request, (a) provide, and cause your affiliates and
advisors to provide, to us all information reasonably requested
by us to successfully complete the syndication, including the
information and projections (including updated projections)
contemplated hereby, and (b) assist, and cause your affiliates
and advisors to assist, us in the preparation of a Confidential
Information Memorandum and other marketing materials (the
contents of which you shall be solely responsible for) to be used
in connection with the syndication, including making available
representatives of Parent. You also agree to use your best
efforts to ensure that our syndication efforts benefit materially
from your (and your affiliates') existing lending relationships.
3. Fees. As consideration for our commitment hereunder
and our agreement to arrange, manage, structure and syndicate the
Credit Facility, you agree to pay or cause to be paid to us the
fees as set forth in the Fee Letter.
4. Conditions. Merrill Lynch's commitment hereunder is
subject to the conditions set forth elsewhere herein and in the
Term Sheet. For purposes of this Commitment Letter and the Term
Sheet, the "subsidiaries" of Borrower shall be deemed to include
those who will become subsidiaries of Borrower in connection with
the Transactions.
Our commitment hereunder is also subject to (a) no
material disruption or material adverse change (or development that
could reasonably be expected to result in a material adverse
change) having occurred and being continuing in or affecting the
loan syndication or financial, banking or capital market conditions
generally from those in effect on the date hereof that,
individually or in the aggregate in our reasonable judgment,
materially adversely affects our ability to syndicate the Credit
Facility; (b) we shall be satisfied that, after the date hereof and
prior to and during the syndication of the Credit Facility, none of
Parent, Borrower or any of their respective subsidiaries or
affiliates shall have syndicated or issued, attempted to syndicate
or issue, announced or authorized the announcement of, or engaged
in discussions concerning the imminent syndication or issuance of
any debt facility or debt security of any of them, including
renewals thereof, other than the Credit Facility and the Take-Out
Securities and others which would not in our reasonable judgment
reasonably be expected to have a material adverse effect upon the
syndication of the Credit Facility; (c) Parent's long-term, senior
unsecured, non-credit-enhanced indebtedness shall be rated no lower
than Baa1 by Moody's or BBB+ by S&P; (d) Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("MLPF&S") shall have been retained by
you as sole and exclusive underwriter, placement agent or initial
purchaser with respect to any refinancing of amounts outstanding or
commitments under the Credit Facility pursuant to an engagement
letter (the "Engagement Letter") in form and substance reasonably
satisfactory to MLPF&S and such Engagement Letter shall be in full
force and effect and you shall not be in breach thereof; and
(e) none of the Information and Projections (each as defined in
Section 5 hereof) shall be misleading or incorrect in any material
respect taken as a whole, in light of the circumstances under which
such statements were made.
5. Information and Investigations. You hereby represent
and covenant that (a) all information and data (excluding
financial projections) that have been or will be made available
by you or any of your affiliates, representatives or advisors to
us or any Lender (whether prior to or on or after the date
hereof) in connection with the Transactions, taken as a whole
(the "Information"), is and will be complete and correct in all
material respects and does not and will not, taken as a whole,
contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements
contained therein not misleading in light of the circumstances
under which such statements are made, and (b) all financial
projections concerning, Parent, Borrower, Gas Utility and their
respective subsidiaries and the transactions contemplated hereby
(the "Projections") that have been made or will be prepared by or
on behalf of you or any of your affiliates, representatives or
advisors and that have been or will be made available to us or
any Lender in connection with the transactions contemplated
hereby have been and will be prepared in good faith based upon
assumptions believed by you to be reasonable. You agree to
supplement the Information and the Projections from time to time
until the Closing Date and, if requested by us, for a reasonable
period thereafter (not to exceed 60 days) necessary to complete the
syndication of the Credit Facility so that the representation and
covenant in the preceding sentence remain correct in all material
respects. In syndicating the Credit Facility we will be entitled
to use and rely primarily on the Information and the Projections
without responsibility for independent check or verification
thereof.
6. Indemnification. You agree (i) to indemnify and hold
harmless Merrill Lynch and each of the other Lenders and their
respective officers, directors, employees, affiliates, agents and
controlling persons (Merrill Lynch and each such other person being
an "Indemnified Party") from and against any and all losses,
claims, damages, costs, expenses and liabilities, joint or several,
to which any Indemnified Party may become subject under any
applicable law, or to the extent related to or arising out of or in
connection with this Commitment Letter, the Fee Letter, the Term
Sheet, the Credit Facility, the loans under the Credit Facility,
the use of proceeds of any such loan, any of the Transactions or
any related transaction and the performance by any Indemnified
Party of the services contemplated hereby and will reimburse each
Indemnified Party for any and all reasonable expenses (including
reasonable counsel fees and expenses) as they are incurred in
connection with the investigation of or preparation for or defense
of any pending or threatened claim or any action or proceeding
arising therefrom, whether or not such Indemnified Party is a party
and whether or not such claim, action or proceeding is initiated or
brought by or on behalf of you, Borrower, Seller, or any of your or
their respective affiliates and whether or not any of the
Transactions are consummated or this Commitment Letter is
terminated, except to the extent resulting from such Indemnified
Party's bad faith, gross negligence or willful misconduct and
(ii) not to assert any claim against any Indemnified Party for
consequential, punitive or exemplary damages on any theory of
liability in connection in any way with the transactions described
in or contemplated by this Commitment Letter.
You agree that, without our prior written consent,
neither you nor any of your affiliates or subsidiaries will settle,
compromise or consent to the entry of any judgment in any pending
or threatened claim, action or proceeding in respect of which
indemnification has been or could be sought under the
indemnification provisions hereof (whether or not any other
Indemnified Party is an actual or potential party to such claim,
action or proceeding), unless such settlement, compromise or
consent (i) includes an unconditional written release in form and
substance satisfactory to the Indemnified Parties of each
Indemnified Party from all liability arising out of such claim,
action or proceeding and (ii) does not include any statement as to
or an admission of fault, culpability or failure to act by or on
behalf of any Indemnified Party.
In the event that an Indemnified Party is requested or
required to appear as a witness in any action brought by or on
behalf of or against you or any of your subsidiaries or affiliates
in which such Indemnified Party is not named as a defendant, you
agree to reimburse such Indemnified Party for all reasonable out-
of-pocket expenses incurred by it in connection with such
Indemnified Party's appearing and preparing to appear as such a
witness, including, without limitation, the reasonable fees and
expenses of its legal counsel.
7. Expenses. You agree to reimburse us and our affiliates
for our and their reasonable expenses upon our request made from
time to time (including, without limitation, all reasonable due
diligence investigation expenses, fees of consultants engaged with
your consent (not to be unreasonably withheld), syndication
expenses (including printing, distribution, and bank meetings),
appraisal and valuation fees and expenses, travel expenses,
duplication fees and expenses, audit fees, search fees, filing and
recording fees and the reasonable fees, disbursements and other
charges of counsel (and any local counsel) and any sales, use or
similar taxes (and any additions to such taxes) related to any of
the foregoing) incurred in connection with the negotiation,
preparation, execution and delivery, waiver or modification,
collection and enforcement of this Commitment Letter, the Term
Sheet, the Fee Letter and the Credit Documents and whether or not
such fees and expenses are incurred before or after the date hereof
or any loan documentation is entered into or the Transactions are
consummated or any extensions of credit are made under the Credit
Facility or this Commitment Letter is terminated or expires.
8. Confidentiality. This Commitment Letter, the Term
Sheet the contents of any of the foregoing and our and/or our
affiliates' activities pursuant hereto or thereto are
confidential and shall not be disclosed by or on behalf of you or
any of your affiliates to any person without our prior written
consent, except that you may disclose this Commitment Letter and
the Term Sheet (i) to your and Seller's respective officers,
directors, employees and advisors, and then only in connection
with the Transactions and on a confidential need-to-know basis
and (ii) as you are required to make by applicable law or
compulsory legal process (based on the advice of legal counsel);
provided that such confidentiality obligations shall terminate
upon your acceptance hereof. You agree that you will permit us
to review and approve any reference to any of us or any of our
affiliates in connection with the Credit Facility or the
transactions contemplated hereby contained in any press release
or similar public disclosure prior to public release; provided
that we shall not unreasonably withhold or delay our approval.
You agree that we and our affiliates may share information
concerning you, Seller and your and its respective subsidiaries
and affiliates among ourselves solely in connection with the
performance of our services hereunder and the evaluation and
consummation of financings and Transactions contemplated hereby.
9. Termination. Our commitments hereunder are based upon
the financial and other information regarding Parent, Borrower
and Gas Utility previously provided to us. In the event that by
means of continuing review or otherwise we become aware of or
discover new information or developments concerning conditions or
events previously disclosed to us that is inconsistent in any
material adverse respect with the Projections or the Information
provided to us prior to the date hereof, or if any event or
condition has occurred or become known that in our judgment has
had or would reasonably be expected to have a material adverse
effect on the business, results of operations or financial
condition of Parent and its subsidiaries taken as a whole (after
giving effect to the Transactions) since September 30, 1999, this
Commitment Letter and Merrill Lynch's commitment hereunder shall
terminate upon written notice by Merrill Lynch. In addition,
Merrill Lynch's commitment hereunder shall terminate in its
entirety (A) on July 1, 2000 if the Credit Documents are not
executed and delivered by Borrower and the Lenders by such date
(subject to extension if such delay is due to failure to obtain
all necessary regulatory approvals to October 1, 2000, with the
consent of the Lead Arranger in its sole discretion) and (B) on
the date of execution and delivery of the Credit Documents by
Borrower and the Lenders. Notwithstanding the foregoing, the
provisions of Sections 6, 7, 8 and 11 hereof shall survive any
termination pursuant to this Section 9.
10. Assignment; etc. This Commitment Letter and our
commitment hereunder shall not be assignable by any party hereto
without the prior written consent of the other parties hereto,
and any attempted assignment shall be void and of no effect;
provided, however, that nothing contained in this Section 10
shall prohibit us (in our sole discretion) from (i) performing
any of our duties hereunder through any of our affiliates (who
will be bound by the provisions hereof applicable to Merrill
Lynch), and you will owe any related duties (including those set
forth in Section 2 above) to any such affiliate, and
(ii) granting (in consultation with you) participations in, or
selling (in consultation with you) assignments of all or a
portion of, the commitments or the loans under the Credit
Facility pursuant to arrangements satisfactory to us. This
Commitment Letter is solely for the benefit of the parties hereto
and does not confer any benefits upon, or create any rights in
favor of, any other person. It is understood and agreed that
your merger with and into Vectren Corporation shall not affect
our obligations hereunder and that, upon the consummation of such
merger, Vectren Corporation will succeed to your rights and
obligations hereunder.
11. Governing Law; Waiver of Jury Trial. This Commitment
Letter shall be governed by, and construed in accordance with,
the laws of the State of New York. Each of the parties hereto
waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise)
related to or arising out of any of the Transactions or the other
transactions contemplated hereby, or the performance by us or any
of our affiliates of the services contemplated hereby.
12. Amendments; Counterparts; etc. No amendment or waiver
of any provision hereof or of the Term Sheet shall be effective
unless in writing and signed by the parties hereto and then only
in the specific instance and for the specific purpose for which
given. This Commitment Letter, the Engagement Letter, the Term
Sheet and the Fee Letter are the only agreements between the
parties hereto with respect to the matters contemplated hereby
and thereby and set forth the entire understanding of the parties
with respect thereto. This Commitment Letter 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. Delivery of an executed
counterpart by telecopier shall be effective as delivery of a
manually executed counterpart.
13. Public Announcements; Notices. We may, subject to your
prior consent (not to be unreasonably withheld, delayed or
conditioned) at our expense, publicly announce as we may choose
the capacities in which we or our affiliates have acted
hereunder. Any notice given pursuant hereto shall be mailed or
hand delivered in writing, if to (i) you, at your address set
forth on page one hereof, with a copy to Ronald E. Christian,
Esq., at 1630 North Meridian Street, Indianapolis, Indiana 46202;
and (ii) Merrill Lynch, at World Financial Center, North Tower,
250 Vesey Street, New York, New York 10281, Attention:
Christopher K. Stout, with a copy to Michael E. Michetti, Esq.,
at Cahill Gordon & Reindel, 80 Pine Street, New York, New York
10005.
(Signature Page Follows)
Please confirm that the foregoing correctly sets forth our
agreement of the terms hereof and the Fee Letter by signing and
returning to Merrill Lynch the duplicate copy of this letter and
the Fee Letter enclosed herewith. Unless we receive your executed
duplicate copies hereof and thereof by 5:00 p.m., New York City
time, on December 17, 1999, our commitment hereunder will expire at
such time.
We are pleased to have this opportunity and we look forward to
working with you on this transaction.
Very truly yours,
MERRILL LYNCH CAPITAL CORPORATION
By: ______________________________
Name:
Title:
Accepted and agreed to as of
the date first written above:
INDIANA ENERGY, INC.
By: ______________________________
Name:
Title:
Annex 1
Sources and Uses of Funds
(in millions)
Sources Uses
--------- -----
Commercial paper issuance Cash purchase price of
or drawings under Credit Gas Utility 425.0
Facility 433.0
Estimated fees and
expenses 8.0
------ ------
Total Sources 433.0 Total Uses 433.0
====== ======
CONFIDENTIAL EXHIBIT A
364-DAY REVOLVING CREDIT FACILITY
SUMMARY OF TERMS AND CONDITIONS*
Borrower: Indiana Energy, Inc. ("Parent") or a
wholly-owned subsidiary thereof (Parent or
such subsidiary, "Borrower").
Sole Lead Arranger, Book-
running Manager and
Syndication Agent: Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("MLPF&S") will
act as sole and exclusive lead arranger,
book-running manager and syndication agent
(the "Lead Arranger").
Administrative Agent:A Lender or other financial institution to
be selected by the Lead Arranger with the
consent (not to be unreasonably withheld)
of Borrower (the "Administrative Agent").
Lenders: Merrill Lynch Capital Corporation (or one
of its affiliates) and a syndicate of
financial institutions (the "Lenders")
arranged by the Lead Arranger in
consultation with Borrower.
Credit Facility: Senior Unsecured 364-Day Revolving Credit
Facility (the "Credit Facility"; loans
thereunder, "Revolving Loans").
Principal Amount: Up to $435.0 million.
Documentation: Usual and customary for facilities and
transactions of this type and reasonably
acceptable to Borrower and the Lenders.
The documentation for the Credit Facility
will include, among others, a credit
agreement (the "Credit Agreement") and
other appropriate documents (collectively,
the "Credit Documents").
Transactions: As described in the Commitment Letter.
Availability/Purpose:To finance (or to backstop, replace or
refinance commercial paper or other funding
sources used to effect) the Acquisition and
to pay related fees and expenses and for
working capital and general corporate
purposes on a fully revolving basis,
subject to the terms and conditions set
forth in the Credit Documents, until the
date that is 364 days after the Closing
Date (the "Commitment Termination Date").
Term-out Option: Borrower shall have the right to convert on
the Commitment Termination Date outstanding
Revolving Loans to term loans (the "Term
Loans", the Revolving Loans and the Term
Loans, "Loans") in an amount not to exceed
50% of the commitments then in effect
maturing on the second anniversary of the
Closing Date, subject to no Default being
continuing after giving effect thereto,
payment of a fee to the Lenders on the
aggregate principal amount extended to be
agreed upon between Borrower and the Lead
Arranger and customary notice provisions.
Maturity: Outstanding Revolving Loans not converted
to Term Loans shall mature on the
Commitment Termination Date; Term Loans
shall mature on the second anniversary of
the Closing Date.
Interest Rates and Fees:
Interest rates and fees in connection with
the Credit Facility will be as specified on
Annex I attached hereto.
Default Rate: Overdue principal, interest and other
amounts shall bear interest at a rate per
annum equal to 2% in excess of the
applicable interest rate (including
applicable margin).
Guarantee: If Borrower is a subsidiary of Parent, the
Credit Facility will be unconditionally and
irrevocably guaranteed on a senior
unsecured basis by Parent.
Ranking: The Credit Facility will be a senior
obligation of Borrower ranking pari passu
with other senior unsecured indebtedness of
Borrower, and senior to all subordinated
indebtedness of Borrower.
Optional Prepayments and
Commitment Reductions:
The Credit Facility will be prepayable at
par at any time at Borrower's option, in
whole or in part, plus accrued and unpaid
interest. Breakage costs, if any, will be
paid by Borrower. Borrower shall have the
right to terminate, in whole or in part (in
minimum amounts to be agreed upon), the
undrawn commitments at any time and from
time to time upon written notice.
Conditions to Effectiveness and
to Initial Loans: The effectiveness of the Credit Agreement
and the making of the loans thereunder
shall be subject to the conditions
precedent specified in the Commitment
Letter and the following additional
conditions: execution and delivery by
Borrower of the Credit Documents acceptable
in form and substance to the Lenders;
delivery of satisfactory borrowing
certificates and other customary closing
certificates; absence of default or event
of default under any of the Credit
Documents; accuracy of all representations
and warranties; absence of defaults,
prepayment events or creation of liens
under debt instruments or other agreements
as a result of the transactions
contemplated hereby; absence of material
litigation; evidence of authority;
compliance with applicable laws and
regulations (including but not limited to
ERISA, margin regulations, bank regulatory
limitations and environmental laws); and
delivery of satisfactory legal opinions.
In addition, the making of the initial
loans under the Credit Facility will be
subject to the following conditions:
(A) Parent's long-term, senior unsecured,
non-credit-enhanced indebtedness shall
be rated no lower than Baa1 by Moody's
or BBB+ by S&P.
(B) The Lead Arranger shall be reasonably
satisfied with the corporate structure
and pro forma capitalization of Parent,
Borrower and their respective
subsidiaries on a pro forma basis after
giving effect to the Transactions.
(C) The Transactions and the financing
therefor shall be in compliance with all
material laws and regulations, or the
Lead Arranger shall have determined such
to be inapplicable to the Transactions.
(D) Simultaneously with the making of the
initial loans under the Credit Facility,
the Acquisition shall have been
consummated in all material respects in
accordance with the terms of the
Acquisition Agreement.
(E) No law or regulation shall be applicable
in the reasonable judgment of the Lead
Arranger that restrains, prevents or
imposes material adverse conditions upon
any material component of the
Transactions.
(F) There shall not have occurred or become
known any material adverse change or any
condition or event that could reasonably
be expected to result in a material
adverse change in the business, results
of operations or financial condition
(each, a "Material Adverse Change") of
Parent and its subsidiaries taken as a
whole (after giving effect to the
Transactions) since September 30, 1999.
(G) All requisite governmental authorities
and third parties shall have approved or
consented to the Transactions to the
extent required (without the imposition
of any materially burdensome condition
or qualification in the reasonable
judgment of the Lead Arranger) and all
such approvals shall be in full force
and effect, and there shall be no
governmental or judicial action, actual
or threatened, that has or could have a
reasonable likelihood of restraining,
preventing or imposing materially
burdensome conditions on any of the
Transactions.
(H) All accrued fees and expenses (including
the reasonable fees and expenses of
counsel to the Lead Arranger) of the
Lenders and the Lead Arranger in
connection with the Credit Documents
shall have been paid.
(I) The Lenders shall have received such
other legal opinions, corporate
documents and other instruments and/or
certificates as they may reasonably
request.
Conditions to All Extensions
of Credit: Each extension of credit under the Credit
Facility will be subject to customary
conditions, including the (i) absence of
any Default or Event of Default (to be
defined), and (ii) continued accuracy of
representations and warranties in all
material respects (which materiality
exception will not apply to representations
and warranties qualified by materiality
standards).
Representations and Warranties:
Usual and customary for transactions of
this type and similar to Existing Credit
Facility (as defined below), and such other
representations and warranties as may be
reasonably required by the Lead Arranger.
"Existing Credit Facility" shall mean the
364-day Credit Facility among a subsidiary
of Parent, First Chicago Capital Markets,
Inc. and the lenders party thereto dated
March 1999.
Affirmative, Negative and Financial
Covenants: Usual and customary for transactions of
this type and similar to Existing Credit
Facility and such other affirmative
covenants as may be reasonably required by
the Lead Arranger.
Events of Default: Usual and customary for transactions of
this type and similar to Existing Credit
Facility, and such others as may be
reasonably required by the Lead Arranger.
Yield Protection and
Increased Costs: Usual and customary for transactions of
this type and similar to Existing Credit
Facility.
Required Lenders: Usual and customary for transactions of
this type and similar to Existing Credit
Facility.
Assignments and
Participations: Usual and customary for transactions of
this type and similar to Existing Credit
Facility.
Expenses and
Indemnification: Usual and customary for transactions of
this type.
Governing Law
and Forum: New York.
Waiver of Jury Trial: All parties to the Credit Documents waive
the right to trial by jury.
Special Counsel for
Lead Arranger: Cahill Gordon & Reindel (and such local
counsel as may be selected by the Lead
Arranger).
Interest Rates and
Fees: Loans shall bear interest at a rate per
annum equal to LIBOR plus the Applicable
Margin. The initial "Applicable Margin"
prior to the receipt of ratings will be
0.30% per annum.
A facility fee (the "Facility Fee") accrues
on each Lender's commitment in effect from
time to time (whether or not utilized),
commencing on the date of the execution and
delivery of the Credit Documents. The
initial Facility Fee prior to the receipt
of ratings will be 0.08% per annum.
A utilization fee (the "Utilization Fee")
accrues on the daily average outstanding
loans of each Lender so long as the
aggregate average outstanding loans are
greater than 33.3% of the committed amount
of the Credit Facility. The initial
Utilization Fee prior to the receipt of
ratings will be 0.10% per annum.
The Applicable Margin, the Facility Fee and
the Utilization Fee (collectively, the
"Margins") shall be subject to adjustment
based on the grid below in the event
Parent's long-term, senior unsecured, non-
credit-enhanced indebtedness is rated lower
than A3 by Moody's and A- by S&P.
Borrower may select interest periods of
one, two, three or six months for LIBOR
borrowings. Interest will be payable in
arrears at the end of each interest period,
and in the case of interest periods longer
than three months, no less frequently than
every three months. All Facility Fees and
Utilization Fees will be payable in arrears
at the end of each quarter and upon any
termination of any commitment, in each case
for the actual number of days elapsed over
a 360-day year.
Applicable Facility Utilization
Teir Rating Margin Fee Fee
---- -------- -------- -------- --------
I > or = A / A2 0.270% 0.080% 0.100%
II A- / A3 0.300% 0.100% 0.100%
III BBB+ / Baa1 0.450% 0.125% 0.125%
IV BBB / Baa2 0.600% 0.150% 0.125%
V BBB- / Baa3 0.700% 0.175% 0.250%
VI <BBB- / Baa3 0.800% 0.200% 0.250%
In the case of a split rating, the higher
rating will apply; provided that if any rating
falls in a Tier that is two or more Tiers below
the other rating, the applicable Tier shall be
the one immediately below the Tier with the
highest rating.