Exhibit 10.1
EXECUTION COPY
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AMENDED AND RESTATED THREE-YEAR REVOLVING CREDIT AGREEMENT
DATED AS OF SEPTEMBER 21, 2004
among
AMEREN CORPORATION,
THE LENDERS FROM TIME TO TIME PARTIES HERETO
and
JPMORGAN CHASE BANK,
as Administrative Agent
and
BANK ONE, NA,
as Syndication Agent
THE BANK OF NEW YORK,
THE BANK OF TOKYO-MITSUBISHI, LTD. and
BNP PARIBAS,
as Co-Documentation Agents
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J. P. MORGAN SECURITIES INC.
and
BANC ONE CAPITAL MARKETS, INC.,
AS CO-LEAD ARRANGERS AND JOINT BOOK RUNNERS
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[6700-547]
TABLE OF CONTENTS
ARTICLE I DEFINITIONS..........................................................................1
1.1. Certain Defined Terms...................................................................1
1.2. Plural Forms...........................................................................16
ARTICLE II THE CREDITS.........................................................................16
2.1. Commitment.............................................................................16
2.2. Required Payments; Termination.........................................................17
2.3. Loans..................................................................................17
2.4. Competitive Bid Procedure..............................................................17
2.5. Swingline Loans........................................................................19
2.6. Types of Advances......................................................................20
2.7. Facility Fee; Utilization Fee; Reductions in Aggregate Commitment......................20
2.8. Minimum Amount of Each Advance.........................................................21
2.9. Optional Principal Payments............................................................21
2.10. Method of Selecting Types and Interest Periods for New Revolving
Advances...............................................................................21
2.11. Conversion and Continuation of Outstanding Revolving Advances; No
Conversion or Continuation of Revolving Eurodollar Advances After
Default................................................................................22
2.12. Changes in Interest Rate, etc..........................................................23
2.13. Rates Applicable After Default.........................................................23
2.14. Method of Payment......................................................................23
2.15. Noteless Agreement; Evidence of Indebtedness...........................................24
2.16. Telephonic Notices.....................................................................24
2.17. Interest Payment Dates; Interest and Fee Basis.........................................25
2.18. Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions; Availability of Loans......................................................25
2.19. Lending Installations..................................................................25
2.20. Non-Receipt of Funds by the Agent......................................................26
2.21. Replacement of Lender..................................................................26
2.22. Extension of Facility Termination Date.................................................26
ARTICLE III YIELD PROTECTION; TAXES.............................................................27
3.1. Yield Protection.......................................................................27
3.2. Changes in Capital Adequacy Regulations................................................28
3.3. Availability of Types of Advances......................................................28
3.4. Funding Indemnification................................................................29
3.5. Taxes..................................................................................29
3.6. Lender Statements; Survival of Indemnity...............................................31
3.7. Alternative Lending Installation.......................................................31
ARTICLE IV CONDITIONS PRECEDENT................................................................31
4.1. Restatement Effective Date.............................................................31
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4.2. Each Credit Extension...................................................................32
ARTICLE V REPRESENTATIONS AND WARRANTIES......................................................32
5.1. Existence and Standing..................................................................33
5.2. Authorization and Validity..............................................................33
5.3. No Conflict; Government Consent.........................................................33
5.4. Financial Statements....................................................................33
5.5. Material Adverse Change.................................................................34
5.6. Taxes...................................................................................34
5.7. Litigation and Contingent Obligations...................................................34
5.8. Subsidiaries............................................................................34
5.9. ERISA...................................................................................35
5.10. Accuracy of Information.................................................................35
5.11. Regulation U............................................................................35
5.12. Material Agreements.....................................................................35
5.13. Compliance With Laws....................................................................35
5.14. Ownership of Properties.................................................................35
5.15. Plan Assets; Prohibited Transactions....................................................36
5.16. Environmental Matters...................................................................36
5.17. Investment Company Act..................................................................36
5.18. Public Utility Holding Company Act; Securities and Exchange
Commission Authorization................................................................36
5.19. Insurance...............................................................................36
5.20. No Default or Unmatured Default.........................................................37
ARTICLE VI COVENANTS...........................................................................37
6.1. Financial Reporting.....................................................................37
6.2. Use of Proceeds.........................................................................38
6.3. Notice of Default.......................................................................38
6.4. Conduct of Business.....................................................................38
6.5. Taxes...................................................................................39
6.6. Insurance...............................................................................39
6.7. Compliance with Laws; Securities and Exchange Commission
Authorization...........................................................................39
6.8. Maintenance of Properties...............................................................39
6.9. Inspection; Keeping of Books and Records................................................39
6.10. Merger..................................................................................40
6.11. Sale of Assets..........................................................................40
6.12. Indebtedness of Project Finance Subsidiaries, Investments in Project
Finance Subsidiaries; Acquisitions......................................................40
6.13. Liens...................................................................................41
6.14. Affiliates..............................................................................43
6.15. Financial Contracts.....................................................................43
6.16. Subsidiary Covenants....................................................................43
6.17. Leverage Ratio..........................................................................44
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ARTICLE VII DEFAULTS............................................................................44
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES......................................46
8.1. Acceleration............................................................................46
8.2. Amendments..............................................................................46
8.3. Preservation of Rights..................................................................47
ARTICLE IX GENERAL PROVISIONS..................................................................48
9.1. Survival of Representations.............................................................48
9.2. Governmental Regulation.................................................................48
9.3. Headings................................................................................48
9.4. Entire Agreement........................................................................48
9.5. Several Obligations; Benefits of this Agreement.........................................48
9.6. Expenses; Indemnification...............................................................48
9.7. Numbers of Documents....................................................................49
9.8. Accounting..............................................................................49
9.9. Severability of Provisions..............................................................50
9.10. Nonliability of Lenders.................................................................50
9.11. Confidentiality.........................................................................50
9.12. Lenders Not Utilizing Plan Assets.......................................................51
9.13. Nonreliance.............................................................................51
9.14. Disclosure..............................................................................51
9.15. USA Patriot Act.........................................................................51
ARTICLE X THE AGENT...........................................................................51
10.1. Appointment; Nature of Relationship.....................................................51
10.2. Powers..................................................................................51
10.3. General Immunity........................................................................52
10.4. No Responsibility for Loans, Recitals, etc..............................................52
10.5. Action on Instructions of Lenders.......................................................52
10.6. Employment of Agents and Counsel........................................................52
10.7. Reliance on Documents; Counsel..........................................................53
10.8. Agent's Reimbursement and Indemnification...............................................53
10.9. Notice of Default.......................................................................53
10.10. Rights as a Lender......................................................................53
10.11. Lender Credit Decision..................................................................54
10.12. Successor Agent.........................................................................54
10.13. Agent and Arranger Fees.................................................................55
10.14. Delegation to Affiliates................................................................55
10.15. Syndication Agent and Documentation Agents..............................................55
ARTICLE XI SETOFF; RATABLE PAYMENTS............................................................55
11.1. Setoff..................................................................................55
11.2. Ratable Payments........................................................................55
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ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS...................................56
12.1. Successors and Assigns; Designated Lenders..............................................56
12.2. Participations..........................................................................58
12.3. Assignments.............................................................................58
12.4. Dissemination of Information............................................................60
12.5. Tax Certifications......................................................................60
ARTICLE XIII NOTICES.............................................................................60
13.1. Notices.................................................................................60
13.2. Change of Address.......................................................................61
ARTICLE XIV COUNTERPARTS........................................................................61
ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF
JURY TRIAL..........................................................................62
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SCHEDULES
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Commitment Schedule
Pricing Schedule
Schedule 1 - Subsidiaries
Schedule 2 - Liens
Schedule 3 - Restrictive Agreements
EXHIBITS
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Exhibit A - Form of Borrower's Counsel's Opinions
Exhibit B - Form of Compliance Certificate
Exhibit C - Form of Assignment and Assumption Agreement
Exhibit D - Form of Loan/Credit Related Money Transfer Instruction
Exhibit E - Form of Promissory Note (if requested)
Exhibit F - Form of Designation Agreement
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AMENDED AND RESTATED THREE-YEAR REVOLVING CREDIT AGREEMENT
This Amended and Restated Three-Year Revolving Credit Agreement dated as of
September 21, 2004, is entered into by and among Ameren Corporation, a Missouri
corporation (the "Borrower"), the lenders party thereto (the "Lenders") and
JPMorgan Chase Bank, as Administrative Agent for the Lenders, and amends and
restates the Three-Year Credit Agreement dated as of July 17, 2003 (as
previously amended, supplemented or otherwise modified from time to time, the
"Pre-Restatement Credit Agreement"), among the Borrower, the Lenders and the
Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms. As used in this Agreement:
"Accounting Changes" is defined in Section 9.8 hereof.
"Acquisition" means any transaction, or any series of related transactions,
consummated on or after the Original Effective Date, by which the Borrower or
any of its Subsidiaries (i) acquires any going business or all or substantially
all of the assets of any firm, corporation or limited liability company, or
division thereof, whether through purchase of assets, merger or otherwise or
(ii) directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power for
the election of directors (other than securities having such power only by
reason of the happening of a contingency) or a majority (by percentage of voting
power) of the outstanding ownership interests of a partnership or limited
liability company of any Person.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Agent.
"Advance" means (a) Revolving Loans (i) made by some or all of the Lenders
on the same Borrowing Date or (ii) converted or continued by the Lenders on the
same date of conversion or continuation, consisting, in either case, of the
aggregate amount of the several Revolving Loans of the same Type and, in the
case of Eurodollar Loans, for the same Interest Period, (b) a Competitive Loan
or group of Competitive Loans of the same type made on the same date and as to
which a single Interest Period is in effect or (c) a Swingline Loan.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of 10% or more of any class of voting securities (or other ownership
interests) of the controlled Person or possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of voting securities, by contract
or otherwise.
"Agent" means JPMCB, not in its individual capacity as a Lender, but in its
capacity as contractual representative of the Lenders pursuant to Article X, and
any successor Agent appointed pursuant to Article X.
"Aggregate Commitment" means the aggregate of the Commitments of all the
Lenders, as reduced from time to time pursuant to the terms hereof. The initial
Aggregate Commitment is Two Hundred Thirty-Five Million and 00/100 Dollars
($235,000,000).
"Aggregate Outstanding Credit Exposure" means, at any time, the aggregate
of the Outstanding Credit Exposures of all the Lenders.
"Aggregate Revolving Credit Exposure" means, at any time, the aggregate of
the Revolving Credit Exposures of all the Lenders.
"Agreement" means this Amended and Restated Three-Year Revolving Credit
Agreement, as it may be amended, restated, supplemented or otherwise modified
and as in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect in the United States from time to time, applied in a
manner consistent with that used in preparing the financial statements of the
Borrower referred to in Section 5.4; provided, however, that except as provided
in Section 9.8, with respect to the calculation of financial ratio set forth in
Sections 6.17 (and the defined terms used in such Sections), "Agreement
Accounting Principles" means generally accepted accounting principles as in
effect in the United States as of the Original Effective Date, applied in a
manner consistent with that used in preparing the financial statements of the
Borrower referred to in Section 5.4 hereof.
"Alternate Base Rate" means, for any day, a fluctuating rate of interest
per annum equal to the higher of (i) the Prime Rate for such day and (ii) the
sum of (a) the Federal Funds Effective Rate for such day and (b) one-half of one
percent (0.5%) per annum.
"Applicable Fee Rate" means, with respect to the Facility Fee and the
Utilization Fee at any time, the percentage rate per annum which is applicable
at such time with respect to each such fee as set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arrangers" means J.P. Morgan Securities Inc. and Banc One Capital Markets,
Inc. and their respective successors, in their respective capacities as Co-Lead
Arrangers and Joint Book Runners.
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"Article" means an article of this Agreement unless another document is
specifically referenced.
"Assignment Agreement" is defined in Section 12.3.1.
"Authorized Officer" means any of the chief executive officer,
president, chief operating officer, chief financial officer, treasurer or vice
president of the Borrower, acting singly.
"Available Aggregate Commitment" means, at any time, the Aggregate
Commitment then in effect minus the Aggregate Outstanding Credit Exposure at
such time.
"Bank One" means Bank One, NA, a national banking association having its
principal office in Chicago, Illinois, in its individual capacity, and its
successors.
"Borrower" means Ameren Corporation, a Missouri corporation, and its
permitted successors and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.10.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in New York, New York for the conduct of
substantially all of their commercial lending activities, interbank wire
transfers can be made on the Fedwire system and dealings in Dollars are carried
on in the London interbank market and (ii) for all other purposes, a day (other
than a Saturday or Sunday) on which banks generally are open in New York, New
York for the conduct of substantially all of their commercial lending activities
and interbank wire transfers can be made on the Fedwire system.
"Capitalized Lease" of a Person means any lease of Property by such Person
as lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Change in Control" means (i) the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of twenty percent (20%) or more of the aggregate ordinary voting
power represented by the issued and outstanding capital stock of the Borrower;
(ii) the Borrower shall cease to own, directly or indirectly and free and clear
of all Liens or other encumbrances (except for such Liens or other encumbrances
permitted by Section 6.13), 100% of the outstanding shares of the ordinary
voting power represented by the issued and outstanding common stock of each of
CIPS, Ameren Energy Generating Company, AmerenEnergy Resources Generating
Company, Union Electric and CILCO, and, from and after the date of the IP
Acquisition, IP, in each case on a fully diluted basis; or (iii) occupation of a
3
majority of the seats (other than vacant seats) on the board of directors of the
Borrower by Persons who were neither (i) nominated by the board of directors of
the Borrower or a committee or subcommittee thereof to which such power was
delegated nor (ii) appointed by directors so nominated; provided that any
individual who is so nominated in connection with a merger, consolidation,
acquisition or similar transaction shall be included in such majority unless
such individual was a member of the Borrower's board of directors prior thereto.
"CILCO" means Central Illinois Light Company d/b/a AmerenCILCO, an Illinois
corporation.
"CILCORP" means CILCORP Inc., an Illinois corporation, the parent company
of CILCO.
"CIPS" means Central Illinois Public Service Company d/b/a AmerenCIPS, an
Illinois corporation.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time, and any rule or regulation issued
thereunder.
"Commitment" means, for each Lender, the amount set forth on the Commitment
Schedule or in an Assignment Agreement executed pursuant to Section 12.3
opposite such Lender's name, as it may be modified as a result of any assignment
that has become effective pursuant to Section 12.3.2 or as otherwise modified
from time to time pursuant to the terms hereof.
"Commitment Schedule" means the Schedule identifying each Lender's
Commitment as of the Restatement Effective Date attached hereto and identified
as such.
"Commonly Controlled Entity" means any trade or business, whether or not
incorporated, which is under common control with the Borrower or any Subsidiary
within the meaning of Section 4001 of ERISA or that, together with the Borrower
or any Subsidiary, is treated as a single employer under Section 414(b) or (c)
of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of
the Code, is treated as a single employer under Section 414 of the Code.
"Competitive Bid" means an offer by a Lender to make a Competitive Loan in
accordance with Section 2.4.
"Competitive Bid Rate" means, with respect to any Competitive Bid, the
Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for Competitive
Bids in accordance with Section 2.4.
"Competitive Loan" means a Loan made pursuant to Section 2.4.
"Consolidated Indebtedness" of a Person means at any time the Indebtedness
of such Person and its Subsidiaries calculated on a consolidated basis as of
such time.
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"Consolidated Net Worth" of a Person means at any time the consolidated
stockholders' equity and preferred stock of such Person and its Subsidiaries
calculated on a consolidated basis in accordance with Agreement Accounting
Principles.
"Consolidated Tangible Assets" means the total amount of all assets of the
Borrower and its consolidated Subsidiaries determined in accordance with
Agreement Accounting Principles, minus, to the extent included in the total
amount of the Borrower's and its consolidated Subsidiaries' total assets, the
net book value of all (i) goodwill, including, without limitation, the excess
cost over book value of any asset, (ii) organization or experimental expenses,
(iii) unamortized debt discount and expense, (iv) patents, trademarks,
tradenames and copyrights, (v) treasury stock, (vi) franchises, licenses and
permits, and (vii) other assets which are deemed intangible assets under
Agreement Accounting Principles.
"Consolidated Total Capitalization" means at any time the sum of
Consolidated Indebtedness and Consolidated Net Worth, each calculated at such
time.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or the obligations of any such Person as general
partner of a partnership with respect to the liabilities of the partnership.
"Conversion/Continuation Notice" is defined in Section 2.11.
"Credit Extension" means the making of an Advance hereunder. "Credit
Extension Date" means the Borrowing Date for an Advance.
"Default" means an event described in Article VII.
"Designated Lender" means, with respect to each Designating Lender, each
Eligible Designee designated by such Designating Lender pursuant to Section
12.1.2.
"Designating Lender" means, with respect to each Designated Lender, the
Lender that designated such Designated Lender pursuant to Section 12.1.2.
"Designation Agreement" is defined in Section 12.1.2.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in the Exchange Act Documents.
"Documentation Agents" means The Bank of New York, The Bank of
Tokyo-Mitsubishi, Ltd. and BNP Paribas.
"Dollar" and "$" means the lawful currency of the United States of America.
5
"Eligible Designee" means a special purpose corporation, partnership,
trust, limited partnership or limited liability company that is administered by
the respective Designating Lender or an Affiliate of such Designating Lender and
(i) is organized under the laws of the United States of America or any state
thereof, (ii) is engaged primarily in making, purchasing or otherwise investing
in commercial loans in the ordinary course of its business and (iii) issues (or
the parent of which issues) commercial paper rated at least A-1 or the
equivalent thereof by S&P or P-1 or the equivalent thereof by Moody's.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to (i) the
protection of the environment, (ii) the effect of the environment on human
health, (iii) emissions, discharges or releases of pollutants, contaminants,
hazardous substances or wastes into surface water, ground water or land, or (iv)
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Event" means (a) any Reportable Event; (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA) whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any Commonly Controlled Entity of
any liability under Title IV of ERISA with respect to the termination of any
Plan; (e) the receipt by the Borrower or any Commonly Controlled Entity from the
PBGC or a plan administrator of any notice relating to an intention to terminate
any Plan or to appoint a trustee to administer any Plan; (f) the incurrence by
the Borrower or any Commonly Controlled Entity of any liability with respect to
the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g)
the receipt by the Borrower or any Commonly Controlled Entity of any notice, or
the receipt by any Multiemployer Plan from the Borrower or any Commonly
Controlled Entity of any notice, concerning the imposition of "withdrawal
liability" (as defined in Part I of Subtitle E of Title IV of ERISA) or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar Advance" means an Advance which, except as otherwise provided
in Section 2.13, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the applicable British Bankers' Association LIBOR rate
for deposits in Dollars as reported by any generally recognized financial
information service as of 11:00 a.m. (London time) two (2) Business Days prior
to the first day of such Interest Period, and having a maturity equal to such
Interest Period, provided that, if no such British Bankers' Association LIBOR
rate is available to the Agent, the applicable Eurodollar Base Rate for the
relevant Interest Period shall instead be the rate determined by the Agent to be
the rate at which JPMCB or one of its affiliate banks offers to place deposits
in Dollars with first-class banks in the London interbank
6
market at approximately 11:00 a.m. (London time) two (2) Business Days prior to
the first day of such Interest Period, in the approximate amount of JPMCB's
relevant Eurodollar Loan and having a maturity equal to such Interest Period.
"Eurodollar Loan" means a Loan which, except as otherwise provided in
Section 2.13, bears interest at the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(ii) (A) in the case of a Eurodollar Advance consisting of Revolving Loans, the
then Applicable Margin, changing as and when the Applicable Margin changes and
(B) in the case of a Eurodollar Advance consisting of a Competitive Loan or
Loans, the Margin applicable to such Loan or Loans.
"Eurodollar Rate Advance" means an Advance consisting of Competitive Loans
bearing interest at the Eurodollar Rate.
"Exchange Act Documents" means (a) the Annual Report of each of the
Borrower, CIPS, Union Electric, Ameren Energy Generating Company, IP (subject to
the IP Acquisition), CILCORP and CILCO to the Securities and Exchange Commission
on Form 10-K for the fiscal year ended December 31, 2003, (b) the Quarterly
Reports of each of the Borrower, CIPS, Union Electric, Ameren Energy Generating
Company, IP (subject to the IP Acquisition), CILCORP and CILCO to the Securities
and Exchange Commission on Form 10-Q for the fiscal quarters ended March 31,
2004 and June 30, 2004, and (c) all Current Reports of each of the Borrower,
CIPS, Union Electric, Ameren Energy Generating Company, IP (subject to the IP
Acquisition), CILCORP and CILCO to the Securities and Exchange Commission on
Form 8-K from January 1, 2004 to the Restatement Effective Date.
"Excluded Taxes" means, in the case of each Lender or applicable Lending
Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or any political
combination or subdivision or taxing authority thereof or (ii) the jurisdiction
in which the Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another document
is specifically referenced.
"Existing CILCO Indenture" means the Indenture of Mortgage and Deed of
Trust dated as of April 1, 1933, as heretofore or from time to time hereafter
supplemented and amended, between CILCO and Deutsche Bank Trust Company Americas
f/k/a Bankers Trust Company, as Trustee.
"Existing Credit Agreements" means (a) the Five-Year Revolving Credit
Agreement dated as of July 14, 2004, by and among the Borrower, the lenders
party thereto and JPMCB, as administrative agent, as the same may be amended,
restated, supplemented or otherwise modified and as in effect from time to time
and (b) the Three-Year Revolving Credit Agreement
7
dated as of July 14, 2004, by and among the Borrower, the lenders party thereto
and JPMCB, as administrative agent, as the same may be amended, restated,
supplemented or otherwise modified and as in effect from time to time.
"Existing Indentures" means (i) the Indenture of Mortgage and Deed of Trust
dated as of June 15, 1937, as heretofore or from time to time hereafter
supplemented and amended, between Union Electric and The Bank of New York, as
Trustee, and (ii) the Indenture of Mortgage or Deed of Trust dated as of October
1, 1941, as heretofore or from time to time hereafter supplemented and amended,
between CIPS and U.S. Bank Trust National Association and Patrick J. Crowley, as
Trustees.
"Existing IP Indenture" means the General Mortgage Indenture and Deed of
Trust dated as of November 1, 1992, as heretofore or from time to time
supplemented and amended between IP and BNY Midwest Trust Company as successor
to Harris Trust and Savings Bank, as Trustee.
"Extension Request" is defined in Section 2.22
"Facility Fee" is defined in Section 2.7.1.
"Facility Termination Date" means the earlier of (a) July 17, 2006 (or any
later date as may be specified as the Facility Termination Date in accordance
with Section 2.22) and (b) the date of termination in whole of the Aggregate
Commitment pursuant to Section 2.7 hereof or the Commitments pursuant to Section
8.1 hereof.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal Funds
transactions with members of the Federal Reserve System arranged by Federal
Funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately 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 at approximately 11:00 a.m. (New
York time) on such day on such transactions received by the Agent from three
Federal Funds brokers of recognized standing selected by the Agent in its sole
discretion.
"First Mortgage Bonds" means bonds or other indebtedness issued by Union
Electric, CIPS or CILCO, as applicable, pursuant to the Existing Indentures or
the Existing CILCO Indenture and, from and after the IP Acquisition, bonds or
other indebtedness issued by IP pursuant to the Existing IP Indenture.
"Fixed Rate" means, with respect to any Competitive Loan (other than a
Eurodollar Loan), the fixed rate of interest per annum specified by the Lender
making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Advance" means an Advance consisting of Competitive Loans
bearing interest at a Fixed Rate.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed
Rate.
8
"Floating Rate" means, for any day, a rate per annum equal to the sum of
(i) the Alternate Base Rate for such day, changing when and as the Alternate
Base Rate changes plus (ii) the then Applicable Margin, changing as and when the
Applicable Margin changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.13, bears interest at the Floating Rate.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Indebtedness" of a Person means, at any time, without duplication, such
Person's (i) obligations for borrowed money, (ii) obligations representing the
deferred purchase price of Property or services (other than current accounts
payable arising in the ordinary course of such Person's business payable on
terms customary in the trade), (iii) obligations, whether or not assumed,
secured by Liens or payable out of the proceeds or production from Property now
or hereafter owned or acquired by such Person, (iv) obligations which are
evidenced by notes, bonds, debentures, acceptances, or other instruments, (v)
obligations to purchase securities or other Property arising out of or in
connection with the sale of the same or substantially similar securities or
Property, (vi) Capitalized Lease Obligations (except for Capitalized Lease
Obligations entered into by Union Electric in connection with the Peno Creek
Project), (vii) Contingent Obligations of such Person, (viii) reimbursement
obligations under Letters of Credit, bankers acceptances, surety bonds and
similar instruments issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable,
(ix) Off-Balance Sheet Liabilities, (x) obligations under Sale and Leaseback
Transactions, (xi) Net Mark-to-Market Exposure under Rate Management
Transactions and (xii) any other obligation for borrowed money which in
accordance with Agreement Accounting Principles would be shown as a liability on
the consolidated balance sheet of such Person.
"Interest Period" means (a) with respect to a Eurodollar Advance, a period
of one, two, three or six months, commencing on the date of such Advance and
ending on but excluding the day which corresponds numerically to such date one,
two, three or six months thereafter and (b) with respect to any Fixed Rate
Advance, the period (which shall not be less than 7 days or more than 360 days)
commencing on the date of such Advance and ending on the date specified in the
applicable Competitive Bid Request; provided, however, that (i) in the case of
Eurodollar Advances, if there is no such numerically corresponding day in such
next, second, third or sixth succeeding month, such Interest Period shall end on
the last Business Day of such next, second, third or sixth succeeding month and
(ii) if an Interest Period would otherwise end on a day which is not a Business
Day, such Interest Period shall end on the next succeeding Business Day,
provided, however, that if said next succeeding Business Day falls in a new
calendar month, such Interest Period shall end on the immediately preceding
Business Day. For purposes hereof, the date of an Advance initially shall be the
date on which such Advance is made and, in the case of an Advance comprising
Revolving Loans, thereafter shall be the effective date of the most recent
conversion or continuation of such Loans.
"Investment" of a Person means any loan, advance (other than commission,
travel and similar advances to officers and employees made in the ordinary
course of business), extension
9
of credit (other than accounts receivable arising in the ordinary course of
business on terms customary in the trade) or contribution of capital by such
Person; stocks, bonds, mutual funds, partnership interests, notes, debentures or
other securities owned by such Person; any deposit accounts and certificate of
deposit owned by such Person; and structured notes, derivative financial
instruments and other similar instruments or contracts owned by such Person.
"IP" means Illinois Power Company, an Illinois corporation.
"IP Acquisition" means the acquisition by the Borrower of all of the common
stock of IP, 662,924 shares of preferred stock, $50 par value per share, of IP,
and 12,400 shares of common stock, $100 par value per share, of Electric Energy,
Inc., on the terms and conditions set forth in that certain Stock Purchase
Agreement dated as of February 2, 2004, as amended, by and among the Borrower,
as purchaser, Illinova Corporation, as seller, Illinova Generating Company, and
Dynegy Inc.
"JPMCB" means JPMorgan Chase Bank.
"Lenders" means the lending institutions listed on the signature pages of
this Agreement and their respective successors and assigns. Unless the context
requires otherwise, the term "Lenders" includes the Swingline Lender.
"Lending Installation" means, with respect to a Lender or the Agent, the
office, branch, subsidiary or affiliate of such Lender or the Agent listed on
the signature pages hereof or on the administrative information sheets provided
to the Agent in connection herewith or on a Schedule or otherwise selected by
such Lender or the Agent pursuant to Section 2.19.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement, and, in the case of stock, stockholders agreements, voting trust
agreements and all similar arrangements).
"Loans" means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
"Loan Documents" means this Agreement and all other documents, instruments,
notes (including any Notes issued pursuant to Section 2.15 (if requested)) and
agreements executed in connection herewith or therewith or contemplated hereby
or thereby, as the same may be amended, restated or otherwise modified and in
effect from time to time.
"Margin" means, with respect to any Competitive Loan bearing interest at a
rate based on the Eurodollar Base Rate, the marginal rate of interest, if any,
to be added to or subtracted from
10
the Eurodollar Base Rate to determine the rate of interest applicable to such
Loan, as specified by the Lender making such Loan in its related Competitive
Bid.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), operations or results of
operations or prospects of the Borrower, or the Borrower and its Subsidiaries
taken as a whole, (ii) the ability of the Borrower to perform its obligations
under the Loan Documents, or (iii) the validity or enforceability of any of the
Loan Documents or the rights or remedies of the Agent or the Lenders thereunder.
"Material Indebtedness" means (i) any Indebtedness outstanding under the
Existing Credit Agreements and (ii) any other Indebtedness in an outstanding
principal amount of $50,000,000 or more in the aggregate (or the equivalent
thereof in any currency other than Dollars).
"Material Indebtedness Agreement" means any agreement under which any
Material Indebtedness was created or is governed or which provides for the
incurrence of Indebtedness in an amount which would constitute Material
Indebtedness (whether or not an amount of Indebtedness constituting Material
Indebtedness is outstanding thereunder).
"Money Pool Agreements" means, collectively, (i) that certain Ameren
Corporation System Utility Money Pool Agreement, dated as of March 25, 1999, by
and among the Borrower, Ameren Services Company, Union Electric, CIPS, CILCO,
and AmerenEnergy Resources Generating Company, as amended from time to time
(including, without limitation, the addition of any of their Affiliates as
parties thereto), and (ii) that certain Ameren Corporation System Non-Regulated
Subsidiary Money Pool Agreement, dated as of February 27, 2003, by and among the
Borrower, Ameren Services Company and Subsidiaries of the Borrower excluding
Union Electric, CIPS and CILCO, as amended from time to time (including, without
limitation, the addition of any of their Affiliates, other than Union Electric,
CIPS and CILCO, and, from and after the date of the IP Acquisition, IP, as
parties thereto).
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA.
"Net Mark-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Management Transactions. "Unrealized
losses" means the fair market value of the cost to such Person of replacing such
Rate Management Transaction as of the date of determination (assuming the Rate
Management Transaction were to be terminated as of that date), and "unrealized
profits" means the fair market value of the gain to such Person of replacing
such Rate Management Transaction as of the date of determination (assuming such
Rate Management Transaction were to be terminated as of that date).
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" is defined in Section 2.15.
11
"Obligations" means all Loans, advances, debts, liabilities, obligations,
covenants and duties owing by the Borrower to the Agent, any Lender, the
Arrangers, any affiliate of the Agent, any Lender or the Arrangers, or any
indemnitee under the provisions of Section 9.6 or any other provisions of the
Loan Documents, in each case of any kind or nature, present or future, arising
under this Agreement or any other Loan Document, whether or not evidenced by any
note, guaranty or other instrument, whether or not for the payment of money,
whether arising by reason of an extension of credit, loan, foreign exchange
risk, guaranty, indemnification, or in any other manner, whether direct or
indirect (including those acquired by assignment), absolute or contingent, due
or to become due, now existing or hereafter arising and however acquired. The
term includes, without limitation, all interest, charges, expenses, fees,
attorneys' fees and disbursements, paralegals' fees (in each case whether or not
allowed), and any other sum chargeable to the Borrower or any of its
Subsidiaries under this Agreement or any other Loan Document.
"Off-Balance Sheet Liability" of a Person means the principal component of
(i) any repurchase obligation or liability of such Person with respect to
accounts or notes receivable sold by such Person, (ii) any liability under any
Sale and Leaseback Transaction which is not a Capitalized Lease, (iii) any
liability under any so-called "synthetic lease" or "tax ownership operating
lease" transaction entered into by such Person, or (iv) any obligation arising
with respect to any other transaction which is the functional equivalent of or
takes the place of borrowing but which does not constitute a liability on the
consolidated balance sheets of such Person, but excluding from this clause (iv)
Operating Leases.
"Operating Lease" of a Person means any lease of Property (other than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
"Original Effective Date" means July 17, 2003.
"Other Taxes" is defined in Section 3.5(ii).
"Outstanding Credit Exposure" means, as to any Lender at any time, the
aggregate principal amount of its (i) Revolving Loans, (ii) Swingline Exposure
and (iii) Competitive Loans outstanding at such time.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each March, June, September and
December and the Facility Termination Date.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Peno Creek Project" means the Chapter 100 financing transaction and
agreements related thereto entered into between Union Electric and the City of
Bowling Green, Missouri (the "City") pursuant to which (i) Union Electric
conveys to and leases from the City certain land and improvements including four
combustion turbine generating units, and (ii) the City shall issue
12
indebtedness (which shall be purchased by Union Electric) to finance the
acquisition of such Property.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means at a particular time, any employee benefit plan (other than a
Multiemployer Plan) which is covered by ERISA or Section 412 of the Code and in
respect of which the Borrower or a Commonly Controlled Entity is (or, if such
plan were terminated at such time, would under Section 4069 of ERISA be deemed
to be) an "employer" as defined in Section 3(5) of ERISA.
"Pre-Restatement Credit Agreement" has the meaning assigned to such term in
the preamble hereto.
"Pricing Schedule" means the Schedule identifying the Applicable Margin and
Applicable Fee Rate attached hereto and identified as such.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by JPMCB (which is not necessarily the lowest rate
charged to any customer), changing when and as said prime rate changes.
"Project Finance Subsidiary" means any Subsidiary created for the purpose
of obtaining non-recourse financing for any operating asset that is the sole and
direct obligor of Indebtedness incurred in connection with such financing. A
Subsidiary shall be deemed to be a Project Finance Subsidiary only from and
after the date on which such Subsidiary is expressly designated as a Project
Finance Subsidiary to the Agent by written notice executed by an Authorized
Officer.
"Property" of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person.
"Pro Rata Share" means, with respect to a Lender, a portion equal to a
fraction the numerator of which is such Lender's Commitment at such time (in
each case, as adjusted from time to time in accordance with the provisions of
this Agreement) and the denominator of which is the Aggregate Commitment at such
time, or, if the Aggregate Commitment has been terminated, a fraction the
numerator of which is such Lender's Outstanding Credit Exposure at such time and
the denominator of which is the Aggregate Outstanding Credit Exposure at such
time.
"Purchasers" is defined in Section 12.3.1.
"Rate Management Obligations" of a Person means any and all unsatisfied or
undischarged obligations of such Person, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions therefor),
under (i) any and all Rate Management
13
Transactions, and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Management Transactions.
"Rate Management Transaction" means any transaction whether linked to one
or more interest rates, foreign currencies, or equity prices, (including an
agreement with respect thereto) now existing or hereafter entered by the
Borrower or a Subsidiary (other than a Project Finance Subsidiary) which is a
rate swap, basis swap, forward rate transaction, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
forward transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including any
option with respect to any of these transactions) or any combination thereof.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks, non-banks and non-broker lenders for the purpose
of purchasing or carrying margin stocks applicable to member banks of the
Federal Reserve System.
"Regulation X" means Regulation X of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA or the regulations issued under Section 4043 of ERISA, other than those
events as to which the thirty day notice period is waived under Sections .21,
..22, .23, .26, .27 or .28 of PBGC Reg. ss. 4043.
"Required Lenders" means Lenders in the aggregate having greater than fifty
percent (50%) of the Aggregate Commitment; provided that for purposes of
declaring the Loans to be due and payable pursuant to Article VIII and for all
purposes after the Loans have become due and payable pursuant to Article VIII
and the Aggregate Commitment has been terminated, "Required Lenders" shall mean
Lenders in the aggregate holding greater than fifty percent (50%) of the
Aggregate Outstanding Credit Exposure.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on
"Eurocurrency liabilities" (as defined in Regulation D).
"Response Date" is defined in Section 2.22.
"Restatement Effective Date" means September 21, 2004.
14
"Revolving Advance" means an Advance comprised of Revolving Loans.
"Revolving Credit Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans and
such Lender's Swingline Exposure at such time.
"Revolving Eurodollar Advance" means a Revolving Advance comprising a Loan
or Loans that bear interest at the Eurodollar Rate.
"Revolving Floating Rate Advance" means a Revolving Advance comprising a
Loan or Loans that bear interest at a Floating Rate.
"Revolving Loan" means, with respect to a Lender, such Lender's loan made
pursuant to its commitment to lend set forth in Section 2.1 (and any conversion
or continuation thereof).
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. and any successor thereto.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless another
document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the Borrower
and its Subsidiaries, Property which represents more than 10% of the
consolidated assets of the Borrower and its Subsidiaries or property which is
responsible for more than 10% of the consolidated net sales or of the
consolidated net income of the Borrower and its Subsidiaries, in each case, as
would be shown in the consolidated financial statements of the Borrower and its
Subsidiaries as at the end of the four fiscal quarter period ending with the
fiscal quarter immediately prior to the fiscal quarter in which such
determination is made (or if financial statements have not been delivered
hereunder for that fiscal quarter which ends the four fiscal quarter period,
then the financial statements delivered hereunder for the quarter ending
immediately prior to that quarter).
15
"Swingline Exposure" means, at any time, the aggregate principal amount of
all Swingline Loans outstanding at such time. The Swingline Exposure of any
Lender at any time shall be its Pro Rata Share of the total Swingline Exposure
at such time; provided that if the Aggregate Commitment has been terminated such
Pro Rata Share shall be determined based on the Commitments most recently in
effect, but giving effect to any subsequent assignments.
"Swingline Lender" means JPMorgan Chase Bank, in its capacity as lender of
Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.5.
"Syndication Agent" means Bank One.
"Taxes" means any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings, and any and all liabilities with respect to
the foregoing, but excluding Excluded Taxes.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Fixed Rate
Advance, Floating Rate Advance or Eurodollar Advance.
"Union Electric" means Union Electric Company d/b/a AmerenUE, a Missouri
corporation.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"Utilization Fee" is defined in Section 2.7.2.
"USA Patriot Act" means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
1.2. Plural Forms. The foregoing definitions shall be equally applicable to
both the singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. Commitment. From and including the Restatement Effective Date and
prior to the Facility Termination Date, upon the satisfaction of the conditions
precedent set forth in Section 4.1 and 4.2, as applicable, each Lender severally
and not jointly agrees, on the terms and conditions set forth in this Agreement,
to make Revolving Loans to the Borrower from time to time in an amount not to
exceed in the aggregate at any one time outstanding of its Pro Rata Share of the
Available Aggregate Commitment; provided that at no time shall the Aggregate
Outstanding Credit Exposure hereunder exceed the Aggregate Commitment. Subject
to the terms of this Agreement, the Borrower may borrow, repay and reborrow
Revolving Loans at any
16
time prior to the Facility Termination Date. The commitment of each Lender to
lend hereunder shall automatically expire on the Facility Termination Date.
2.2. Required Payments; Termination. The Borrower hereby unconditionally
promises to pay (i) to the Agent for the account of each Lender the then unpaid
principal amount of each Revolving Loan on the Facility Termination Date, (ii)
to the Agent for the account of each Lender the then unpaid principal amount of
each Competitive Loan on the last day of the Interest Period applicable to such
Loan, which shall not be later than the Facility Termination Date and (iii) to
the Swingline Lender the then unpaid principal amount of each Swingline Loan on
the earlier of the Facility Termination Date and the fifth Business Day after
such Swingline Loan is made; provided that on each date that a Revolving Loan or
Competitive Loan is made, the Borrower shall repay all Swingline Loans then
outstanding. Notwithstanding the termination of the Commitments under this
Agreement on the Facility Termination Date, until all of the Obligations (other
than contingent indemnity obligations) shall have been fully paid and satisfied
and all financing arrangements among the Borrower and the Lenders hereunder and
under the other Loan Documents shall have been terminated, all of the rights and
remedies under this Agreement and the other Loan Documents shall survive.
2.3. Loans. Each Advance hereunder shall consist of (a) Revolving Loans
made by the Lenders ratably in accordance with their Pro Rata Shares of the
Aggregate Commitment, (b) Competitive Loans or (c) Swingline Loans.
2.4. Competitive Bid Procedure. (a) Subject to the terms and conditions set
forth herein, from time to time during the period commencing on the Restatement
Effective Date and ending on the date immediately prior to the Facility
Termination Date the Borrower may request Competitive Bids and may (but shall
not have any obligation to) accept Competitive Bids and borrow Competitive
Loans; provided that the Aggregate Outstanding Credit Exposure at any time shall
not exceed the Aggregate Commitment.
To request Competitive Bids, the Borrower shall notify the Agent of such
request by telephone, in the case of a Eurodollar Advance, not later than 11:00
a.m., New York time, four Business Days before the date of the proposed Advance
and, in the case of a Fixed Rate Advance, not later than 10:00 a.m., New York
time, one Business Day before the date of the proposed Advance; provided that
the Borrower may submit up to (but not more than) two Competitive Bid Requests
on the same day, but a Competitive Bid Request shall not be made within five
Business Days after the date of any previous Competitive Bid Request, unless any
and all such previous Competitive Bid Requests shall have been withdrawn or all
Competitive Bids received in response thereto rejected. Each such telephonic
Competitive Bid Request shall be confirmed promptly by hand delivery or telecopy
to the Agent of a written Competitive Bid Request in a form approved by the
Agent and signed by the Borrower. Each such telephonic and written Competitive
Bid Request shall specify the following information:
(ii) the aggregate amount of the requested Advance;
(iii) the date of such Advance, which shall be a Business Day;
17
(iv) whether such Advance is to be a Eurodollar Rate Advance or a Fixed
Rate Advance; and
(v) the Interest Period to be applicable to such Advance, which shall be a
period contemplated by the definition of the term "Interest Period".
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Agent shall notify the Lenders of the details thereof by telecopy,
inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to the Borrower in response to a Competitive Bid Request.
Each Competitive Bid by a Lender must be in a form approved by the Agent and
must be received by the Agent by telecopy, in the case of a Eurodollar Rate
Advance, not later than 10:30 a.m., New York time, three Business Days before
the proposed date of such Advance, and in the case of a Fixed Rate Advance, not
later than 10:30 a.m., New York time, on the proposed date of such Advance.
Competitive Bids that do not conform substantially to the form approved by the
Agent may be rejected by the Agent, and the Agent shall notify the applicable
Lender as promptly as practicable. Each Competitive Bid shall specify (i) the
principal amount (which shall be a minimum of $5,000,000 and an integral
multiple of $1,000,000 and which may equal the entire principal amount of the
Advance requested by the Borrower) of the Competitive Loan or Loans that the
Lender is willing to make, (ii) the Competitive Bid Rate or Rates at which the
Lender is prepared to make such Loan or Loans (expressed as a percentage rate
per annum in the form of a decimal to no more than four decimal places) and
(iii) the Interest Period applicable to each such Loan and the last day thereof.
(c) The Agent shall promptly notify the Borrower by telecopy of the
Competitive Bid Rate and the principal amount specified in each Competitive Bid
and the identity of the Lender that shall have made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Borrower may
accept or reject any Competitive Bid. The Borrower shall notify the Agent by
telephone, confirmed by telecopy in a form approved by the Agent, whether and to
what extent it has decided to accept or reject each Competitive Bid, in the case
of a Eurodollar Rate Advance, not later than 10:30 a.m., New York time, three
Business Days before the date of the proposed Advance, and in the case of a
Fixed Rate Advance, not later than 10:30 a.m., New York time, on the proposed
date of the Advance; provided that (i) the failure of the Borrower to give such
notice shall be deemed to be a rejection of each Competitive Bid, (ii) the
Borrower shall not accept a Competitive Bid made at a particular Competitive Bid
Rate if the Borrower rejects a Competitive Bid made at a lower Competitive Bid
Rate, (iii) the aggregate amount of the Competitive Bids accepted by the
Borrower shall not exceed the aggregate amount of the requested Advance
specified in the related Competitive Bid Request, (iv) to the extent necessary
to comply with clause (iii) above, the Borrower may accept Competitive Bids at
the same Competitive Bid Rate in part, which acceptance, in the case of multiple
Competitive Bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each such Competitive Bid, and (v) except pursuant
to clause (iv) above, no Competitive Bid shall be accepted for a Competitive
Loan unless such Competitive Loan is in a minimum principal amount of $5,000,000
and an integral
18
multiple of $1,000,000; provided further that if a Competitive Loan must be in
an amount less than $5,000,000 because of the provisions of clause (iv) above,
such Competitive Loan may be for a minimum of $1,000,000 or any integral
multiple thereof, and in calculating the pro rata allocation of acceptances of
portions of multiple Competitive Bids at a particular Competitive Bid Rate
pursuant to clause (iv) the amounts shall be rounded to integral multiples of
$1,000,000 in a manner determined by the Borrower. A notice given by the
Borrower pursuant to this paragraph shall be irrevocable.
(e) The Agent shall promptly notify each bidding Lender by telecopy
whether or not its Competitive Bid has been accepted (and, if so, the amount and
Competitive Bid Rate so accepted), and each successful bidder will thereupon
become bound, subject to the terms and conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Agent shall elect to submit a Competitive Bid in its
capacity asa Lender, it shall submit such Competitive Bid directly to the
Borrower at least one quarter of an hour earlier than the time by which the
other Lenders are required to submit their Competitive Bids to the Agent
pursuant to paragraph (b) of this Section.
2.5. Swingline Loans. (a) Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from
time to time during the period commencing on the Restatement Effective Date and
ending on the date immediately prior to the Facility Termination Date, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of outstanding Swingline Loans exceeding
$20,000,000 or (ii) the Aggregate Outstanding Credit Exposure exceeding the
Aggregate Commitment; provided that the Swingline Lender shall not be required
to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Swingline Loans.
(b) Each Swingline Loan shall bear interest at (i) the rate per annum
applicable to Floating Rate Advances or (ii) any other rate per annum (computed
on the basis of the actual number of days elapsed over a year of 360 days) which
shall be quoted by the Swingline Lender on the date such Loan is made and
accepted by the Borrower as provided in this Section 2.5; provided, that
commencing on any date on which the Swingline Lender requires the Lenders to
acquire participations in a Swingline Loan pursuant to Section 2.5(d), such Loan
shall bear interest at the rate per annum applicable to Floating Rate Advances.
(c) To request a Swingline Loan, the Borrower shall notify the
Swingline Lender of such request by telephone (confirmed by telecopy), not later
than 12:00 noon, New York time, on the day of a proposed Swingline Loan. Each
such notice shall be irrevocable and shall specify the requested date (which
shall be a Business Day) and amount of the requested Swingline Loan and the
Interest Period to be applicable thereto. If so requested by the Borrower, the
Swingline Lender will quote an interest rate that, if accepted by the Borrower,
will be applicable to the requested Swingline Loan, and the Borrower will
promptly notify the Swingline Lender in the event it accepts such rate. The
Swingline Lender will promptly advise the Agent of any such notice received from
the Borrower. The Swingline Lender shall make each
19
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender by 3:00 p.m., New York
time, on the requested date of such Swingline Loan.
(d) The Swingline Lender may by written notice given to the Agent not
later than 10:00 a.m., New York time, on any Business Day require the Lenders to
acquire participations on such Business Day in all or a portion of the Swingline
Loans outstanding. Such notice shall specify the aggregate amount of Swingline
Loans in which Lenders will participate. Promptly upon receipt of such notice,
the Agent will give notice thereof to each Lender, specifying in such notice
such Lender's Pro Rata Share of such Swingline Loan or Loans. Each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Agent, for the account of the Swingline Lender, such Lender's Pro
Rata Share of such Swingline Loan or Loans. Each Lender acknowledges and agrees
that its obligation to acquire participations in Swingline Loans pursuant to
this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever. Each
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.10 with
respect to Loans made by such Lender (and Section 2.10 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Agent shall
promptly pay to the Swingline Lender the amounts so received by it from the
Lenders. The Agent shall notify the Borrower of any participation in any
Swingline Loan acquired pursuant to this paragraph, and thereafter payments in
respect of such Swingline Loan shall be made to the Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender from the Borrower
(or other party on behalf of the Borrower) in respect of a Swingline Loan after
receipt by the Swingline Lender of the proceeds of a sale of participation
therein shall be promptly remitted to the Agent; any such amounts received by
the Agent shall be promptly remitted by the Agent to the Lenders that shall have
made their payments pursuant to this paragraph and to the Swingline Lender, as
their interests may appear. The purchase of participation in a Swingline Loan
pursuant to this paragraph shall not relieve the Borrower of any default in the
payment thereof.
2.6. Types of Advances. Revolving Advances may be Floating Rate Advances or
Eurodollar Advances, or a combination thereof, selected by the Borrower in
accordance with Sections 2.10 and 2.11. Swingline Loans will be Floating Rate
Advances. Competitive Loans may be Eurodollar Rate Advances or Fixed Rate
Advances, or a combination thereof, selected by the Borrower in accordance with
Section 2.4.
2.7. Facility Fee; Utilization Fee; Reductions in Aggregate Commitment.
2.7.1 Facility Fee. The Borrower agrees to pay to the Agent for the
account of each Lender a facility fee (the "Facility Fee") at a per annum
rate equal to the Applicable Fee Rate on such Lender's Commitment (whether
used or unused) from and including the Original Effective Date to and
including the Facility Termination Date, payable quarterly in arrears on
each Payment Date hereafter and on the Facility Termination Date, provided
that, if any Lender continues to have Revolving Credit Exposure outstanding
hereunder after the termination of its Commitment (including, without
limitation, during any period
20
when Loans may be outstanding but new Loans may not be borrowed hereunder),
then the Facility Fee shall continue to accrue on the aggregate principal
amount of the Revolving Credit Exposure of such Lender until such Lender
ceases to have any Revolving Credit Exposure.
2.7.2 Utilization Fee. If on any date the Aggregate Outstanding Credit
Exposure exceeds thirty-three and one-third percent (331/3%) of the
Aggregate Commitment, the Borrower will pay to the Agent for the ratable
benefit of the Lenders based on their Outstanding Credit Exposures a
utilization fee (the "Utilization Fee") at a per annum rate equal to the
Applicable Fee Rate on the Aggregate Outstanding Credit Exposure on such
date, payable quarterly in arrears on each Payment Date and on the date
this Agreement is terminated in full and all Obligations hereunder have
been paid in full pursuant to Section 2.2.
2.7.3 Reductions in Aggregate Commitment. The Borrower may permanently
reduce the Aggregate Commitment in whole, or in part, ratably among the
Lenders in integral multiples of $5,000,000, upon at least ten (10)
Business Days' written notice to the Agent, which notice shall specify the
amount of any such reduction, provided, however, that the amount of the
Aggregate Commitment may not be reduced below the Aggregate Outstanding
Credit Exposure. All accrued facility fees shall be payable on the
effective date of any termination of the obligations of the Lenders to make
Credit Extensions hereunder and on the final date upon which all Revolving
Loans are repaid.
2.8. Minimum Amount of Each Advance. Each Eurodollar Advance shall be in
the minimum amount of $5,000,000 (and in multiples of $1,000,000 if in excess
thereof), and each Floating Rate Advance shall be in the minimum amount of
$5,000,000 (and in multiples of $1,000,000 if in excess thereof), provided,
however, that any Floating Rate Advance may be in the amount of the Available
Aggregate Commitment.
2.9. Optional Principal Payments. The Borrower may from time to time pay,
without penalty or premium, all outstanding Floating Rate Advances, or any
portion of the outstanding Floating Rate Advances, in a minimum aggregate amount
of $5,000,000 or any integral multiple of $1,000,000 in excess thereof, upon one
(1) Business Day's prior notice to the Agent. The Borrower may from time to time
pay, subject to the payment of any funding indemnification amounts required by
Section 3.4 but without penalty or premium, all outstanding Eurodollar Advances,
or, in a minimum aggregate amount of $5,000,000 or any integral multiple of
$1,000,000 in excess thereof, any portion of the outstanding Eurodollar Advances
upon three (3) Business Days' prior notice to the Agent; provided that no
Competitive Loan may be prepaid without the consent of the applicable Lender.
2.10. Method of Selecting Types and Interest Periods for New Revolving
Advances. The Borrower shall select the Type of Revolving Advance and, in the
case of each Revolving Eurodollar Advance, the Interest Period applicable
thereto from time to time; provided that there shall be no more than five (5)
Interest Periods in effect with respect to all of the Revolving Loans at any
time, unless such limit has been waived by the Agent in its sole discretion. The
Borrower shall give the Agent irrevocable notice (a "Borrowing Notice") not
later than 11:00 a.m. (New
21
York time) on the Borrowing Date of each Revolving Floating Rate Advance and
three Business Days before the Borrowing Date for each Revolving Eurodollar
Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Interest Period applicable
thereto.
The Agent shall provide written notice of each request for borrowing under this
Section 2.10 by 11:00 a.m. (New York time) (or, if later, within one hour after
receipt of the applicable Borrowing Notice from the Borrower) on each Borrowing
Date for each Floating Rate Advance or on the third Business Day prior to each
Borrowing Date for each Eurodollar Advance, as applicable. Not later than 1:00
p.m. (New York time) on each Borrowing Date, each Lender shall make available
its Revolving Loan or Revolving Loans in Federal or other funds immediately
available in New York to the Agent at its address specified pursuant to Article
XIII. The Agent will promptly make the funds so received from the Lenders
available to the Borrower at the Agent's aforesaid address.
2.11. Conversion and Continuation of Outstanding Revolving Advances; No
Conversion or Continuation of Revolving Eurodollar Advances After Default.
Revolving Floating Rate Advances shall continue as Floating Rate Advances unless
and until such Revolving Floating Rate Advances are converted into Revolving
Eurodollar Advances pursuant to this Section 2.11 or are repaid in accordance
with Section 2.9. Each Revolving Eurodollar Advance shall continue as a
Eurodollar Advance until the end of the then applicable Interest Period
therefor, at which time such Revolving Eurodollar Advance shall be automatically
converted into a Revolving Floating Rate Advance unless (x) such Revolving
Eurodollar Advance is or was repaid in accordance with Section 2.9 or (y) the
Borrower shall have given the Agent a Conversion/Continuation Notice (as defined
below) requesting that, at the end of such Interest Period, such Revolving
Eurodollar Advance continue as a Revolving Eurodollar Advance for the same or
another Interest Period. Subject to the terms of Section 2.8, the Borrower may
elect from time to time to convert all or any part of a Revolving Advance of any
Type into any other Type or Types of Advances; provided that any conversion of
any Revolving Eurodollar Advance shall be made on, and only on, the last day of
the Interest Period applicable thereto. Notwithstanding anything to the contrary
contained in this Section 2.11, during the continuance of a Default or an
Unmatured Default, the Agent may (or shall at the direction of the Required
Lenders), by notice to the Borrower, declare that no Revolving Advance may be
made, converted or continued as a Eurodollar Advance. The Borrower shall give
the Agent irrevocable notice (a "Conversion/Continuation Notice") of each
conversion of a Revolving Advance or continuation of a Revolving Eurodollar
Advance not later than 11:00 a.m. (New York time) at least one (1) Business Day,
in the case of a conversion into a Revolving Floating Rate Advance, or three (3)
Business Days, in the case of a conversion into or continuation of a Revolving
Eurodollar Advance, prior to the date of the requested conversion or
continuation, specifying:
22
(i) the requested date, which shall be a Business Day, of such conversion
or continuation,
(ii) the aggregate amount and Type of the Advance which is to be converted
or continued, and
(iii)the amount of such Advance which is to be converted into or continued
as a Eurodollar Advance and the duration of the Interest Period
applicable thereto.
This Section shall not apply to Competitive Loans or Swingline Loans, which may
not be converted or continued.
2.12. Changes in Interest Rate, etc. Each Floating Rate Advance shall bear
interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is automatically converted from a
Eurodollar Advance into a Floating Rate Advance pursuant to Section 2.11, to but
excluding the date it is paid or is converted into a Eurodollar Advance pursuant
to Section 2.11 hereof, at a rate per annum equal to the Floating Rate for such
day. Changes in the rate of interest on that portion of any Advance maintained
as a Floating Rate Advance will take effect simultaneously with each change in
the Alternate Base Rate. Each Eurodollar Advance shall bear interest on the
outstanding principal amount thereof from and including the first day of the
Interest Period applicable thereto to (but not including) the last day of such
Interest Period at the Eurodollar Rate determined by the Agent as applicable to
such Eurodollar Advance based upon the Borrower's selections under Sections 2.10
and 2.11 and otherwise in accordance with the terms hereof. No Interest Period
may end after the Facility Termination Date. Each Fixed Rate Advance shall bear
interest at the Fixed Rate applicable thereto.
2.13. Rates Applicable After Default. During the continuance of a Default
(including the Borrower's failure to pay any Loan when due, whether upon stated
maturity, acceleration or otherwise) the Required Lenders may, at their option,
by notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that (i)
each Eurodollar Advance shall bear interest for the remainder of the applicable
Interest Period at the rate otherwise applicable to such Interest Period plus 2%
per annum and (ii) each Floating Rate Advance shall bear interest at a rate per
annum equal to the Floating Rate in effect from time to time plus 2% per annum,
provided that, during the continuance of a Default under Section 7.6 or 7.7, the
interest rates set forth in clauses (i) and (ii) above shall be applicable to
all Credit Extensions, Advances, fees and other Obligations hereunder without
any election or action on the part of the Agent or any Lender.
2.14. Method of Payment. All payments of the Obligations hereunder shall be
made, without setoff, deduction, or counterclaim, in immediately available funds
to the Agent at the Agent's address specified pursuant to Article XIII, or at
any other Lending Installation of the Agent specified in writing by the Agent to
the Borrower, by 12:00 noon (New York time) on the date when due and shall be
applied ratably by the Agent among the Lenders. Each payment delivered to the
Agent for the account of any Lender shall be delivered promptly by the Agent to
such Lender in the same type of funds that the Agent received at its address
specified pursuant to
23
Article XIII or at any Lending Installation specified in a notice received by
the Agent from such Lender. The Agent is hereby authorized to charge the account
of the Borrower maintained with JPMCB for each payment of principal, interest
and fees as it becomes due hereunder.
2.15. Noteless Agreement; Evidence of Indebtedness. (i) Each Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder.
(ii) The Agent shall also maintain accounts in which it will record (a) the
date and the amount of each Loan made hereunder, the Type thereof and
the Interest Period (in the case of an Eurodollar Advance) with
respect thereto, (b) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender
hereunder, (c) the effective date and amount of each Assignment
Agreement delivered to and accepted by it and the parties thereto
pursuant to Section 12.3, (d) the amount of any sum received by the
Agent hereunder from the Borrower and each Lender's share thereof, and
(e) all other appropriate debits and credits as provided in this
Agreement, including, without limitation, all fees, charges, expenses
and interest.
(iii)The entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be prima facie evidence absent
manifest error of the existence and amounts of the Obligations therein
recorded; provided, however, that the failure of the Agent or any
Lender to maintain such accounts or any error therein shall not in any
manner affect the obligation of the Borrower to repay the Obligations
in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by a promissory
note in substantially the form of Exhibit E (a "Note"). In such event,
the Borrower shall prepare, execute and deliver to such Lender such
Note payable to the order of such Lender. Thereafter, the Loans
evidenced by such Note and interest thereon shall at all times (prior
to any assignment pursuant to Section 12.3) be represented by one or
more Notes payable to the order of the payee named therein, except to
the extent that any such Lender subsequently returns any such Note for
cancellation and requests that such Loans once again be evidenced as
described in paragraphs (i) and (ii) above.
2.16. Telephonic Notices. The Borrower hereby authorizes the Lenders and
the Agent to extend, convert or continue Advances, effect selections of Types of
Advances and to transfer funds based on telephonic notices made by any person or
persons the Agent or any Lender in good faith believes to be acting on behalf of
the Borrower, it being understood that the foregoing authorization is
specifically intended to allow Borrowing Notices and Conversion/Continuation
Notices to be given telephonically. The Borrower agrees to deliver promptly to
the Agent a written confirmation, signed by an Authorized Officer, if such
confirmation is requested by the Agent or any Lender, of each telephonic notice.
If the written confirmation differs in any
24
material respect from the action taken by the Agent and the Lenders, the records
of the Agent and the Lenders shall govern absent manifest error.
2.17. Interest Payment Dates; Interest and Fee Basis. Interest accrued on
each Floating Rate Advance shall be payable in arrears on each Payment Date,
commencing with the first such date to occur after the Original Effective Date,
on any date on which the Floating Rate Advance is prepaid, whether due to
acceleration or otherwise, and at maturity. Interest accrued on that portion of
the outstanding principal amount of any Floating Rate Advance converted into a
Eurodollar Advance on a day other than a Payment Date shall be payable on the
date of conversion. Interest accrued on each Eurodollar Advance shall be payable
on the last day of its applicable Interest Period, on any date on which the
Eurodollar Advance is prepaid, whether by acceleration or otherwise, and at
maturity. Interest accrued on each Eurodollar Advance having an Interest Period
longer than three months shall also be payable on the last day of each
three-month interval during such Interest Period. Interest accrued on each Fixed
Rate Loan shall be payable on the last day of the Interest Period applicable to
the Advance of which such Loan is a part and, in the case of a Fixed Rate
Advance with an Interest Period of more than 90 days' duration (unless otherwise
specified in the applicable Competitive Bid Request), each day prior to the last
day of such Interest Period that occurs at intervals of 90 days' duration after
the first day of such Interest Period, and any other dates that are specified in
the applicable Competitive Bid Request as dates for payment of interest with
respect to such Advance. Interest accrued on each Swingline Loan shall be
payable on the day that such Loan is required to be repaid. Interest accrued on
any Advance that is not paid when due shall be payable on demand and on the date
of payment in full. Interest on Eurodollar Advances, Fixed Rate Loans and fees
hereunder shall be calculated for actual days elapsed on the basis of a 360-day
year. Interest on Floating Rate Advances shall be calculated for actual days
elapsed on the basis of a 365/366-day year. Interest shall be payable for the
day an Advance is made but not for the day of any payment on the amount paid if
payment is received prior to 12:00 noon (New York time) at the place of payment.
If any payment of principal of or interest on an Advance, any fees or any other
amounts payable to the Agent or any Lender hereunder shall become due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day and, in the case of principal payment, such extension of time shall
be included in computing interest, fees and commissions in connection with such
payment.
2.18. Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions; Availability of Loans. Promptly after receipt thereof, the Agent
will notify each Lender in writing of the contents of each Aggregate Commitment
reduction notice, Borrowing Notice, Conversion/Continuation Notice, and
repayment notice received by it hereunder. The Agent will notify the Borrower
and each Lender of the interest rate applicable to each Revolving Eurodollar
Advance promptly upon determination of such interest rate and will give the
Borrower and each Lender prompt notice of each change in the Alternate Base
Rate.
2.19. Lending Installations. Each Lender may book its Loans at any Lending
Installation selected by such Lender and may change its Lending Installation
from time to time. All terms of this Agreement shall apply to any such Lending
Installation and the Loans and any Notes issued hereunder shall be deemed held
by each Lender for the benefit of any such Lending Installation. Each Lender
may, by written notice to the Agent and the Borrower in accordance
25
with Article XIII, designate replacement or additional Lending Installations
through which Loans will be made by it and for whose account Loan payments are
to be made.
2.20. Non-Receipt of Funds by the Agent. Unless the Borrower or a Lender,
as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three days and,
thereafter, the interest rate applicable to the relevant Loan or (y) in the case
of payment by the Borrower, the interest rate applicable to the relevant Loan.
2.21. Replacement of Lender. If the Borrower is required pursuant to
Section 3.1, 3.2 or 3.5 to make any additional payment to any Lender or if any
Lender's obligation to make or continue, or to convert Floating Rate Advances
into, Eurodollar Advances shall be suspended pursuant to Section 3.3 (any Lender
so affected an "Affected Lender"), the Borrower may elect, if such amounts
continue to be charged or such suspension is still effective, to terminate or
replace the Commitment of such Affected Lender, provided that no Default or
Unmatured Default shall have occurred and be continuing at the time of such
termination or replacement, and provided further that, concurrently with such
termination or replacement, (i) if the Affected Lender is being replaced,
another bank or other entity which is reasonably satisfactory to the Borrower
and the Agent shall agree, as of such date, to purchase for cash the Outstanding
Credit Exposure of the Affected Lender pursuant to an Assignment Agreement
substantially in the form of Exhibit C and to become a Lender for all purposes
under this Agreement and to assume all obligations of the Affected Lender to be
terminated as of such date and to comply with the requirements of Section 12.3
applicable to assignments, and (ii) the Borrower shall pay to such Affected
Lender in immediately available funds on the day of such replacement (A) all
interest, fees and other amounts then accrued but unpaid to such Affected Lender
by the Borrower hereunder to and including the date of termination, including
without limitation payments due to such Affected Lender under Sections 3.1, 3.2
and 3.5, and (B) an amount, if any, equal to the payment which would have been
due to such Lender on the day of such replacement under Section 3.4 had the
Loans of such Affected Lender been prepaid on such date rather than sold to the
replacement Lender, in each case to the extent not paid by the purchasing lender
and (iii) if the Affected Lender is being terminated, the Borrower shall pay to
such Affected Lender all Obligations due to such Affected Lender (including the
amounts described in the immediately preceding clauses (i) and (ii) plus the
outstanding principal balance of such Affected Lender's Credit Extensions).
2.22. Extension of Facility Termination Date. Commencing with the second
anniversary of the Original Effective Date, the Borrower may annually request
extensions of the Facility Termination Date by submitting a request for an
extension to the Agent (each, an
26
"Extension Request") no more than fifty-nine (59) and no less than forty-five
(45) days prior to each anniversary of the Original Effective Date, which
Extension Request shall specify (i) the new Facility Termination Date requested
by the Borrower, which new Facility Termination Date shall be a date not later
than one year after the then current Facility Termination Date and (ii) the date
(which date must be not less than 20 days after the date of the Extension
Request and not less than 10 days prior to the anniversary date immediately
following the date of such Extension Request) as of which the Lenders must
respond to the Extension Request (the "Response Date"), and which Extension
Request shall constitute a representation and warranty by the Borrower that the
conditions contained in Section 4.2 have been satisfied as of the date of such
request and as of the then effective Facility Termination Date. Promptly upon
receipt of an Extension Request, the Agent shall notify each Lender thereof and
shall request each Lender to approve the Extension Request. Each Lender
approving the Extension Request shall deliver its written consent no later than
the Response Date (and the failure to provide such written consent by such date
shall be deemed to be a decision not to extend) and the Extension Request, if
approved, shall become effective on or after the date (the "Effective Date")
immediately preceding the next anniversary of the Original Effective Date. The
Commitment of each Lender that declines to extend with respect to the Aggregate
Commitment may, at the option of the Borrower, be replaced in accordance with
Section 12.3 (but only to the extent a replacement Lender is then available) or
the Aggregate Commitment reduced. All Obligations due to each Lender that
declines to extend its Commitment under this Section 2.22 shall be paid in full
by the Borrower to the Agent for the account of each such Lender on the then
effective Facility Termination Date (without giving effect to any such requested
extension thereto). Lenders representing not less than 67% of the Aggregate
Commitments and the Borrower must agree to any extension with respect to the
Facility Termination Date for any such extension to become effective, and the
Agent shall promptly notify the Borrower and each Lender of any new Facility
Termination Date.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. Yield Protection. If, on or after the Original Effective Date, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in any such law, rule, regulation, policy, guideline or directive or in
the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
3.1.1 subjects any Lender or any applicable Lending Installation to
any Taxes, or changes the basis of taxation of payments (other than with
respect to Excluded Taxes) to any Lender in respect of its Eurodollar
Loans, or
3.1.2 imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended
by, any Lender or any applicable Lending
27
Installation (other than reserves and assessments taken into account in
determining the interest rate applicable to Eurodollar Advances), or
3.1.3 imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation of making,
funding or maintaining its Commitment, Eurodollar Loans or Fixed Rate Loans
or reduces any amount receivable by any Lender or any applicable Lending
Installation in connection with its Commitment, Eurodollar Loans or Fixed
Rate Loans, or requires any Lender or any applicable Lending Installation
to make any payment calculated by reference to the amount of Commitment,
Eurodollar Loans or Fixed Rate Loans held or interest received by it, by an
amount deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation of making or maintaining its Commitment,
Eurodollar Loans or Fixed Rate Loans or to reduce the return received by such
Lender or applicable Lending Installation in connection with such Commitment,
Eurodollar Loans or Fixed Rate Loans, then, within 15 days of demand,
accompanied by the written statement required by Section 3.6, by such Lender,
the Borrower shall pay such Lender such additional amount or amounts as will
compensate such Lender for such increased cost or reduction in amount received.
3.2. Changes in Capital Adequacy Regulations. If a Lender determines the
amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a Change, then, within 15 days of demand,
accompanied by the written statement required by Section 3.6, by such Lender,
the Borrower shall pay such Lender the amount necessary to compensate for any
shortfall in the rate of return on the portion of such increased capital which
such Lender determines is attributable to this Agreement, its Outstanding Credit
Exposure or its Commitment to make Revolving Loans hereunder (after taking into
account such Lender's policies as to capital adequacy). "Change" means (i) any
change after the Original Effective Date in the Risk-Based Capital Guidelines or
(ii) any adoption of, or change in, or change in the interpretation or
administration of any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive (whether or not
having the force of law) after the Original Effective Date which affects the
amount of capital required or expected to be maintained by any Lender or any
Lending Installation or any corporation controlling any Lender. "Risk-Based
Capital Guidelines" means (i) the risk-based capital guidelines in effect in the
United States on the Original Effective Date, including transition rules, and
(ii) the corresponding capital regulations promulgated by regulatory authorities
outside the United States implementing the July 1988 report of the Basle
Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the Original Effective Date.
3.3. Availability of Types of Advances. If (x) any Lender determines that
maintenance of its Eurodollar Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or (y) the Required Lenders determine that (i) deposits
of a type and maturity appropriate to match fund Eurodollar Advances are not
available or (ii) the interest rate applicable to Eurodollar Advances
28
does not accurately reflect the cost of making or maintaining Eurodollar
Advances, or (iii) no reasonable basis exists for determining the Eurodollar
Base Rate, then the Agent shall suspend the availability of Eurodollar Advances
and require any affected Eurodollar Advances to be repaid or converted to
Floating Rate Advances on the respective last days of the then current Interest
Periods with respect to such Loans or within such earlier period as required by
law, subject to the payment of any funding indemnification amounts required by
Section 3.4.
3.4. Funding Indemnification. If any payment of a Eurodollar Advance or a
Fixed Rate Loan occurs on a date which is not the last day of the applicable
Interest Period, whether because of acceleration, prepayment or otherwise, or a
Eurodollar Advance is not made or continued, a Fixed Rate Loan is not made or a
Floating Rate Advance is not converted into a Eurodollar Advance, on the date
specified by the Borrower for any reason other than default by the Lenders, or a
Eurodollar Advance or Fixed Rate Loan is not prepaid on the date specified by
the Borrower for any reason, the Borrower will indemnify each Lender for any
loss or cost incurred by it resulting therefrom, including, without limitation,
any loss or cost in liquidating or employing deposits acquired to fund or
maintain such Eurodollar Advance or Fixed Rate Loan.
3.5. Taxes. (i) All payments by the Borrower to or for the account of any
Lender or the Agent hereunder or under any Note shall be made free and clear of
and without deduction for any and all Taxes. If the Borrower shall be required
by law to deduct any Taxes from or in respect of any sum payable hereunder to
any Lender or the Agent, (a) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section 3.5) 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, (b) the Borrower shall make such deductions, (c) the
Borrower shall pay the full amount deducted to the relevant authority in
accordance with applicable law and (d) the Borrower shall furnish to the Agent
the original copy of a receipt evidencing payment thereof or, if a receipt
cannot be obtained with reasonable efforts, such other evidence of payment as is
reasonably acceptable to the Agent, in each case within 30 days after such
payment is made.
(ii) In addition, the Borrower shall pay any present or future stamp or
documentary taxes and any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under
any Note or from the execution or delivery of, or otherwise with
respect to, this Agreement or any Note ("Other Taxes").
(iii)The Borrower shall indemnify the Agent and each Lender for the full
amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed on amounts payable under this Section
3.5) paid by the Agent or such Lender as a result of its Commitment,
any Credit Extensions made by it hereunder, or otherwise in connection
with its participation in this Agreement and any liability (including
penalties, interest and expenses) arising therefrom or with respect
thereto. Payments due under this indemnification shall be made within
30 days of the date the Agent or such Lender makes demand therefor
pursuant to Section 3.6.
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(iv) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (each a "Non-U.S. Lender") agrees
that it will, not more than ten Business Days after the date on which
it becomes a party to this Agreement (but in any event before a
payment is due to it hereunder), (i) deliver to each of the Borrower
and the Agent two duly completed copies of United States Internal
Revenue Service Form W-8BEN or W-8ECI, certifying in either case that
such Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income
taxes, or (ii) in the case of a Non-U.S. Lender that is fiscally
transparent, deliver to the Agent a United States Internal Revenue
Form W-8IMY together with the applicable accompanying forms, W-8 or
W-9, as the case may be, and certify that it is entitled to an
exemption from United States withholding tax. Each Non-U.S. Lender
further undertakes to deliver to each of the Borrower and the Agent
(x) renewals or additional copies of such form (or any successor form)
on or before the date that such form expires or becomes obsolete, and
(y) after the occurrence of any event requiring a change in the most
recent forms so delivered by it, such additional forms or amendments
thereto as may be reasonably requested by the Borrower or the Agent.
All forms or amendments described in the preceding sentence shall
certify that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States
federal income taxes, unless an event (including without limitation
any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent such Lender
from duly completing and delivering any such form or amendment with
respect to it and such Lender advises the Borrower and the Agent that
it is not capable of receiving payments without any deduction or
withholding of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to provide
the Borrower with an appropriate form pursuant to clause (iv) above
(unless such failure is due to a change in treaty, law or regulation,
or any change in the interpretation or administration thereof by any
governmental authority, occurring subsequent to the date on which such
Non-U.S. Lender became a party to this Agreement), such Non-U.S.
Lender shall not be entitled to indemnification under this Section 3.5
with respect to Taxes imposed by the United States; provided that,
should a Non-U.S. Lender which is otherwise exempt from or subject to
a reduced rate of withholding tax become subject to Taxes because of
its failure to deliver a form required under clause (iv) above, the
Borrower shall take such steps as such Non-U.S. Lender shall
reasonably request to assist such Non-U.S. Lender to recover such
Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any
Note pursuant to the law of any relevant jurisdiction or any treaty
shall deliver to the Borrower (with a copy to the Agent), at the time
or times prescribed by applicable law, such properly completed and
executed documentation prescribed by applicable law as will permit
such payments to be made without withholding or at a reduced rate.
30
(vii)If the U.S. Internal Revenue Service or any other governmental
authority of the United States or any other country or any political
subdivision thereof asserts a claim that the Agent did not properly
withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered or properly completed,
because such Lender failed to notify the Agent of a change in
circumstances which rendered its exemption from withholding
ineffective, or for any other reason), such Lender shall indemnify the
Agent fully for all amounts paid, directly or indirectly, by the Agent
as tax, withholding therefor, or otherwise, including penalties and
interest, and including taxes imposed by any jurisdiction on amounts
payable to the Agent under this subsection, together with all
reasonable costs and expenses related thereto (including attorneys'
fees and time charges of attorneys for the Agent, which attorneys may
be employees of the Agent). The obligations of the Lenders under this
Section 3.5(vii) shall survive the payment of the Obligations and
termination of this Agreement.
3.6. Lender Statements; Survival of Indemnity. Each Lender shall deliver a
written statement of such Lender to the Borrower (with a copy to the Agent) as
to the amount due, if any, under Section 3.1, 3.2, 3.4 or 3.5. Such written
statement shall set forth in reasonable detail the calculations upon which such
Lender determined such amount and shall be final, conclusive and binding on the
Borrower in the absence of manifest error, and upon reasonable request of the
Borrower, such Lender shall promptly provide supporting documentation describing
and/or evidence of the applicable event giving rise to such amount to the extent
not inconsistent with such Lender's policies or applicable law. Determination of
amounts payable under such Sections in connection with a Eurodollar Loan shall
be calculated as though each Lender funded its Eurodollar Loan through the
purchase of a deposit of the type, currency and maturity corresponding to the
deposit used as a reference in determining the Eurodollar Rate applicable to
such Loan, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement of any Lender shall be
payable on demand after receipt by the Borrower of such written statement. The
obligations of the Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive
payment of the Obligations and termination of this Agreement.
3.7. Alternative Lending Installation. To the extent reasonably possible,
each Lender shall designate an alternate Lending Installation with respect to
its Eurodollar Loans to reduce any liability of the Borrower to such Lender
under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of Eurodollar
Advances under Section 3.3, so long as such designation is not, in the judgment
of such Lender, disadvantageous to such Lender. A Lender's designation of an
alternative Lending Installation shall not affect the Borrower's rights under
Section 2.21 to replace a Lender.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Restatement Effective Date. The amendment and restatement of the
Pre-Restatement Credit Agreement by this Agreement shall not become effective
unless the following conditions precedent have been satisfied and the Borrower
has furnished to the Agent with sufficient copies for the Lenders:
31
4.1.1 Counterparts of this Agreement that, when taken together, bear
the signatures of the Borrower, the Agent and the Required Lenders.
4.1.2 A certificate, signed by the Treasurer of the Borrower, stating
that on the Restatement Effective Date (a) no Default or Unmatured Default
has occurred and is continuing, (b) all of the representations and
warranties in Article V shall be true and correct in all material respects
as of such date and (c) no material adverse change in the business,
financial condition or operations of the Borrower and its Subsidiaries,
taken as a whole, has occurred since December 31, 2003 except for the
Disclosed Matters.
4.1.3 Such other documents as any Lender or its counsel may have
reasonably requested.
4.2. Each Credit Extension. The Lenders shall not be required to make any
Credit Extension unless on the applicable Credit Extension Date:
4.2.1 There exists no Default or Unmatured Default.
4.2.2 The representations and warranties contained in Article V are
true and correct as of such Credit Extension Date except to the extent any
such representation or warranty is stated to relate solely to an earlier
date, in which case such representation or warranty shall have been true
and correct on and as of such earlier date.
4.2.3 All legal matters incident to the making of such Advance shall
be satisfactory to the Lenders and their counsel.
4.2.4 In the case of any Credit Extension which would (i) be made
after June 30, 2007, (ii) cause the aggregate principal amount of
short-term Indebtedness of the Borrower to exceed $1,500,000,000, or (iii)
cause the aggregate principal amount of issuances and sales by the Borrower
of capital stock, preferred stock, the other securities specified in the
Securities and Exchange Commission order referred to in Section 5.18 and
long-term Indebtedness to exceed $2,500,000,000, such Credit Extension
shall have been duly authorized by an order of the Securities and Exchange
Commission and the Agent shall have received a true and complete copy of
such order authorizing such Credit Extension.
Each Borrowing Notice with respect to each such Credit Extension shall
constitute a representation and warranty by the Borrower that the conditions
contained in Sections 4.2.1, 4.2.2, 4.2.3 and 4.2.4 have been satisfied. Any
Lender may require a duly completed compliance certificate in substantially the
form of Exhibit B as a condition to making a Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each Lender and the Agent as of
each of (i) the Restatement Effective Date, (ii) the date of the initial Credit
Extension hereunder after the
32
Restatement Effective Date (if different from the Restatement Effective Date)
and (iii) each date as required by Section 4.2:
5.1. Existence and Standing. Each of the Borrower and its Subsidiaries is a
corporation, partnership (in the case of Subsidiaries only) or limited liability
company duly and properly incorporated or organized, as the case may be, validly
existing and (to the extent such concept applies to such entity) in good
standing under the laws of its jurisdiction of incorporation or organization and
has all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
5.2. Authorization and Validity. The Borrower has the power and authority
and legal right to execute and deliver the Loan Documents and to perform its
obligations thereunder. The execution and delivery by the Borrower of the Loan
Documents and the performance of its obligations thereunder have been duly
authorized by proper proceedings, and the Loan Documents to which the Borrower
is a party constitute legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their terms, except as
enforceability may be limited by (i) bankruptcy, insolvency, fraudulent
conveyances, reorganization or similar laws relating to or affecting the
enforcement of creditors' rights generally; (ii) general equitable principles
(whether considered in a proceeding in equity or at law) and (iii) requirements
of reasonableness, good faith and fair dealing.
5.3. No Conflict; Government Consent. Neither the execution and delivery by
the Borrower of the Loan Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
(i) any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on the Borrower or any of its Subsidiaries or (ii) the Borrower's
or any Subsidiary's articles or certificate of incorporation, partnership
agreement, certificate of partnership, articles or certificate of organization,
by-laws, or operating agreement or other management agreement, as the case may
be, or (iii) the provisions of any indenture, instrument or agreement to which
the Borrower or any of its Subsidiaries is a party or is subject, or by which
it, or its Property, is bound, or conflict with, or constitute a default under,
or result in, or require, the creation or imposition of any Lien in, of or on
the Property of the Borrower or a Subsidiary pursuant to the terms of, any such
indenture, instrument or agreement. No order, consent, adjudication, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, or other action in respect of any governmental or public
body or authority, or any subdivision thereof, which has not been obtained by
the Borrower or any of its Subsidiaries, is required to be obtained by the
Borrower or any of its Subsidiaries in connection with the execution and
delivery of the Loan Documents, the borrowings under this Agreement, the payment
and performance by the Borrower of the Obligations or the legality, validity,
binding effect or enforceability of any of the Loan Documents.
5.4. Financial Statements. The December 31, 2003 consolidated financial
statements of the Borrower and its Subsidiaries included in the Borrower's Form
10-K for the fiscal year ended December 31, 2003, the March 31, 2004
consolidated financial statements of the Borrower and its Subsidiaries included
in the Borrower's Form 10-Q for the quarterly period ended March 31, 2004, and
the June 30, 2004 consolidated financial statements of the Borrower and its
Subsidiaries included in the Borrower's Form 10-Q for the quarterly period ended
June 30, 2004
33
heretofore delivered to the Agent and the Lenders, in each case, were prepared
in accordance with generally accepted accounting principles in effect on the
date such statements were prepared (except for the absence of footnotes and
subject to year end audit adjustments) and fairly present the consolidated
financial condition and operations of the Borrower and its Subsidiaries at such
date and the consolidated results of their operations for the period then ended.
5.5. Material Adverse Change. Since December 31, 2003, there has been no
change in the business, Property, condition (financial or otherwise) or results
of operations of the Borrower and its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect (a "Material Adverse Change"), except
for the Disclosed Matters; provided, however, that neither (i) any ratings
downgrade applicable to the Indebtedness of the Borrower or any of its
Subsidiaries by Moody's or S&P nor (ii) the Borrower's or any of its
Subsidiaries' inability to place commercial paper in the capital markets, shall,
in and of themselves, be deemed events constituting a Material Adverse Change.
5.6. Taxes. The Borrower and its Subsidiaries (and to the best knowledge of
the Borrower with respect to entities acquired pursuant to the IP Acquisition
and taxable periods ending on or before January 1, 2003 for CILCORP and its
subsidiaries) have filed all United States federal tax returns and all other tax
returns which are required to be filed and have paid all taxes due pursuant to
said returns or pursuant to any assessment received by the Borrower or any of
its Subsidiaries, except in respect of such taxes, if any, as are being
contested in good faith and as to which adequate reserves have been provided in
accordance with Agreement Accounting Principles and as to which no Lien exists
(except as permitted by Section 6.13.1). The Internal Revenue Service has
completed audits of the United States federal income tax returns filed by Union
Electric for all periods through the calendar taxable year ending December 31,
1997 and by CIPSCO, Inc. for all periods through the calendar taxable year
ending December 31, 1997. The Internal Revenue Service has not completed audits
of the United States federal income tax returns filed by the Borrower and its
Subsidiaries for subsequent periods. No claims have been, or are being, asserted
with respect to such taxes that could reasonably be expected to result in a
Material Adverse Effect and no liens have been filed with respect to such taxes.
The charges, accruals and reserves on the books of the Borrower and its
Subsidiaries in respect of any taxes or other governmental charges are adequate.
5.7. Litigation and Contingent Obligations. Other than the Disclosed
Matters, there is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the knowledge of any of their officers,
threatened against or affecting the Borrower or any of its Subsidiaries which
could, if determined adversely to the Borrower or its Subsidiaries, reasonably
be expected to have a Material Adverse Effect or which seeks to prevent, enjoin
or delay the making of any Loans. Other than any liability incident to any
litigation, arbitration or proceeding which could not reasonably be expected to
have a Material Adverse Effect, the Borrower has no material contingent
obligations not provided for or disclosed in the financial statements referred
to in Section 5.4.
5.8. Subsidiaries. Schedule 1 contains an accurate list of all Subsidiaries
of the Borrower as of the date of this Agreement, setting forth their respective
jurisdictions of organization and the percentage of their respective capital
stock or other ownership interests
34
owned by the Borrower or other Subsidiaries. All of the issued and outstanding
shares of capital stock or other ownership interests of such Subsidiaries have
been (to the extent such concepts are relevant with respect to such ownership
interests) duly authorized and issued and are fully paid and non-assessable.
5.9. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other ERISA Events that have occurred or are
reasonably expected to occur, could reasonably be expected to result in a
Material Adverse Effect.
5.10. Accuracy of Information. The information, exhibits or reports
furnished by the Borrower to the Agent or to any Lender in connection with the
negotiation of, or compliance with, the Loan Documents as of the date furnished
do not contain any material misstatement of fact or omit to state a material
fact or any fact necessary to make the statements contained therein not
misleading.
5.11. Regulation U. Neither the Borrower nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose, whether immediate, incidental or ultimate of
buying or carrying margin stock (as defined in Regulation U), and after applying
the proceeds of each Advance, margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of the Borrower and its
Subsidiaries which are subject to any limitation on sale, pledge, or any other
restriction hereunder.
5.12. Material Agreements. Neither the Borrower nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect as described in clauses (ii) and/or (iii) of the definition
thereof. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement or instrument to which it is a party,
which default could reasonably be expected to have a Material Adverse Effect or
(ii) any agreement or instrument evidencing or governing Indebtedness, which
default could be reasonably expected to have a Material Adverse Effect.
5.13. Compliance With Laws. Except for the Disclosed Matters, the Borrower
and its Subsidiaries have complied with all applicable statutes, rules,
regulations, orders and restrictions of any domestic or foreign government or
any instrumentality or agency thereof having jurisdiction over the conduct of
their respective businesses or the ownership of their respective Property which
non-compliance therewith could reasonably be expected to result in a Material
Adverse Effect.
5.14. Ownership of Properties. On the date of this Agreement, the Borrower
and its Subsidiaries have good title (except for minor defects in title that do
not interfere with their ability to conduct their business as currently
conducted or to utilize such properties for the intended purposes), free of all
Liens other than those permitted by Section 6.13, to all of the assets material
to the Borrower's business reflected in the Borrower's most recent consolidated
financial statements provided to the Agent, as owned by the Borrower and its
Subsidiaries.
35
5.15. Plan Assets; Prohibited Transactions. The Borrower is not an entity
deemed to hold "plan assets" within the meaning of 29 C.F.R. ss. 2510.3-101 of
an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject
to Title I of ERISA or any plan (within the meaning of Section 4975 of the
Code), and assuming the accuracy of the representations and warranties made in
Section 9.12 and in any assignment made pursuant to Section 12.3.3, neither the
execution of this Agreement nor the making of Loans hereunder gives rise to a
prohibited transaction within the meaning of Section 406 of ERISA or Section
4975 of the Code.
5.16. Environmental Matters. In the ordinary course of its business, the
officers of the Borrower consider the effect of Environmental Laws on the
business of the Borrower and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to the Borrower
due to Environmental Laws. On the basis of this consideration, the Borrower has
concluded that, other than the Disclosed Matters, Environmental Laws cannot
reasonably be expected to have a Material Adverse Effect. Except for the
Disclosed Matters, and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, neither the Borrower nor any Subsidiary has received
any notice to the effect that its operations are not in material compliance with
any of the requirements of applicable Environmental Laws or are the subject of
any federal or state investigation evaluating whether any remedial action is
needed to respond to a release of any toxic or hazardous waste or substance into
the environment.
5.17. Investment Company Act. Neither the Borrower nor any Subsidiary is an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
5.18. Public Utility Holding Company Act; Securities and Exchange
Commission Authorization. The Borrower is a "holding company" as such term is
defined in the Public Utility Holding Company Act of 1935, as amended (together
with all rules, regulations and orders promulgated or otherwise issued in
connection therewith, the "1935 Act"). The Securities and Exchange Commission,
in accordance with the 1935 Act, has issued an order authorizing (a) the
incurrence by the Borrower of short-term Indebtedness in an aggregate principal
amount not to exceed at any time $1,500,000,000 and (b) the issuance and sale by
the Borrower of capital stock, preferred stock, certain other specified
securities and long-term Indebtedness in an aggregate principal amount not to
exceed at any time $2,500,000,000, subject to, among other things, the condition
that all such Indebtedness be issued on or before June 30, 2007 and, in the case
of short-term Indebtedness, mature not later than 364 days thereafter. An
additional authorization from the Securities and Exchange Commission will be
necessary in order for the Borrower, after June 30, 2007, to obtain any Advances
under this Agreement (assuming the Facility Termination Date has not already
occurred prior to such date) or to incur or issue Indebtedness, including,
without limitation, Loans extended under this Agreement.
5.19. Insurance. The Borrower maintains, and has caused each Subsidiary to
maintain, with financially sound and reputable insurance companies insurance on
all their Property in such amounts, subject to such deductibles and
self-insurance retentions and covering such properties and risks as is
consistent with sound business practice.
36
5.20. No Default or Unmatured Default. No Default or Unmatured Default has
occurred and is continuing.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Financial Reporting. The Borrower will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance
with generally accepted accounting principles, and furnish to the Agent, and the
Agent shall promptly deliver to each of the Lenders (it being agreed that the
obligation of the Borrower to furnish the financial statements referred to in
paragraphs 6.1.1 and 6.1.2 below may be satisfied by the delivery of annual and
quarterly reports from Borrower to the Securities and Exchange Commission on
Forms 10-K and 10-Q containing such statements):
6.1.1 Within 65 days after the close of each fiscal year, Borrower's
audited financial statements prepared in accordance with Agreement
Accounting Principles on a consolidated basis for itself and its
Subsidiaries, including balance sheets as of the end of such period,
statements of income and statements of cash flows, accompanied by (a) an
audit report, unqualified as to scope, of a nationally recognized firm of
independent public accountants; (b) any management letter prepared by said
accountants, and (c) a certificate of said accountants that, in the course
of their examination necessary for their certification of the foregoing,
they have obtained no knowledge of any Default, or if, in the opinion of
such accountants, any Default shall exist, stating the nature and status
thereof.
6.1.2 Within 45 days after the close of the first three quarterly
periods of each of its fiscal years, for itself and its Subsidiaries,
Borrower's consolidated unaudited balance sheets as at the close of each
such period and consolidated statements of income and a statement of cash
flows for the period from the beginning of such fiscal year to the end of
such quarter, all certified as to fairness of presentation, compliance with
Agreement Accounting Principles and consistency by its chief financial
officer, controller or treasurer.
6.1.3 Together with the financial statements required under Sections
6.1.1 and 6.1.2, a compliance certificate in substantially the form of
Exhibit B signed by its chief financial officer, controller or treasurer
showing the calculations necessary to determine compliance with this
Agreement and stating that no Default or Unmatured Default exists, or if
any Default or Unmatured Default exists, stating the nature and status
thereof.
6.1.4 As soon as possible and in any event within 10 days after the
Borrower knows that any ERISA Event has occurred that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower, its Subsidiaries or any
Commonly Controlled Entity in an aggregate amount
37
exceeding $25,000,000, a statement, signed by the chief financial officer,
controller or treasurer of the Borrower, describing said ERISA Event and
the action which the Borrower proposes to take with respect thereto.
6.1.5 As soon as possible and in any event within 10 days after
receipt by the Borrower, a copy of (a) any notice or claim to the effect
that the Borrower or any of its Subsidiaries is or may be liable to any
Person as a result of the release by the Borrower, any of its Subsidiaries,
or any other Person of any toxic or hazardous waste or substance into the
environment, and (b) any notice alleging any violation of any federal,
state or local environmental, health or safety law or regulation by the
Borrower or any of its Subsidiaries, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
6.1.6 Promptly upon becoming aware thereof, notice of any upgrading or
downgrading of the rating of the Borrower's commercial paper, the
Borrower's senior unsecured debt or the First Mortgage Bonds by Moody's or
S&P.
6.1.7 Such other information (including non-financial information) as
the Agent or any Lender may from time to time reasonably request.
6.2. Use of Proceeds. The Borrower will, and will cause each Subsidiary to,
use the proceeds of the Credit Extensions for general corporate purposes,
including without limitation, for working capital, commercial paper liquidity
support with respect to commercial paper issued by the Borrower or its
Subsidiaries, to fund loans under and pursuant to the Money Pool Agreements, and
to pay fees and expenses incurred in connection with this Agreement. The
Borrower shall use the proceeds of Credit Extensions in compliance with all
applicable legal and regulatory requirements and any such use shall not result
in a violation of any such requirements, including, without limitation,
Regulation U and Regulation X, the Securities Act of 1933, as amended, and the
Securities Exchange Act of 1934, as amended, and the regulations promulgated
thereunder.
6.3. Notice of Default. Within five (5) Business Days after an Authorized
Officer becomes aware thereof, the Borrower will, and will cause each Subsidiary
to, give notice in writing to the Lenders of the occurrence of any Default or
Unmatured Default and, unless otherwise reported to the Securities and Exchange
Commission in the Borrower's filings under the Securities Exchange Act of 1934,
of any other development, financial or otherwise, which could reasonably be
expected to have a Material Adverse Effect.
6.4. Conduct of Business. The Borrower will, and will cause each Subsidiary
to, carry on and conduct its business in substantially the same manner and in
substantially the same fields of enterprise as it is presently conducted or in a
manner or fields of enterprise reasonably related thereto and do all things
necessary to remain duly incorporated or organized, validly existing and (to the
extent such concept applies to such entity) in good standing as a domestic
corporation, partnership or limited liability company in its jurisdiction of
incorporation or organization, as the case may be, and maintain all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted.
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6.5. Taxes. The Borrower will, and will cause each Subsidiary to, timely
file complete and correct United States federal and applicable foreign, state
and local tax returns required by law and pay when due all taxes, assessments
and governmental charges and levies upon it or its income, profits or Property,
except those which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves have been set aside in accordance
with Agreement Accounting Principles.
6.6. Insurance. The Borrower will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on
all their Property in such amounts, subject to such deductibles and
self-insurance retentions, and covering such risks as is consistent with sound
business practice, and the Borrower will furnish to any Lender upon request full
information as to the insurance carried.
6.7. Compliance with Laws; Securities and Exchange Commission
Authorization. (a) The Borrower will, and will cause each Subsidiary to, comply
with all laws, rules, regulations, orders, writs, judgments, injunctions,
decrees or awards to which it may be subject including, without limitation, all
Environmental Laws, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(b) From time to time prior to the expiration of the approval of the
Securities and Exchange Commission described in Section 5.18 with respect to the
Borrower's Indebtedness, so long as this Agreement remains in effect or the
Obligations incurred by the Borrower under or in connection herewith remain
outstanding, the Borrower will obtain an extension of such approval and the
Borrower shall provide a notice to the Agent of the receipt of such extension,
which notice shall include the expiration date of the most recent approval and
the total amount of Indebtedness of the Borrower authorized therein. The
Borrower further agrees not to request any Advance or permit any Loan to remain
outstanding hereunder in violation of the above mentioned Securities and
Exchange Commission approval or any conditions thereof, as in effect from time
to time.
6.8. Maintenance of Properties. Subject to Section 6.11, the Borrower will,
and will cause each Subsidiary to, do all things necessary to maintain,
preserve, protect and keep its Property used in the operation of its business in
good repair, working order and condition (ordinary wear and tear excepted), and
make all necessary and proper repairs, renewals and replacements so that its
business carried on in connection therewith may be properly conducted at all
times.
6.9. Inspection; Keeping of Books and Records. The Borrower will, and will
cause each Subsidiary to, permit the Agent and the Lenders, by their respective
representatives and agents, to inspect any of the Property, books and financial
records of the Borrower and each Subsidiary, to examine and make copies of the
books of accounts and other financial records of the Borrower and each
Subsidiary, and to discuss the affairs, finances and accounts of the Borrower
and each Subsidiary with, and to be advised as to the same by, their respective
officers at such reasonable times and intervals as the Agent or any Lender may
designate. The Borrower shall keep and maintain, and cause each of its
Subsidiaries to keep and maintain, in all material respects, proper books of
record and account in which entries in conformity with Agreement
39
Accounting Principles shall be made of all dealings and transactions in relation
to their respective businesses and activities. If a Default has occurred and is
continuing, the Borrower, upon the Agent's request, shall turn over copies of
any such records to the Agent or its representatives.
6.10. Merger. The Borrower will not, nor will it permit any Subsidiary to,
merge or consolidate with or into any other Person, except (i) any Subsidiary
may merge or consolidate with the Borrower if the Borrower is the corporation
surviving such merger, (ii) any Subsidiary may merge or consolidate with any
other Subsidiary, provided that the Borrower's aggregate direct and indirect
ownership interest in the survivor thereof shall not be less than the greater of
the Borrower's direct and indirect ownership interest in such Subsidiaries prior
to such merger, and (iii) the Borrower or any Subsidiary may merge or
consolidate with any other Person if (a) such Person was organized under the
laws of the United States of America or one of its States and (b) the Borrower
or such Subsidiary is the corporation surviving such merger; provided that, in
each case, after giving effect thereto, no Default will be in existence.
6.11. Sale of Assets. The Borrower will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property to any other
Person, except:
6.11.1 Sales of electricity, natural gas, emissions credits and other
commodities in the ordinary course of business.
6.11.2 A disposition of assets by a Subsidiary to the Borrower or
another Subsidiary or by the Borrower to a Subsidiary.
6.11.3 A disposition of obsolete property, property no longer used in
the business of the Borrower or its Subsidiaries or other assets in the
ordinary course of business of the Borrower or any Subsidiary.
6.11.4 The transfer pursuant to a requirement or law or any regulatory
authority having jurisdiction, of functional and/or operational control of
(but not of title to) transmission facilities of the Borrower or its
Subsidiaries to an Independent System Operator, Regional Transmission
Organization or to some other entity which has responsibility for operating
and planning a regional transmission system.
6.11.5 Pursuant to transactions in connection with the Peno Creek
Project.
6.11.6 Leases, sales or other dispositions of its Property that,
together with all other Property of the Borrower and its Subsidiaries
previously leased, sold or disposed of (other than dispositions otherwise
permitted by this Section 6.11) since the Original Effective Date, do not
constitute Property which represents more than thirty-five percent (35%) of
the Consolidated Tangible Assets of the Borrower as would be shown in the
consolidated financial statements of the Borrower and its Subsidiaries as
at the end of the fiscal year ending immediately prior to the date of such
lease, sale or other disposition.
6.12. Indebtedness of Project Finance Subsidiaries, Investments in Project
Finance Subsidiaries; Acquisitions. Neither the Borrower nor any Subsidiary
shall be directly or indirectly, primarily or secondarily, liable for any
Indebtedness or any other form of liability,
40
whether direct, contingent or otherwise, of a Project Finance Subsidiary nor
shall the Borrower or any Subsidiary provide any guarantee of the Indebtedness,
liabilities or other obligations of a Project Finance Subsidiary. The Borrower
will not, nor will it permit any Subsidiary to, make or suffer to exist
Investments in Project Finance Subsidiaries in excess of $100,000,000 in the
aggregate at any time. The Borrower will not, nor will it permit any Subsidiary
to, consummate any Acquisition other than an Acquisition (a) which is
consummated on a non-hostile basis approved by a majority of the board of
directors or other governing body of the Person being acquired; and (b) which
involves the purchase of a business line similar, related, complementary or
incidental to that of the Borrower and its Subsidiaries as of the Original
Effective Date unless the purchase price therefor is less than or equal to (i)
$10,000,000 with respect thereto or (ii) $50,000,000 when taken together with
all other Acquisitions consummated during the term of this Agreement which do
not otherwise satisfy the conditions described above in this clause (b), and, as
of the date of such Acquisition and after giving effect thereto, no Default or
Unmatured Default shall exist.
6.13. Liens. The Borrower will not, nor will it permit any Subsidiary
(other than a Project Finance Subsidiary) to, create, incur, or suffer to exist
any Lien in, of or on the Property of the Borrower or any of its Subsidiaries,
except:
6.13.1 Liens, if any, securing the Loans and other Obligations
hereunder.
6.13.2 Liens for taxes, assessments or governmental charges or levies
on its Property if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good
faith and by appropriate proceedings and for which adequate reserves in
accordance with Agreement Accounting Principles shall have been set aside
on its books.
6.13.3 Liens imposed by law, such as landlords', wage earners',
carriers', warehousemen's and mechanics' liens and other similar liens
arising in the ordinary course of business which secure payment of
obligations not more than 60 days past due or which are being contested in
good faith by appropriate proceedings and for which adequate reserves in
accordance with Agreement Accounting Principles shall have been set aside
on its books.
6.13.4 Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other
social security or retirement benefits, or similar legislation.
6.13.5 Liens existing on the date hereof and described in Schedule 2.
6.13.6 Deposits securing liability to insurance carriers under
insurance or self-insurance arrangements.
6.13.7 Deposits or accounts to secure the performance of bids, trade
contracts or obligations (other than for borrowed money), vendor and
service provider arrangements, leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business.
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6.13.8 Easements, reservations, rights-of-way, restrictions, survey
exceptions and other similar encumbrances as to real property of the
Borrower and its Subsidiaries which customarily exist on properties of
corporations engaged in similar activities and similarly situated and which
do not materially interfere with the conduct of the business of the
Borrower or such Subsidiary conducted at the property subject thereto.
6.13.9 Liens arising out of judgments or awards not exceeding
$50,000,000 in the aggregate with respect to which appeals are being
diligently pursued, and, pending the determination of such appeals, such
judgments or awards having been effectively stayed.
6.13.10 Liens created pursuant to the Existing Indentures securing the
First Mortgage Bonds; provided that the Liens of such Existing Indentures
shall extend only to the property of Union Electric and CIPS (including, to
the extent applicable, after acquired property) that is or would be covered
by the Liens of the Existing Indentures as in effect on the date hereof
covered by such Liens.
6.13.11 Liens incurred in connection with the Peno Creek Project.
6.13.12 Liens existing on any capital assets of any Subsidiary of the
Borrower at the time such Subsidiary becomes a Subsidiary and not created
in contemplation of such event.
6.13.13 Liens on any capital assets securing Indebtedness incurred or
assumed for the purpose of financing or refinancing all or any part of the
cost of acquiring or constructing such asset; provided that such Lien
attaches to such asset concurrently with or within eighteen (18) months
after the acquisition or completion or construction thereof.
6.13.14 Liens existing on any capital assets of any Subsidiary of the
Borrower at the time such Subsidiary is merged or consolidated with or into
the Borrower or any Subsidiary and not created in contemplation of such
event.
6.13.15 Liens existing on any assets prior to the acquisition thereof
by the Borrower or any Subsidiary and not created in contemplation thereof;
provided that such Liens do not encumber any other property or assets.
6.13.16 Liens (a) on the capital stock of CILCO and on the assets of
CILCO and any other Subsidiary of CILCORP existing on the date hereof
and/or (b) created pursuant to the Existing CILCO Indenture securing First
Mortgage Bonds; provided that the Liens of such Existing CILCO Indenture
shall extend only to the property (including, to the extent applicable,
after acquired property) that is covered by the Liens of the Existing CILCO
Indenture as in effect on the date hereof.
6.13.17 Undetermined Liens and charges incidental to construction.
6.13.18 Liens on Property or assets of a Subsidiary in favor of the
Borrower or a Subsidiary that is directly or indirectly wholly owned by the
Borrower.
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6.13.19 Subject and pursuant to the IP Acquisition, Liens (a) on the
assets of IP and any subsidiary of IP existing as of the IP Acquisition
and/or (b) created pursuant to the Existing IP Indenture securing First
Mortgage Bonds; provided that the Liens of such Existing IP Indenture shall
extend only to the property (including, to the extent applicable, after
acquired property) that is covered by the Liens of the Existing IP
Indenture as in effect on the date of the IP Acquisition.
6.13.20 Liens arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted by any of
Section 6.13.10 through 6.13.19; provided that (a) such Indebtedness is not
secured by any additional assets, and (b) the amount of such Indebtedness
secured by any such Lien is not increased.
6.13.21 From and after the IP Acquisition, any Liens existing on any
assets of IP or any of its subsidiaries or related trusts related to the
Illinois Power Special Purpose Trust Transitional Funding Trust Notes,
Series 1998-1.
6.14. Affiliates. The Borrower will not, and will not permit any Subsidiary
to, enter into any transaction (including, without limitation, the purchase or
sale of any Property or service) with, or make any payment or transfer to, any
Affiliate (other than the Borrower and its Subsidiaries) except in the ordinary
course of business and pursuant to the reasonable requirements of the Borrower's
or such Subsidiary's business and, except to the extent that the terms and
consideration of any such transaction are mandated, limited or otherwise subject
to conditions imposed by any regulatory or government body, upon fair and
reasonable terms no less favorable to the Borrower or such Subsidiary than the
Borrower or such Subsidiary would obtain in a comparable arm's-length
transaction.
6.15. Financial Contracts. The Borrower will not, nor will it permit any
Subsidiary, to, enter into or remain liable upon any Rate Management
Transactions except for those entered into in the ordinary course of business
for bona fide hedging purposes and not for speculative purposes.
6.16. Subsidiary Covenants. The Borrower will not, and will not permit any
Subsidiary other than a Project Finance Subsidiary to, create or otherwise cause
to become effective any consensual encumbrance or restriction of any kind on the
ability of any Subsidiary other than a Project Finance Subsidiary (i) to pay
dividends or make any other distribution on its common stock, (ii) to pay any
Indebtedness or other obligation owed to the Borrower or any other Subsidiary,
or (iii) to make loans or advances or other Investments in the Borrower or any
other Subsidiary, in each case, other than (a) restrictions and conditions
imposed by law or by this Agreement or the Existing Credit Agreements, (b)
restrictions and conditions existing on the date hereof or, to the best
knowledge of the Borrower, as of and resulting from the IP Acquisition, in each
case as identified on Schedule 3 (without giving effect to any amendment or
modification expanding the scope of any such restriction or condition), (c)
restrictions on dividends on the capital stock of Union Electric entered into in
connection with future issuances of subordinated capital income securities, to
the extent the same are not more restrictive than those benefiting the holders
of Union Electric's existing 7.69% Subordinated Capital Income Securities, (d)
restrictions and conditions in agreements or arrangements entered into by (1)
Electric Energy, Inc. regarding the payment of dividends or the making of other
distributions with respect to
43
shares of its capital stock or (2) Gateway Energy WGK Project, L.L.C., in each
case, without giving effect to any amendment or modification expanding the scope
of any such restriction or condition, and (e) customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided that such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder.
6.17. Leverage Ratio. The Borrower will not permit the ratio of (i)
Consolidated Indebtedness to (ii) Consolidated Total Capitalization of any of
the Borrower, CIPS, Union Electric, CILCO or, from and after the date that is
six (6) months after the IP Acquisition, IP to be greater than 0.60 to 1.00 at
any time.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of
the Borrower or any of its Subsidiaries to the Lenders or the Agent under or in
connection with this Agreement, any Credit Extension, or any certificate or
information delivered in connection with this Agreement or any other Loan
Document shall be false in any material respect on the date as of which made or
deemed made.
7.2. Nonpayment of (i) principal of any Loan when due, or (ii) interest
upon any Loan or any Facility Fee, Utilization Fee or other Obligations under
any of the Loan Documents within five (5) Business Days after such interest, fee
or other Obligation becomes due.
7.3. The breach by the Borrower of any of the terms or provisions of
Section 6.2, 6.3, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16 or 6.17.
7.4. The breach by the Borrower (other than a breach which constitutes a
Default under another Section of this Article VII) of any of the terms or
provisions of this Agreement which is not remedied within fifteen (15) days
after the earlier to occur of (i) written notice from the Agent or any Lender to
the Borrower or (ii) an Authorized Officer otherwise becoming aware of any such
breach.
7.5. Failure of the Borrower or any of its Subsidiaries (other than Project
Finance Subsidiaries) to pay when due any Material Indebtedness; or the default
by the Borrower or any of its Subsidiaries (other than Project Finance
Subsidiaries) in the performance (beyond the applicable grace period with
respect thereto, if any) of any term, provision or condition contained in any
Material Indebtedness Agreement, or any other event shall occur or condition
exist (except for, from and after the date of the IP Acquisition, a "Triggering
Event" under IP's 11 1/2% Mortgage Bonds due 2010 which does not also cause an
event of default thereunder), the effect of which default, event or condition is
to cause, or to permit the holder(s) of such Material Indebtedness or the
lender(s) under any Material Indebtedness Agreement to cause, such Material
Indebtedness to become due prior to its stated maturity or any commitment to
lend under any Material Indebtedness Agreement to be terminated prior to its
stated expiration date; or any Material Indebtedness of the Borrower or any of
its Subsidiaries (other than Project
44
Finance Subsidiaries) shall be declared to be due and payable or required to be
prepaid or repurchased (other than by a regularly scheduled payment) prior to
the stated maturity thereof (except, from and after the date of the IP
Acquisition, in the case of or related to a "Triggering Event" under IP's 11
1/2% Mortgage Bonds due 2010 which does not also cause an event of default
thereunder); or the Borrower or any of its Subsidiaries (other than Project
Finance Subsidiaries) shall not pay, or admit in writing its inability to pay,
its debts generally as they become due; provided that no Default shall occur
under this Section 7.5 as a result of (i) any notice of voluntary prepayment
delivered by the Borrower or any Subsidiary with respect to any Indebtedness, or
(ii) any voluntary sale of assets by the Borrower or any Subsidiary permitted
hereunder as a result of which any Indebtedness secured by such assets is
required to be prepaid.
7.6. The Borrower or any of its Subsidiaries (other than Project Finance
Subsidiaries) shall (i) have an order for relief entered with respect to it
under the Federal bankruptcy laws as now or hereafter in effect, (ii) make an
assignment for the benefit of creditors, (iii) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any Substantial Portion of its
Property, (iv) institute any proceeding seeking an order for relief under the
Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate
it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate or
partnership action to authorize or effect any of the foregoing actions set forth
in this Section 7.6, (vi) fail to contest in good faith any appointment or
proceeding described in Section 7.7, or (vii) become unable, admit in writing
its inability or fail generally to pay its debts as they become due.
7.7. Without the application, approval or consent of the Borrower or any of
its Subsidiaries (other than Project Finance Subsidiaries), a receiver, trustee,
examiner, liquidator or similar official shall be appointed for the Borrower or
any of its Subsidiaries or any Substantial Portion of its Property, or a
proceeding described in Section 7.6(iv) shall be instituted against the Borrower
or any of its Subsidiaries and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of 60 consecutive
days.
7.8. Any court, government or governmental agency shall condemn, seize or
otherwise appropriate, or take custody or control of, all or any portion of the
Property of the Borrower and its Subsidiaries (other than Project Finance
Subsidiaries) which, when taken together with all other Property of the Borrower
and its Subsidiaries so condemned, seized, appropriated, or taken custody or
control of, during the twelve-month period ending with the month in which any
such action occurs, constitutes a Substantial Portion.
7.9. The Borrower or any of its Subsidiaries (other than Project Finance
Subsidiaries) shall fail within 45 days to pay, bond or otherwise discharge one
or more (i) judgments or orders for the payment of money in excess of
$25,000,000 (or the equivalent thereof in currencies other than Dollars) in the
aggregate (net of any amount covered by insurance), or (ii) nonmonetary
judgments or orders which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, which judgment(s), in any such case,
is/are not stayed on appeal or otherwise being appropriately contested in good
faith.
45
7.10. An ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect.
7.11. Nonpayment by the Borrower or any Subsidiary (other than Project
Finance Subsidiary) of any Rate Management Obligation, in a notional amount of
$25,000,000 or more, when due or the breach by the Borrower or any Subsidiary
(other than Project Finance Subsidiary) of any term, provision or condition
contained in any Rate Management Transaction or any transaction of the type
described in the definition of "Rate Management Transactions," whether or not
any Lender or Affiliate of a Lender is a party thereto.
7.12. Any Change in Control shall occur.
7.13. The Borrower or any of its Subsidiaries shall (i) be the subject of
any proceeding or investigation pertaining to the release by the Borrower, any
of its Subsidiaries or any other Person of any toxic or hazardous waste or
substance into the environment, or (ii) violate any Environmental Law, which, in
the case of an event described in clause (i) or clause (ii), has resulted in
liability to the Borrower or any of its Subsidiaries in an amount equal to
$50,000,000 or more, which liability is not paid, bonded or otherwise discharged
within 45 days or which is not stayed on appeal and being appropriately
contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Loan Document.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. If any Default described in Section 7.6 or 7.7 occurs
with respect to the Borrower, the obligations of the Lenders to make Loans
hereunder shall automatically terminate and the Obligations shall immediately
become due and payable without any election or action on the part of the Agent
or any Lender. If any other Default occurs, the Required Lenders (or the Agent
with the consent of the Required Lenders) may terminate or suspend the
obligations of the Lenders to make Loans hereunder, or declare the Obligations
to be due and payable, or both, whereupon the Obligations shall become
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which the Borrower hereby expressly waives.
If, after acceleration of the maturity of the Obligations or termination of
the obligations of the Lenders to make Loans hereunder as a result of any
Default (other than any Default as described in Section 7.6 or 7.7 with respect
to the Borrower) and before any judgment or decree for the payment of the
Obligations due shall have been obtained or entered, the Required Lenders (in
their sole discretion) shall so direct, the Agent shall, by notice to the
Borrower, rescind and annul such acceleration and/or termination.
8.2. Amendments. Subject to the provisions of this Section 8.2, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to
46
the Loan Documents or changing in any manner the rights of the Lenders or the
Borrower hereunder or thereunder or waiving any Default hereunder or thereunder;
provided, however, that no such supplemental agreement shall, without the
consent of all of the Lenders:
8.2.1 Extend the final maturity of any Loan or postpone any payment of
principal of any Loan or forgive all or any portion of the principal amount
thereof, or reduce the rate or extend the time of payment of interest or
fees thereon (other than (i) a waiver of the application of the default
rate of interest pursuant to Section 2.13 hereof and (ii) extensions of the
Facility Termination Date pursuant to Section 2.22).
8.2.2 Waive any condition set forth in Section 4.2, reduce the
percentage specified in the definition of Required Lenders or any other
percentage of Lenders specified to be the applicable percentage in this
Agreement to act on specified matters or amend the definition of "Pro Rata
Share".
8.2.3 Other than as expressly permitted by the terms of Section 2.22,
extend the Facility Termination Date, or reduce the amount or extend the
payment date for, the mandatory payments required under Section 2.2, or
increase the amount of the Commitment of any Lender hereunder, or permit
the Borrower to assign its rights or obligations under this Agreement or
change Section 2.14 or 2.7.3 in a manner that would alter the pro rata
sharing of payments or reduction of commitments required thereby.
8.2.4 Amend this Section 8.2.
No amendment of any provision of this Agreement relating to the Agent or the
Swingline Lender shall be effective without the written consent of the Agent or
the Swingline Lender, as the case may be. The Agent may waive payment of the fee
required under Section 12.3.3 without obtaining the consent of any other party
to this Agreement. Notwithstanding the foregoing, any provision of this
Agreement may be amended by an agreement in writing entered into by the
Borrower, the Required Lenders and the Agent if (i) by the terms of such
agreement any remaining Commitment of each Lender not consenting to the
amendment provided for therein shall terminate upon the effectiveness of such
amendment and (ii) at the time such amendment becomes effective, each Lender not
consenting thereto receives payment in full of the principal of and interest
accrued on each Advance made by it and all other amounts owing to it or accrued
for its account under this Agreement.
8.3. Preservation of Rights. No delay or omission of the Lenders or the
Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or an acquiescence therein, and the
making of a Credit Extension notwithstanding the existence of a Default or
Unmatured Default or the inability of the Borrower to satisfy the conditions
precedent to such Credit Extension shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by, or by the Agent with the consent of, the requisite number of Lenders
required pursuant to Section 8.2, and then only to the extent in such writing
specifically set forth. All
47
remedies contained in the Loan Documents or by law afforded shall be cumulative
and all shall be available to the Agent and the Lenders until all of the
Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties of the
Borrower contained in this Agreement shall survive the making of the Credit
Extensions herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3. Headings. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
9.4. Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Agent and the Lenders and supersede all
prior agreements and understandings among the Borrower, the Agent and the
Lenders relating to the subject matter thereof other than those contained in the
fee letter described in Section 10.13 which shall survive and remain in full
force and effect during the term of this Agreement.
9.5. Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns, provided, however, that the parties
hereto expressly agree that each Arranger shall enjoy the benefits of the
provisions of Sections 9.6, 9.10 and 10.11 to the extent specifically set forth
therein and shall have the right to enforce such provisions on its own behalf
and in its own name to the same extent as if it were a party to this Agreement.
9.6. Expenses; Indemnification. (i) The Borrower shall reimburse the Agent
and each Arranger for any reasonable costs, internal charges and out-of-pocket
expenses (including reasonable attorneys' and paralegals' fees and time charges
of attorneys for the Agent, which attorneys may be employees of the Agent and
expenses of and fees for other advisors and professionals engaged by the Agent
or such Arranger) paid or incurred by the Agent or such Arranger in connection
with the investigation, preparation, negotiation, documentation, execution,
delivery, syndication, distribution (including, without limitation, via the
internet), review, amendment, modification and administration of the Loan
Documents. The Borrower also agrees to reimburse the Agent, each Arranger and
the Lenders for any costs, internal charges and out-of-pocket expenses
(including attorneys' and paralegals' fees and time charges and expenses of
attorneys and paralegals for the Agent, such Arranger and the Lenders, which
48
attorneys and paralegals may be employees of the Agent, such Arranger or the
Lenders) paid or incurred by the Agent, such Arranger or any Lender in
connection with the collection and enforcement of the Loan Documents.
(ii) The Borrower hereby further agrees to indemnify the Agent, each
Arranger, each Lender, their respective affiliates, and each of their
directors, officers and employees against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor whether
or not the Agent, any Arranger, any Lender or any affiliate is a party
thereto, and all attorneys' and paralegals' fees, time charges and
expenses of attorneys and paralegals of the party seeking
indemnification, which attorneys and paralegals may or may not be
employees of such party seeking indemnification) which any of them may
pay or incur arising out of or relating to this Agreement, the other
Loan Documents, the transactions contemplated hereby or the direct or
indirect application or proposed application of the proceeds of any
Loan hereunder except to the extent that they have resulted, as
determined in a final non-appealable judgment by a court of competent
jurisdiction, from the gross negligence or willful misconduct of the
party seeking indemnification. The obligations of the Borrower under
this Section 9.6 shall survive the termination of this Agreement.
(iii)To the extent that the Borrower fails to pay any amount required to
be paid by it to the Agent, the Arrangers or the Swingline Lender
under paragraph (i) or (ii) of this Section, each Lender severally
agrees to pay to the Agent, the Arrangers or the Swingline Lender, as
the case may be, such Lender's Pro Rata Share (determined as of the
time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as
the case may be, was incurred by or asserted against the Agent, the
Arrangers or the Swingline Lender in its capacity as such.
9.7. Numbers of Documents. All statements, notices, closing documents, and
requests hereunder shall be furnished to the Agent with sufficient counterparts
so that the Agent may furnish one to each of the Lenders, to the extent that the
Agent deems necessary.
9.8. Accounting. Except as provided to the contrary herein, all accounting
terms used in the calculation of any financial covenant or test shall be
interpreted and all accounting determinations hereunder in the calculation of
any financial covenant or test shall be made in accordance with Agreement
Accounting Principles. If any changes in generally accepted accounting
principles are hereafter required or permitted and are adopted by the Borrower
or any of its Subsidiaries with the agreement of its independent certified
public accountants and such changes result in a change in the method of
calculation of any of the financial covenants, tests, restrictions or standards
herein or in the related definitions or terms used therein ("Accounting
Changes"), the parties hereto agree, at the Borrower's request, to enter into
negotiations, in good faith, in order to amend such provisions in a credit
neutral manner so as to reflect equitably such changes with the desired result
that the criteria for evaluating the Borrower's and its Subsidiaries' financial
condition shall be the same after such changes as if such changes had not
49
been made; provided, however, until such provisions are amended in a manner
reasonably satisfactory to the Agent and the Required Lenders, no Accounting
Change shall be given effect in such calculations. In the event such amendment
is entered into, all references in this Agreement to Agreement Accounting
Principles shall mean generally accepted accounting principles as of the date of
such amendment. Notwithstanding the foregoing, all financial statements to be
delivered by the Borrower pursuant to Section 6.1 shall be prepared in
accordance with generally accepted accounting principles in effect at such time.
9.9. Severability of Provisions. Any provision in any Loan Document that is
held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as
to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
9.10. Nonliability of Lenders. The relationship between the Borrower on the
one hand and the Lenders and the Agent on the other hand shall be solely that of
borrower and lender. Neither the Agent, any Arranger nor any Lender shall have
any fiduciary responsibilities to the Borrower. Neither the Agent, any Arranger
nor any Lender undertakes any responsibility to the Borrower to review or inform
the Borrower of any matter in connection with any phase of the Borrower's
business or operations. The Borrower agrees that neither the Agent, any Arranger
nor any Lender shall have liability to the Borrower (whether sounding in tort,
contract or otherwise) for losses suffered by the Borrower in connection with,
arising out of, or in any way related to, the transactions contemplated and the
relationship established by the Loan Documents, or any act, omission or event
occurring in connection therewith, unless it is determined in a final
non-appealable judgment by a court of competent jurisdiction that such losses
resulted from the gross negligence or willful misconduct of the party from which
recovery is sought. Neither the Borrower, the Agent, any Arranger nor any Lender
shall have any liability with respect to, and each of the Agent, each Arranger,
each Lender and the Borrower hereby waives, releases and agrees not to sue for,
any special, indirect, consequential or punitive damages suffered by it in
connection with, arising out of, or in any way related to the Loan Documents or
the transactions contemplated thereby.
9.11. Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to its Affiliates and to other Lenders and
their respective Affiliates, for use solely in connection with the transactions
contemplated hereby, (ii) to legal counsel, accountants, and other professional
advisors to such Lender or to a Transferee, in each case which have been
informed as to the confidential nature of such information, for use solely in
connection with the transactions contemplated hereby, (iii) to regulatory
officials having jurisdiction over it, (iv) to any Person as required by law,
regulation, or legal process, (v) to any Person in connection with any legal
proceeding to which such Lender is a party, (vi) to such Lender's direct or
indirect contractual counterparties in swap agreements or to legal counsel,
accountants and other professional advisors to such counterparties, in each case
which have been informed as to the confidential nature of such information,
(vii) permitted by Section 12.4 and (viii) to rating agencies if requested or
required by such agencies in connection with a rating relating to the Advances
hereunder.
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9.12. Lenders Not Utilizing Plan Assets. Each Lender and Designated Lender
represents and warrants that none of the consideration used by such Lender or
Designated Lender to make its Loans constitutes for any purpose of ERISA or
Section 4975 of the Code assets of any "plan" as defined in Section 3(3) of
ERISA or Section 4975 of the Code and the rights and interests of such Lender or
Designated Lender in and under the Loan Documents shall not constitute such
"plan assets" under ERISA.
9.13. Nonreliance. Each Lender hereby represents that it is not relying on
or looking to any margin stock (as defined in Regulation U) as collateral in the
extension or maintenance of the credit provided for herein.
9.14. Disclosure. The Borrower and each Lender hereby acknowledge and agree
that each Lender and its Affiliates from time to time may hold investments in,
make other loans to or have other relationships with the Borrower and its
Affiliates.
9.15. USA Patriot Act. Each Lender and each Issuing Bank hereby notifies
the Borrower that pursuant to the requirements of the USA Patriot Act, it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance
with its requirements.
ARTICLE X
THE AGENT
10.1. Appointment; Nature of Relationship. JPMCB is hereby appointed by
each of the Lenders as its contractual representative (herein referred to as the
"Agent") hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Agent to act as the contractual representative of
such Lender with the rights and duties expressly set forth herein and in the
other Loan Documents. The Agent agrees to act as such contractual representative
upon the express conditions contained in this Article X. Notwithstanding the use
of the defined term "Agent," it is expressly understood and agreed that the
Agent shall not have any fiduciary responsibilities to any Lender by reason of
this Agreement or any other Loan Document and that the Agent is merely acting as
the contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Agent (i) does not
hereby assume any fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of the term "secured party"
as defined in the New York Uniform Commercial Code and (iii) is acting as an
independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents. Each of the
Lenders hereby agrees to assert no claim against the Agent on any agency theory
or any other theory of liability for breach of fiduciary duty, all of which
claims each Lender hereby waives.
10.2. Powers. The Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The
Agent shall have no implied duties or
51
fiduciary duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Agent.
10.3. General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
to the extent such action or inaction is determined in a final, non-appealable
judgment by a court of competent jurisdiction to have arisen from the gross
negligence or willful misconduct of such Person.
10.4. No Responsibility for Loans, Recitals, etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into, or verify (a) any statement, warranty or
representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Agent; (d) the existence
or possible existence of any Default or Unmatured Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith; (f) the
value, sufficiency, creation, perfection or priority of any Lien in any
collateral security; or (g) the financial condition of the Borrower or any
guarantor of any of the Obligations or of any of the Borrower's or any such
guarantor's respective Subsidiaries. The Agent shall have no duty to disclose to
the Lenders information that is not required to be furnished by the Borrower to
the Agent at such time, but is voluntarily furnished by the Borrower to the
Agent (either in its capacity as Agent or in its individual capacity).
10.5. Action on Instructions of Lenders. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders (or all of the Lenders in the event that and to the extent that
this Agreement expressly requires such), and such instructions and any action
taken or failure to act pursuant thereto shall be binding on all of the Lenders.
The Lenders hereby acknowledge that the Agent shall be under no duty to take any
discretionary action permitted to be taken by it pursuant to the provisions of
this Agreement or any other Loan Document unless it shall be requested in
writing to do so by the Required Lenders (or all of the Lenders in the event
that and to the extent that this Agreement expressly requires such). The Agent
shall be fully justified in failing or refusing to take any action hereunder and
under any other Loan Document unless it shall first be indemnified to its
satisfaction in writing by the Lenders pro rata against any and all liability,
cost and expense that it may incur by reason of taking or continuing to take any
such action.
10.6. Employment of Agents and Counsel. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
52
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
10.7. Reliance on Documents; Counsel. The Agent shall be entitled to rely
upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
10.8. Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to the Lenders' Pro Rata
Shares of the Aggregate Commitment (or, if the Aggregate Commitment has been
terminated, of the Aggregate Outstanding Credit Exposure) (determined as of the
date of any such request by the Agent) (i) for any amounts not reimbursed by the
Borrower for which the Agent is entitled to reimbursement by the Borrower under
the Loan Documents, (ii) to the extent not paid by the Borrower, for any other
expenses incurred by the Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the Loan
Documents (including, without limitation, for any expenses incurred by the Agent
in connection with any dispute between the Agent and any Lender or between two
or more of the Lenders) and (iii) to the extent not paid by the Borrower, for
any liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever which
may be imposed on, incurred by or asserted against the Agent in any way relating
to or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby (including,
without limitation, for any such amounts incurred by or asserted against the
Agent in connection with any dispute between the Agent and any Lender or between
two or more of the Lenders), or the enforcement of any of the terms of the Loan
Documents or of any such other documents, provided that (i) no Lender shall be
liable for any of the foregoing to the extent any of the foregoing is found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Agent, (ii) any
indemnification required pursuant to Section 3.5(vii) shall, notwithstanding the
provisions of this Section 10.8, be paid by the relevant Lender in accordance
with the provisions thereof and (iii) the Agent shall reimburse the Lenders for
any amounts the Lenders have paid to the extent such amounts are subsequently
recovered from the Borrower. The obligations of the Lenders under this Section
10.8 shall survive payment of the Obligations and termination of this Agreement.
10.9. Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Unmatured Default hereunder unless
the Agent has received written notice from a Lender or the Borrower referring to
this Agreement describing such Default or Unmatured Default and stating that
such notice is a "notice of default". In the event that the Agent receives such
a notice, the Agent shall give prompt notice thereof to the Lenders.
10.10. Rights as a Lender. In the event the Agent is a Lender, the Agent
shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Credit Extensions as any Lender
and may exercise the same as though it were not the Agent, and the term "Lender"
or "Lenders" shall, at any time when the Agent is a Lender, unless the context
otherwise indicates, include the Agent in its individual capacity. The
53
Agent and its Affiliates may accept deposits from, lend money to, and generally
engage in any kind of trust, debt, equity or other transaction, in addition to
those contemplated by this Agreement or any other Loan Document, with the
Borrower or any of its Subsidiaries in which the Borrower or such Subsidiary is
not restricted hereby from engaging with any other Person. The Agent, in its
individual capacity, is not obligated to remain a Lender.
10.11. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, any Arranger or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, any Arranger 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 and the other Loan Documents.
10.12. Successor Agent. The Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower, such resignation to be effective
upon the appointment of a successor Agent or, if no successor Agent has been
appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. The Agent may be removed at any time with or without cause
by written notice received by the Agent from the Required Lenders, such removal
to be effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders, with the consent of the Borrower
(which consent shall not be unreasonably withheld or delayed; provided that such
consent shall not be required in the event and continuation of a Default), shall
have the right to appoint, on behalf of the Borrower and the Lenders, a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders or consented to by the Borrower within thirty days after the
resigning Agent's giving notice of its intention to resign, then the resigning
Agent may appoint, on behalf of the Borrower and the Lenders, a successor Agent.
Notwithstanding the previous sentence, the Agent may at any time without the
consent of the Borrower or any Lender, appoint any of its Affiliates which is a
commercial bank as a successor Agent hereunder. If the Agent has resigned or
been removed and no successor Agent has been appointed, the Lenders may perform
all the duties of the Agent hereunder and the Borrower shall make all payments
in respect of the Obligations to the applicable Lender and for all other
purposes shall deal directly with the Lenders. No successor Agent shall be
deemed to be appointed hereunder until such successor Agent has accepted the
appointment. Any such successor Agent shall be a commercial bank having capital
and retained earnings of at least $100,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the resigning or removed Agent. Upon the effectiveness of the
resignation or removal of the Agent, the resigning or removed Agent shall be
discharged from its duties and obligations hereunder and under the Loan
Documents. After the effectiveness of the resignation or removal of an Agent,
the provisions of this Article X shall continue in effect for the benefit of
such Agent in respect of any actions taken or omitted to be taken by it while it
was acting as the Agent hereunder and under the other Loan Documents. In the
event that there is a successor to the Agent by merger, or the Agent assigns its
duties and obligations to an Affiliate pursuant to this Section 10.12, then the
term "Prime Rate" as used in this Agreement shall mean the prime rate, base rate
or other analogous rate of the new Agent.
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10.13. Agent and Arranger Fees. The Borrower agrees to pay to the Agent and
each Arranger, for their respective accounts, the fees agreed to by the
Borrower, the Agent and the Arrangers pursuant to that certain letter agreement
dated June 12, 2003, or as otherwise agreed from time to time. The Borrower
further agrees to pay to the Agent and J.P. Morgan Securities Inc., as Arranger,
for their respective accounts, the fees agreed to by the Borrower pursuant to
that certain engagement letter dated August 17, 2004.
10.14. Delegation to Affiliates. The Borrower and the Lenders agree that
the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under Articles IX and X.
10.15. Syndication Agent and Documentation Agents. The Lender identified in
this Agreement as the "Syndication Agent" and the Lenders identified in this
Agreement as the "Documentation Agents" shall have no right, power, obligation,
liability, responsibility or duty under this Agreement other than those
applicable to all Lenders as such. Without limiting the foregoing, such Lenders
shall not have or be deemed to have a fiduciary relationship with any other
Lender. Each Lender hereby makes the same acknowledgements with respect to such
Lenders as it makes with respect to the Agent in Section 10.11.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender
(including the Swingline Lender) or any Affiliate of any Lender to or for the
credit or account of the Borrower may be offset and applied toward the payment
of the Obligations owing to such Lender, whether or not the Obligations, or any
part thereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Revolving Credit Exposure (other than payments
received pursuant to Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than
that received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a participation in the Aggregate Revolving Credit Exposure held by the
other Lenders so that after such purchase each Lender will hold its Pro Rata
Share of the Aggregate Revolving Credit Exposure. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their respective Pro Rata Shares of the
Aggregate Revolving Credit Exposure. In case any such payment is disturbed by
legal process, or otherwise, appropriate further adjustments shall be made.
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ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns; Designated Lenders.
12.1.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower,
the Agent and the Lenders and their respective successors and assigns
permitted hereby, except that (i) the Borrower shall not have the right to
assign its rights or obligations under the Loan Documents without the prior
written consent of each Lender, (ii) any assignment by any Lender must be
made in compliance with Section 12.3, and (iii) any transfer by
Participants must be made in compliance with Section 12.2. Any attempted
assignment or transfer by any party not made in compliance with this
Section 12.1 shall be null and void, unless such attempted assignment or
transfer is treated as a participation in accordance with Section 12.3.2.
The parties to this Agreement acknowledge that clause (ii) of this Section
12.1 relates only to absolute assignments and this Section 12.1 does not
prohibit assignments creating security interests, including, without
limitation, (x) any pledge or assignment by any Lender of all or any
portion of its rights under this Agreement and any Note to a Federal
Reserve Bank, (y) in the case of a Lender which is a Fund, any pledge or
assignment of all or any portion of its rights under this Agreement and any
Note to its trustee in support of its obligations to its trustee or (z) any
pledge or assignment by any Lender of all or any portion of its rights
under this Agreement and any Note to direct or indirect contractual
counterparties in swap agreements relating to the Loans; provided, however,
that no such pledge or assignment creating a security interest shall
release the transferor Lender from its obligations hereunder unless and
until the parties thereto have complied with the provisions of Section
12.3. The Agent may treat the Person which made any Loan or which holds any
Note as the owner thereof for all purposes hereof unless and until such
Person complies with Section 12.3; provided, however, that the Agent may in
its discretion (but shall not be required to) follow instructions from the
Person which made any Loan or which holds any Note to direct payments
relating to such Loan or Note to another Person. Any assignee of the rights
to any Loan or any Note agrees by acceptance of such assignment to be bound
by all the terms and provisions of the Loan Documents. Any request,
authority or consent of any Person, who at the time of making such request
or giving such authority or consent is the owner of the rights to any Loan
(whether or not a Note has been issued in evidence thereof), shall be
conclusive and binding on any subsequent holder or assignee of the rights
to such Loan.
12.1.2 Designated Lenders.
(i) Subject to the terms and conditions set forth in this Section 12.1.2,
any Lender may from time to time elect to designate an Eligible
Designee to provide all or any part of the Loans to be made by such
Lender pursuant to this Agreement; provided that the designation of an
Eligible Designee by any Lender for purposes of this Section 12.1.2
shall be subject to the approval of the Agent (which consent shall not
be unreasonably withheld or delayed). Upon the execution by the
parties
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to each such designation of an agreement in the form of Exhibit F
hereto (a "Designation Agreement") and the acceptance thereof by the
Agent, the Eligible Designee shall become a Designated Lender for
purposes of this Agreement. The Designating Lender shall thereafter
have the right to permit the Designated Lender to provide all or a
portion of the Loans to be made by the Designating Lender pursuant to
the terms of this Agreement and the making of the Loans or portion
thereof shall satisfy the obligations of the Designating Lender to the
same extent, and as if, such Loan was made by the Designating Lender.
As to any Loan made by it, each Designated Lender shall have all the
rights a Lender making such Loan would have under this Agreement and
otherwise; provided, (x) that all voting rights under this Agreement
shall be exercised solely by the Designating Lender, (y) each
Designating Lender shall remain solely responsible to the other
parties hereto for its obligations under this Agreement, including the
obligations of a Lender in respect of Loans made by its Designated
Lender and (z) no Designated Lender shall be entitled to reimbursement
under Article III hereof for any amount which would exceed the amount
that would have been payable by the Borrower to the Lender from which
the Designated Lender obtained any interests hereunder. No additional
Notes shall be required with respect to Loans provided by a Designated
Lender; provided, however, to the extent any Designated Lender shall
advance funds, the Designating Lender shall be deemed to hold the
Notes in its possession as an agent for such Designated Lender to the
extent of the Loan funded by such Designated Lender. Such Designating
Lender shall act as administrative agent for its Designated Lender and
give and receive notices and communications hereunder. Any payments
for the account of any Designated Lender shall be paid to its
Designating Lender as administrative agent for such Designated Lender
and neither the Borrower nor the Agent shall be responsible for any
Designating Lender's application of such payments. In addition, any
Designated Lender may (1) with notice to, but without the consent of
the Borrower or the Agent, assign all or portions of its interests in
any Loans to its Designating Lender or to any financial institution
consented to by the Agent providing liquidity and/or credit facilities
to or for the account of such Designated Lender and (2) subject to
advising any such Person that such information is to be treated as
confidential in accordance with Section 9.11, disclose on a
confidential basis any non-public information relating to its Loans to
any rating agency, commercial paper dealer or provider of any
guarantee, surety or credit or liquidity enhancement to such
Designated Lender.
(ii) Each party to this Agreement hereby agrees that it shall not institute
against, or join any other Person in instituting against, any
Designated Lender any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceedings under any
federal or state bankruptcy or similar law for one year and a day
after the payment in full of all outstanding senior indebtedness of
any Designated Lender; provided that the Designating Lender for each
Designated Lender hereby agrees to indemnify, save and hold harmless
each other party hereto for any loss, cost, damage and expense arising
out of its inability to institute any such proceeding against such
Designated Lender. This Section 12.1.2 shall survive the termination
of this Agreement.
57
12.2. Participations.
12.2.1 Permitted Participants; Effect. Any Lender may at any time sell
to one or more banks or other entities ("Participants") participating
interests in any Outstanding Credit Exposure of such Lender, any Note held
by such Lender, any Commitment of such Lender or any other interest of such
Lender under the Loan Documents. In the event of any such sale by a Lender
of participating interests to a Participant, such Lender's obligations
under the Loan Documents shall remain unchanged, such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, such Lender shall remain the owner of its Outstanding Credit
Exposure and the holder of any Note issued to it in evidence thereof for
all purposes under the Loan Documents, all amounts payable by the Borrower
under this Agreement shall be determined as if such Lender had not sold
such participating interests, and the Borrower and the Agent shall continue
to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents.
12.2.2 Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other than
any amendment, modification or waiver with respect to any Credit Extension
or Commitment in which such Participant has an interest which would require
consent of all of the Lenders pursuant to the terms of Section 8.2.
12.2.3 Benefit of Certain Provisions. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in Section
11.1 in respect of its participating interest in amounts owing under the
Loan Documents to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under the Loan Documents,
provided that each Lender shall retain the right of setoff provided in
Section 11.1 with respect to the amount of participating interests sold to
each Participant. The Lenders agree to share with each Participant, and
each Participant, by exercising the right of setoff provided in Section
11.1, agrees to share with each Lender, any amount received pursuant to the
exercise of its right of setoff, such amounts to be shared in accordance
with Section 11.2 as if each Participant were a Lender. The Borrower
further agrees that each Participant shall be entitled to the benefits of
Sections 3.1, 3.2, 3.4 and 3.5 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to Section 12.3,
provided that (i) a Participant shall not be entitled to receive any
greater payment under Section 3.1, 3.2 or 3.5 than the Lender who sold the
participating interest to such Participant would have received had it
retained such interest for its own account, unless the sale of such
interest to such Participant is made with the prior written consent of the
Borrower, and (ii) any Participant not incorporated under the laws of the
United States of America or any State thereof agrees to comply with the
provisions of Section 3.5 to the same extent as if it were a Lender.
12.3. Assignments.
12.3.1 Permitted Assignments. Any Lender may at any time assign to one
or more banks or other entities ("Purchasers") all or any part of its
rights and obligations under the Loan Documents. Such assignment shall be
evidenced by an agreement
58
substantially in the form of Exhibit C or in such other form as may be
agreed to by the parties thereto (each such agreement, an "Assignment
Agreement"). Each such assignment with respect to a Purchaser which is not
a Lender or an Affiliate of a Lender or an Approved Fund shall either be in
an amount equal to the entire applicable Commitment and Outstanding Credit
Exposure of the assigning Lender or (unless each of the Borrower and the
Agent otherwise consents) be in an aggregate amount not less than
$2,500,000. The amount of the assignment shall be based on the Commitment
or, if the Commitments have been terminated, the Outstanding Credit
Exposure subject to the assignment, determined as of the date of such
assignment or as of the "Trade Date," if the "Trade Date" is specified in
the Assignment Agreement. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement, except that this sentence shall not apply
to rights in respect of outstanding Competitive Loans.
12.3.2 Consents. The consent of the Borrower shall be required prior
to an assignment becoming effective unless the Purchaser is a Lender, an
Affiliate of a Lender or an Approved Fund, provided that the consent of the
Borrower shall not be required if (i) a Default has occurred and is
continuing or (ii) if such assignment is in connection with the physical
settlement of any Lender's obligations to direct or indirect contractual
counterparties in swap agreements relating to the Loans; provided, that the
assignment without the Borrower's consent pursuant to clause (ii) shall not
increase the Borrower's liability under Section 3.5. The consent of the
Agent (and, in the case of Swingline Loans, the Swingline Lender) shall be
required prior to an assignment becoming effective unless the Purchaser is
a Lender, an Affiliate of a Lender or an Approved Fund. Any consent
required under this Section 12.3.2 shall not be unreasonably withheld or
delayed.
12.3.3 Effect; Effective Date. Upon (i) delivery to the Agent of an
Assignment Agreement, together with any consents required by Sections
12.3.1 and 12.3.2, and (ii) payment of a $3,500 fee to the Agent for
processing such assignment (unless such fee is waived by the Agent or
unless such assignment is made to such assigning Lender's Affiliate), such
assignment shall become effective on the effective date specified in such
assignment. The Assignment Agreement shall contain a representation and
warranty by the Purchaser to the effect that none of the funds, money,
assets or other consideration used to make the purchase and assumption of
the Commitment and Outstanding Credit Exposure under the applicable
Assignment Agreement constitutes "plan assets" as defined under ERISA and
that the rights, benefits and interests of the Purchaser in and under the
Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser shall for all purposes be
a Lender party to this Agreement and any other Loan Document executed by or
on behalf of the Lenders and shall have all the rights, benefits and
obligations of a Lender under the Loan Documents, to the same extent as if
it were an original party thereto, and the transferor Lender shall be
released with respect to the Commitment and Outstanding Credit Exposure, if
any, assigned to such Purchaser without any further consent or action by
the Borrower, the Lenders or the Agent. In the case of an assignment
covering all of the assigning Lender's rights, benefits and obligations
under this Agreement, such Lender shall cease to be a Lender hereunder but
shall continue to be entitled to the benefits of, and subject to, those
provisions of this Agreement and the other Loan Documents which
59
survive payment of the Obligations and termination of the Loan Documents.
Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 12.3 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with Section 12.2. Upon the
consummation of any assignment to a Purchaser pursuant to this Section
12.3.3, the transferor Lender, the Agent and the Borrower shall, if the
transferor Lender or the Purchaser desires that its Loans be evidenced by
Notes, make appropriate arrangements so that, upon cancellation and
surrender to the Borrower of the Notes (if any) held by the transferor
Lender, new Notes or, as appropriate, replacement Notes are issued to such
transferor Lender, if applicable, and new Notes or, as appropriate,
replacement Notes, are issued to such Purchaser, in each case in principal
amounts reflecting their respective Commitments (or, if such Commitments
have been terminated, their respective Outstanding Credit Exposure), as
adjusted pursuant to such assignment.
12.3.4 Register. The Agent, acting solely for this purpose as an agent
of the Borrower (and the Borrower hereby designates the Agent to act in
such capacity), shall maintain at one of its offices in New York, New York
a copy of each Assignment and Assumption delivered to it and a register
(the "Register") for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of and interest on
the Loans owing to, each Lender pursuant to the terms hereof from time to
time and whether such Lender is an original Lender or assignee of another
Lender pursuant to an assignment under this Section 13.3. The entries in
the Register shall be conclusive, absent manifest error and the Borrower,
the Agent and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.
12.4. Dissemination of Information. The Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries; provided
that each Transferee and prospective Transferee agrees to be bound by Section
9.11 of this Agreement.
12.5. Tax Certifications. If any interest in any Loan Document is
transferred to any Transferee which is not incorporated under the laws of the
United States or any State thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to comply with
the provisions of Section 3.5(iv).
ARTICLE XIII
NOTICES
13.1. Notices.
60
(a) Except in the case of notices and other communications expressly
permitted to be given by telephone (and subject to paragraph (b) below), all
notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(i) if to the Borrower, to it at Ameren Corporation, 1901 Chouteau Avenue,
St. Louis, MO 63103, Attention of Jerre E. Birdsong, Vice President
and Treasurer (Telecopy No. (314) 554-3066);
(ii) if to the Agent, to JPMorgan Chase Bank, Loan and Agency Services
Group, 1111 Fannin, 10th Floor, Houston, TX 77002, Attention: Sylvia
Gutierrez (Telecopy No. (713) 427-6307), with a copy to JPMorgan Chase
Bank, 270 Park Avenue, New York, NY 10017, Attention of Michael J.
DeForge (Telecopy No. (212) 270-3098);
(iii)if to any other Lender, to it at its address (or telecopy number) set
forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Agent; provided that the foregoing shall not apply to notices
pursuant to Article II unless otherwise agreed by the Agent and the applicable
Lender. The Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it; provided that approval of such procedures
may be limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
13.2. Change of Address. The Borrower, the Agent and any Lender may each
change the address for service of notice upon it by a notice in writing to the
other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Borrower, the Agent and the Lenders
and each party has notified the Agent by facsimile transmission or telephone
that it has taken such action.
61
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, NEW YORK.
15.2 CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE
COURT SITTING IN NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER
IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER
AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW
YORK, NEW YORK.
15.3 WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH LENDER HEREBY
WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
[Signature Pages Follow]
62
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have executed
this Agreement as of the date first above written.
AMEREN CORPORATION,
by /s/ Jerre E. Birdsong
-------------------------------------
Name: Jerre E. Birdsong
Title: Vice President and Treasurer
JPMORGAN CHASE BANK, as Agent and
as a Lender,
by /s/ Michael J. DeForge
-------------------------------------
Name: Michael J. DeForge
Title: Vice President
SIGNATURE PAGE TO
AMEREN CORPORATION AMENDED AND RESTATED
THREE-YEAR REVOLVING CREDIT AGREEMENT
Name of Institution: Bank of America, N.A.
by /s/ Michelle A. Schoenfeld
---------------------------------
Name: Michelle A. Schoenfeld
Title: Principal
SIGNATURE PAGE TO
AMEREN CORPORATION AMENDED AND RESTATED
THREE-YEAR REVOLVING CREDIT AGREEMENT
Name of Institution: Barclays Bank PLC
by /s/ Sydney G. Dennis
---------------------------------
Name: Sydney G. Dennis
Title: Director
SIGNATURE PAGE TO
AMEREN CORPORATION AMENDED AND RESTATED
THREE-YEAR REVOLVING CREDIT AGREEMENT
Name of Institution: BNP Paribas
by /s/ Francis J. DeLaney
---------------------------------
Name: Francis J. DeLaney
Title: Managing Director
by /s/ Sean Finnegan
---------------------------------
Name: Sean Finnegan
Title: Vice President
SIGNATURE PAGE TO
AMEREN CORPORATION AMENDED AND RESTATED
THREE-YEAR REVOLVING CREDIT AGREEMENT
Name of Institution: Citibank, N.A.
by /s/ J. Nicholas McKee
---------------------------------
Name: J. Nicholas McKee
Title: Managing Director
SIGNATURE PAGE TO
AMEREN CORPORATION AMENDED AND RESTATED
THREE-YEAR REVOLVING CREDIT AGREEMENT
Name of Institution: Commerce Bank National Association
by /s/ Mary Ann Lemonds
---------------------------------
Name: Mary Ann Lemonds
Title: Vice President
SIGNATURE PAGE TO
AMEREN CORPORATION AMENDED AND RESTATED
THREE-YEAR REVOLVING CREDIT AGREEMENT
Name of Institution: Credit Suisse First Boston, acting
through its Cayman Islands Branch
by /s/ Sarah Wu
---------------------------------
Name: Sarah Wu
Title: Vice President
by /s/ Denise Alvarez
---------------------------------
Name: Denise Alvarez
Title: Associate
SIGNATURE PAGE TO
AMEREN CORPORATION AMENDED AND RESTATED
THREE-YEAR REVOLVING CREDIT AGREEMENT
Name of Institution: Deutsche Bank AG New York Branch
by /s/ Joel Makowsky
---------------------------------
Name: Joel Makowsky
Title: Director
by /s/ Oliver Riedinger
---------------------------------
Name: Oliver Riedinger
Title: Vice President
SIGNATURE PAGE TO
AMEREN CORPORATION AMENDED AND RESTATED
THREE-YEAR REVOLVING CREDIT AGREEMENT
Name of Institution: First Bank
by /s/ Keith M. Schmelder
---------------------------------
Name: Keith M. Schmelder
Title: Senior Vice President
SIGNATURE PAGE TO
AMEREN CORPORATION AMENDED AND RESTATED
THREE-YEAR REVOLVING CREDIT AGREEMENT
Name of Institution: Mellon Bank, N.A.
by /s/ Roger E. Howard
---------------------------------
Name: Roger E. Howard
Title: Vice President
SIGNATURE PAGE TO
AMEREN CORPORATION AMENDED AND RESTATED
THREE-YEAR REVOLVING CREDIT AGREEMENT
Name of Institution: The Bank of New York
by /s/ Nathan S. Howard
---------------------------------
Name: Nathan S. Howard
Title: Vice President
SIGNATURE PAGE TO
AMEREN CORPORATION AMENDED AND RESTATED
THREE-YEAR REVOLVING CREDIT AGREEMENT
Name of Institution: The Bank of Tokyo-Mitsubishi, Ltd.,
Chicago Branch
by /s/ Shinichiro Munechika
---------------------------------
Name: Shinichiro Munechika
Title: Deputy General Manager
SIGNATURE PAGE TO
AMEREN CORPORATION AMENDED AND RESTATED
THREE-YEAR REVOLVING CREDIT AGREEMENT
Name of Institution: The Northern Trust Company
by /s/ Kathleen D. Schurr
---------------------------------
Name: Kathleen D. Schurr
Title: Vice President
SIGNATURE PAGE TO
AMEREN CORPORATION AMENDED AND RESTATED
THREE-YEAR REVOLVING CREDIT AGREEMENT
Name of Institution: UMB Bank, National Association
by /s/ Cecil G. Wood
---------------------------------
Name: Cecil G. Wood
Title: Senior Vice President
SIGNATURE PAGE TO
AMEREN CORPORATION AMENDED AND RESTATED
THREE-YEAR REVOLVING CREDIT AGREEMENT
Name of Institution: U.S. Bank National Association
by /s/ John Holland
---------------------------------
Name: John Holland
Title: Sr. Vice President
SIGNATURE PAGE TO
AMEREN CORPORATION AMENDED AND RESTATED
THREE-YEAR REVOLVING CREDIT AGREEMENT
Name of Institution: Wachovia Bank, N.A.
by /s/ Yann Pirio
---------------------------------
Name: Yann Pirio
Title: Vice President
SIGNATURE PAGE TO
AMEREN CORPORATION AMENDED AND RESTATED
THREE-YEAR REVOLVING CREDIT AGREEMENT
Name of Institution: William Street Commitment Corporation
(Recourse only to assets of William Street
Commitment Corp.)
by /s/ Jennifer M. Hill
---------------------------------
Name: Jennifer M. Hill
Title: Chief Financial Officer
SIGNATURE PAGE TO
AMEREN CORPORATION AMENDED AND RESTATED
THREE-YEAR REVOLVING CREDIT AGREEMENT
COMMITMENT SCHEDULE
LENDER COMMITMENT
----------------------------------------------------------------------------
JPMorgan Chase Bank $17,500,000
Bank One, NA $17,500,000
Bank of Tokyo-Mitsubishi, Ltd., Chicago Branch $17,500,000
The Bank of New York $17,500,000
BNP Paribas $17,500,000
Barclays $17,000,000
Wachovia Bank, National Association $17,000,000
William Street Commitment Corporation $17,000,000
Citibank, N.A. $14,000,000
Credit Suisse First Boston acting through Cayman
Islands Branch $14,000,000
Bank of America, N.A. $14,000,000
Deutsche Bank $10,500,000
Mellon Bank, N.A. $10,500,000
U.S. Bank National Association $10,500,000
First Bank $6,500,000
Northern Trust $6,500,000
Commerce Bank $5,000,000
UMB Bank, National Association $5,000,000
AGGREGATE COMMITMENT $235,000,000
1
PRICING SCHEDULE
=====================================================================================================================
APPLICABLE LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V LEVEL VI
MARGIN STATUS STATUS STATUS STATUS STATUS STATUS
- ---------------------------------------------------------------------------------------------------------------------
Eurodollar Rate 0.45% 0.625% 0.85% 0.95% 1.00% 1.35%
- ---------------------------------------------------------------------------------------------------------------------
Floating Rate 0.0% 0.0% 0.0% 0.0% 0.0% 0.35%
=====================================================================================================================
=====================================================================================================================
APPLICABLE FEE RATE LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V LEVEL VI
STATUS STATUS STATUS STATUS STATUS STATUS
=====================================================================================================================
Facility Fee 0.10% 0.125% 0.15% 0.175% 0.25% 0.40%
- ---------------------------------------------------------------------------------------------------------------------
Utilization Fee 0.125% 0.125% 0.125% 0.125% 0.25% 0.25%
(when usage
exceeds 33 1/3%)
=====================================================================================================================
For the purposes of this Schedule, the following terms have the following
meanings, subject to the final paragraph of this Schedule:
"Level I Status" exists at any date if, on such date, the Borrower's
Moody's Rating is A2 or better or the Borrower's S&P Rating is A or better.
"Level II Status" exists at any date if, on such date, (i) the Borrower has
not qualified for Level I Status and (ii) the Borrower's Moody's Rating is A3 or
better or the Borrower's S&P Rating is A- or better.
"Level III Status" exists at any date if, on such date, (i) the Borrower
has not qualified for Level I Status or Level II Status and (ii) the Borrower's
Moody's Rating is Baa1 or better or the Borrower's S&P Rating is BBB+ or better.
"Level IV Status" exists at any date if, on such date, (i) the Borrower has
not qualified for Level I Status, Level II Status or Level III Status and (ii)
the Borrower's Moody's Rating is Baa2 or better or the Borrower's S&P Rating is
BBB or better.
"Level V Status" exists at any date if, on such date, (i) the Borrower has
not qualified for Level I Status, Level II Status, Level III Status or Level IV
Status and (ii) the Borrower's Moody's Rating is Baa3 or better or the
Borrower's S&P Rating is BBB- or better.
"Level VI Status" exists at any date if, on such date, the Borrower has not
qualified for Level I Status, Level II Status, Level III Status, Level IV Status
or Level V Status.
"Moody's Rating" means, at any time, the rating issued by Moody's and then
in effect with respect to the Borrower's senior unsecured long-term debt
securities without third-party credit enhancement.
1
"S&P Rating" means, at any time, the rating issued by S&P and then in
effect with respect to the Borrower's senior unsecured long-term debt securities
without third-party credit enhancement.
"Status" means either Level I Status, Level II Status, Level III Status,
Level IV Status, Level V Status or Level VI Status.
The Applicable Margin and Applicable Fee Rate shall be determined in
accordance with the foregoing table based on the Borrower's Status as determined
from its then-current Moody's and S&P Ratings. The credit rating in effect on
any date for the purposes of this Schedule is that in effect at the close of
business on such date. If at any time the Borrower has no Moody's Rating or no
S&P Rating, Level VI Status shall exist.
If the Borrower is split-rated and the ratings differential is one level,
then each rating agency will be deemed to have a rating in the higher level. If
the Borrower is split-rated and the ratings differential is two levels or more,
then each rating agency will be deemed to have a rating one level above the
lower rating, unless either rating is below BB+ or unrated (in the case of S&P)
or below Ba1 or unrated (in the case of Moody's), in which case each rating
agency will be deemed to have a rating in the lower level.
2
SCHEDULE 1
SUBSIDIARIES
(See Section 5.8)
Jurisdiction
of Percent
Subsidiary Organization Owned By Ownership
------------------------------------------ ------------- ------------------------ ---------
1. Union Electric Company Missouri Ameren Corporation 100%
2. Central Illinois Public Service Illinois Ameren Corporation 100%
Company
3. CIPSCO Investment Company Illinois Ameren Corporation 100%
4. Ameren Energy, Inc. Missouri Ameren Corporation 100%
5. Ameren Services Company Missouri Ameren Corporation 100%
6. Ameren Development Company Missouri Ameren Corporation 100%
7. Ameren Energy Resources Company Illinois Ameren Corporation 100%
8. AmerenEnergy Medina Valley Cogen Illinois Ameren Energy 100%
(No. 4), L.L.C. Resources Company
9. AmerenEnergy Medina Valley Cogen Illinois Ameren Energy 100%
(No. 2), L.L.C. Resources Company
10. AmerenEnergy Medina Operations, Illinois Ameren Energy 100%
L.L.C. Resources Company
11. AmerenEnergy Medina Valley Cogen, Illinois Ameren Energy 100%
L.L.C. Resources Company
12. Electric Energy, Inc. Illinois Union Electric 40%
Company
Ameren Energy 20%
Resources Company
a. Joppa & Eastern Railroad Company Illinois Electric Energy, Inc. 100%
b. Met-South, Inc. Illinois Electric Energy, Inc. 100%
c. Midwest Electric Power, Inc. Illinois Electric Energy, Inc. 100%
d. Southern Materials Transfer, Inc. Illinois Electric Energy, Inc. 100%
e. Massac Enterprises, LLC Illinois Electric Energy, Inc. 100%
13. Union Electric Development Missouri Union Electric 100%
Corporation Company
1
14. Illinois Materials Supply Co. Illinois Ameren Energy 100%
Resources Company
15. Ameren Energy Marketing Company Illinois Ameren Energy 100%
Resources Company
16. Ameren Energy Development Illinois Ameren Energy 100%
Company Resources Company
17. Ameren Energy Generating Company Illinois Ameren Energy 100%
Development
Company
18. Ameren Energy Fuels and Services Illinois Ameren Energy 100%
Company Resources Company
19. Ameren Energy Communications, Inc. Missouri Ameren 100%
Development
Company
20. Ameren ERC, Inc. Missouri Ameren 100%
Development
Company
21. Missouri Central Railroad Company Delaware Ameren ERC, Inc. 100%
22. Gateway Energy Systems, L.C. Missouri Ameren ERC, Inc. 89.1%
23. Gateway Energy WGK Project, L.L.C. Illinois Ameren ERC, Inc. 89.1%
24. CIPS Energy, Inc. Illinois Central Illinois
Public Service
Company
25. CIPSCO Venture Company Illinois Central Illinois 100%
Public Service
Company
26. CIPSCO Securities Company Illinois CIPSCO Investment 100%
Company
27. CIPSCO Leasing Company Illinois CIPSCO Investment 100%
Company
28. CIPSCO Energy Company Illinois CIPSCO Investment 100%
Company
29. CLC Aircraft Leasing Co. Illinois CIPSCO Leasing 100%
Company
30. CLC Leasing Co. A Illinois CIPSCO Leasing 100%
Company
31. CEC-ACLP-Co. Illinois CIPSCO Energy 100%
Company
2
32. Cowboy Railroad Development Arkansas Ameren Energy 70.97%
Company Fuels and Services
Company
33. AFS Development Company, LLC Illinois Ameren Energy 100%
Fuels and Services
Company
34. CILCORP Inc. Illinois Ameren Corporation 100%
35. Central Illinois Light Company Illinois CILCORP Inc. 100%
36. CILCO Exploration and Development Illinois Central Illinois Light 100%
Co. Company
37. AmerenEnergy Resources Generating Illinois Central Illinois Light 100%
Company Company
38. CILCO Energy Corporation Illinois Central Illinois Light 100%
Company
39. CILCORP Investment Management Illinois CILCORP Inc. 100%
Inc.
40. CIM Air Leasing Inc. Delaware CILCORP 100%
Investment
Management Inc.
41. CIM Energy Investment Inc. Illinois CILCORP 100%
Investment
Management Inc.
42. CIM Leasing Inc. Delaware CILCORP 100%
Investment
Management Inc.
43. CILCORP Lease Management Inc. Delaware CILCORP 100%
Investment
Management Inc.
44. CLM Inc., IV Delaware CILCORP Lease 100%
Management Inc.
45. CLM Inc. - VII Delaware CILCORP Lease 100%
Management Inc.
46. CLM Inc. - VIII Delaware CILCORP Lease 100%
Management Inc.
47. CLM X, Inc. Delaware CILCORP Lease 100%
Management Inc.
48. CLM Inc., VI Delaware CLM X, Inc. 100%
49. CLM XI, Inc. Delaware CLM X, Inc. 100%
3
50. CLM XII, Inc. Delaware CILCORP Lease 100%
Management Inc.
51. QST Enterprises Inc. Illinois CILCORP Inc. 100%
52. QST Energy Inc. Illinois QST Enterprises Inc. 100%
53. QST Energy Trading Inc. Illinois QST Energy Inc. 100%
54. CILCORP Infraservices Inc. Illinois QST Enterprises Inc. 100%
55. QST Inc. Illinois QST Enterprises Inc. 100%
56. ESE Land Corporation Illinois QST Enterprises Inc. 100%
57. Savannah Resources Corp. California ESE Land 100%
Corporation
58. ESE Placentia Development Illinois ESE Land 100%
Corporation Corporation
59. CILCORP Venture Inc. Illinois CILCORP Inc. 100%
60. CILCORP Energy Services Inc. Illinois CILCORP Venture 100%
Inc.
61. Agricultural Research & Development Illinois CILCORP Venture 80%
Corp. Inc.
4
SCHEDULE 2
LIENS
(See Section 6.13)
None.
1
SCHEDULE 3
EXISTING RESTRICTIONS
(See Section 6.16)
Following are the agreements or other arrangements existing as of the
effective date of the Amended and Restated Three-Year Revolving Credit Agreement
dated as of September 21, 2004 (the "Agreement"), among the Borrower, the
lending institutions identified therein as Lenders and JPMorgan Chase Bank, as
Administrative Agent and provisions, to the knowledge of the Borrower, that will
result from the IP Acquisition, that prohibit, restrict or impose any condition
upon the ability of any Subsidiary (other than a Project Finance Subsidiary) to
pay dividends or make any other distribution on its common stock; to pay any
Indebtedness or other obligation owed to the Borrower or any other Subsidiary;
or to make loans or advances or other Investments in the Borrower or any other
Subsidiary. The following list does not include restrictions and conditions
imposed by law or by the above-referenced Agreement. Terms defined in the
above-referenced Agreement are used herein with the same meanings.
Union Electric
- --------------
Union Electric Subordinated Deferrable Interest Debentures 7.69% Series A due
2036: Dividend Restriction. If Union Electric exercises its right to extend the
interest payment period on the debentures, Union Electric may not, during any
such extension period, declare or pay any dividend on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital stock
or make any guarantee payments with respect to the foregoing.
CIPS
- ----
CIPS Restated Articles of Incorporation: Dividend Restriction. So long as any
shares of the Cumulative Preferred Stock of CIPS are outstanding, dividends on
CIPS' common stock are restricted at any time when the ratio of common stock
equity to total capitalization is not in excess of 25 percent.
CIPS Indenture of Mortgage dated October 1, 1941, as supplemented and amended:
Dividend Restriction. So long as any of the present First Mortgage Bonds are
outstanding, no dividends may be declared or paid on CIPS' common stock, unless
during the period from December 31, 1940 to the date of payment of such
dividends, the amounts expended by CIPS for maintenance and repairs, plus the
amounts provided for depreciation of the mortgaged properties, plus the
accumulations to earned surplus shall be at least equal to the amount required
to be expended by CIPS during such period for the purposes specified in Section
1 of Article VII of this indenture.
Ameren Energy Generating Company ("AEGC")
- -----------------------------------------
AEGC Indenture dated November 1, 2000, as supplemented: Restricted/Conditional
Payments. So long as any senior notes are outstanding, (a) if AEGC's Senior Debt
Service Coverage Ratio calculated on a Pro-Forma Basis (both as defined in
Article I of this indenture) is below 1.75 to 1.0 for the most recently ended
four fiscal quarters prior to the date of measurement or, based on projections
prepared by AEGC, below 1.75 to 1.0 (or 1.50 to 1.0 under circumstances
described
1
in Section 3.11(b) of this indenture) for any of the succeeding four six-month
periods from the month including the date of measurement, AEGC may not (i) pay
dividends on or redeem or repurchase its capital stock or (ii) make payments of
principal or interest on any subordinated indebtedness AEGC has issued except
for AEGC's $552 million promissory note with CIPS dated May 1, 2000 unless any
such redemption or repurchase of capital stock or subordinated indebtedness is
paid from proceeds received from the concurrent issuance of capital stock or
other subordinated indebtedness, and (b) AEGC may not make any principal payment
on the $552 million promissory note with CIPS other than the final payment due
upon maturity if AEGC does not have sufficient Available Cash (as defined in
Article I of this indenture) to do so. There are no restrictions or conditions
in the Indenture limiting AEGC's ability to make repayments of borrowings under,
or investments in, the Borrower's Non-utility Money Pool Agreement.
CILCORP
- -------
CILCORP (as successor to Midwest Energy, Inc.) Indenture dated as of October 18,
1999, as supplemented and/or amended: Limitation on Distributions. CILCORP shall
not make or pay any dividend, distribution or payment (including by way of
redemption, repurchase, retirement, return or repayment) in respect of shares of
its capital stock to any of its shareholders unless there exists no event of
default under the indenture and no such event of default will result from the
making of such distribution, and either (a) at the time and as a result of
making such distribution CILCORP's leverage ratio does not exceed 0.67:1 and
CILCORP's interest coverage ratio is not less than 2.2:1, or (b) if CILCORP is
not in compliance with the ratios described in clause (a) above, its senior
long-term debt ratings are at least BB+ from S&P, Baa2 from Moody's and BBB from
Fitch, Inc.
CILCORP (as successor to Midwest Energy, Inc.) Indenture dated as of October 18,
1999, as supplemented and/or amended: Limitation on Intercompany Loans. CILCORP
shall not make any intercompany loan to AES or any of its affiliates (other than
CILCORP or any of its direct or indirect subsidiaries) unless there exists no
event of default under the indenture and no such event of default will result
from the making of such intercompany loan, and either (a) at the time and as a
result of making such intercompany loan CILCORP's leverage ratio does not exceed
0.67:1 and CILCORP's interest coverage ratio is not less than 2.2:1, or (b) if
CILCORP is not in compliance with the ratios described in clause (a) above, its
senior long-term debt ratings are at least BB+ from S&P, Baa2 from Moody's and
BBB from Fitch, Inc.
CILCORP Pledge Agreement dated as of October 18, 1999, as amended or
supplemented: Encumbrance on CILCO Common Dividends. Common stock of CILCO is
pledged as collateral to holders of CILCORP indebtedness. Also included as
collateral are all dividends, cash, instruments and other property and proceeds
distributed in respect of such common stock excluding all cash dividends paid so
long as no event of default shall have occurred and be continuing. Any and all
(i) dividends and other distributions (other than cash dividends) received,
receivable or otherwise distributed in respect of, or in exchange for, any
collateral (including the CILCO common stock) and (ii) cash paid, payable or
otherwise distributed in redemption of, or in exchange for, any collateral,
shall be delivered to the collateral agent under this agreement to hold as
collateral.
2
CILCORP By-Laws: Limitation on Intercompany Loans. CILCORP may not make loans or
advances to its parent or any of its affiliates with the exception of
subsidiaries of CILCORP. CILCORP also may not acquire obligations or securities
of its parent or any of its affiliates with the exception of subsidiaries of
CILCORP.
CILCO
- -----
CILCO Articles of Incorporation: Dividend Restriction. No dividends shall be
paid on CILCO's common stock if, at the time of declaration, the balance of
retained earnings does not equal at least two times the annual dividend
requirement on all outstanding shares of preferred stock and amounts to be paid
or set aside for any sinking fund for the retirement of Class A Preferred Stock
of any series have not been paid or set aside.
To Result From the IP Acquisition. This description is based upon a due
diligence review performed by the Borrower in connection with the IP Acquisition
and is subject to revisions or additions identified prior to or after the
closing of such acquisition.
IP
- --
IP 11 1/2% Mortgage Bonds due 2010: Triggering Events. A "Triggering Event" will
occur under these bonds if IP declares or pays any dividends or makes any other
payment or distribution with respect to IP's common stock, or makes any loan to
or certain investments in any affiliate other than a subsidiary, unless the
aggregate amount of such payments, along with other restricted payments defined
in the related financing documents, do not exceed $5 million in the aggregate,
or unless a) no default would occur as the result of making such payment, b) at
the time of, and after giving effect to such payment, IP would be able to incur
additional indebtedness pursuant to a fixed charge coverage ratio test set forth
in the related financing documents, and c) such payment, along with all other
such restricted payments made since the offering date of these bonds is less
than the sum of 50% of consolidated net income of IP since the offering of these
bonds plus net cash proceeds received by IP through equity infusions or other
permitted means. Upon the occurrence of a "Triggering Event," the holders of at
least 25% of these bonds will be able to require the redemption of these bonds
at a redemption price equal to 100% of the aggregate principal amount plus
accrued and unpaid interest. IP will not be subject to the "Triggering Events"
described above at any time that these bonds are rated investment grade by both
S&P and Moody's.
Illinois Power Securitization Limited Liability Company - as "Grantee" under
Illinois Power Special Purpose Trust $864,000,000 Illinois Power Special Purpose
Trust Transitional Funding Trust Notes, Series 1998-1: Limitation on
Intercompany Loans. Grantee may not make any loan, advance or certain other
investments to or in any other person.
Illinois Power Special Purpose Trust $864,000,000 Illinois Power Special Purpose
Trust Transitional Funding Trust Notes, Series 1998-1: Dividend Restriction. So
long as any Transitional Funding Trust Notes are outstanding, the Trust shall
not, directly or indirectly, (a) pay any dividend or make any distribution (by
reduction of capital or otherwise), whether in cash, property, securities or a
combination thereof, to any owner of a beneficial interest in the Trust or
otherwise with respect to any ownership or equity interest or similar security
in or of the Trust, (b) redeem, purchase, retire or otherwise acquire for value
any such ownership or equity interest or similar security or (c) set aside or
otherwise segregate any amounts for any such purpose; provided, however, that,
if no event of default shall have occurred and be continuing, the Trust may
make, or cause to be made, any such distributions to any owner of a beneficial
interest in the Trust or otherwise with respect to any ownership or equity
interest or similar security in or of the
3
Trust using funds distributed to the Trust under certain provisions of the
indenture relating to the Transitional Funding Trust Notes providing for payment
to the Trust of balance of Trust accounts after principal of and premium, if
any, and interest on all Transitional Funding Trust Notes of all series and a
number of other amounts have been paid, to the extent that such distributions
would not cause the book value of the remaining equity in the Trust to decline
below 0.5% of the original principal amount of all series of Transitional
Funding Trust Notes which remain outstanding.
Illinois Power Special Purpose Trust $864,000,000 Illinois Power Special Purpose
Trust Transitional Funding Trust Notes, Series 1998-1: Limitation on
Intercompany Loans. The Trust may not make any loan, advance or certain other
investments to or in any other person.
4
EXHIBIT A
FORM OF OPINION
July ___, 2003
To the Lenders and
JPMorgan Chase Bank, as
Administrative Agent
270 Park Avenue
New York, NY 10017
Dear Ladies and Gentlemen:
I am the Vice President Regulatory Policy, General Counsel and Secretary of
Ameren Corporation, a Missouri corporation (the "Borrower"). I, or lawyers under
my direction, have acted as counsel for the Borrower in connection with the
Three-Year Revolving Credit Agreement dated as of July 17, 2003, (the "Credit
Agreement"), among the Borrower, the lending institutions identified therein as
Lenders and JPMorgan Chase Bank, as Administrative Agent. Terms defined in the
Credit Agreement are used herein with the same meanings.
In rendering the opinion expressed below, I, or lawyers under my direction,
have examined originals or copies, certified or otherwise identified to my
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion.
In making the examinations described above, I have assumed without
independent investigation the capacity of natural persons (other than the office
held by each representative of the Borrower) as reflected adjacent to such
individual's signature on the Credit Agreement, the genuineness of all
signatures (other than those of representatives of the Borrower appearing on the
Credit Agreement), the authenticity of all documents furnished to me as
originals, the conformity to originals of all documents furnished to me as
certified or photostatic copies and the authenticity of the originals of such
documents. In addition, I have assumed without independent investigation that
(i) the Credit Agreement has been duly authorized, executed and delivered by the
Lenders and the Agent, and constitutes their valid, lawful and binding
obligation and agreement, and (ii) there is no separate agreement, undertaking,
or course of dealing modifying, varying or waiving any of the terms of the
Credit Agreement. As to matters of fact not independently established by me
relevant to the opinions set forth herein, I have relied without independent
investigation on the representations contained in the Credit Agreement and in
certificates of public officials and responsible representatives of the Borrower
furnished to me; provided, however, that I advise that in the course of my
representation of the Borrower, I obtained no information that leads me to
believe that any such representation or certificate is untrue or misleading in
any material respect.
1
Upon the basis of and subject to the foregoing, I am of the opinion that:
Each of the Borrower and its Subsidiaries is a corporation, partnership (in
the case of Subsidiaries only) or limited liability company duly and properly
incorporated or organized, as the case may be, validly existing and (to the
extent such concept applies to such entity) in good standing under the laws of
its jurisdiction of incorporation or organization and has all requisite
authority to conduct its business as presently conducted in each jurisdiction in
which its business is conducted.
The Borrower has the power and authority and legal right to execute and
deliver the Loan Documents and to perform its obligations thereunder. The
execution and delivery by the Borrower of the Loan Documents and the performance
of its obligations thereunder have been duly authorized by proper proceedings,
and the Loan Documents to which the Borrower is a party constitute legal, valid
and binding obligations of the Borrower enforceable against the Borrower in
accordance with their terms, except as enforceability may be limited by (i)
bankruptcy, insolvency, fraudulent conveyance, reorganization, or similar laws
relating to or affecting the enforcement of creditors' rights generally; (ii)
general equitable principles (whether considered in a proceeding in equity or at
law); and (iii) requirements of reasonableness, good faith and fair dealing.
Neither the execution and delivery by the Borrower of the Loan Documents,
nor the consummation of the transactions therein contemplated, nor compliance
with the provisions thereof will violate (i) any law, rule, regulation, order,
writ, judgment, injunction, decree or award binding on the Borrower or any of
its Subsidiaries, or (ii) the Borrower's or any Subsidiary's articles or
certificate of incorporation, partnership agreement, certificate of partnership,
articles or certificate of organization, by-laws, or operating agreement or
other management agreement, as the case may be, or (iii) the provisions of any
indenture, instrument or agreement to which the Borrower or any of its
Subsidiaries is a party or is subject, or by which it, or its Property, is
bound, or conflict with, or constitute a default under, or result in, or
require, the creation or imposition of any Lien in, of or on the Property of the
Borrower or a Subsidiary pursuant to the terms of, any such indenture,
instrument or agreement. No order, consent, adjudication, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, or other action in respect of any governmental or public body or
authority, or any subdivision thereof, which has not been obtained by the
Borrower or any of its Subsidiaries, is required to be obtained by the Borrower
or any of its Subsidiaries in connection with the execution and delivery of the
Loan Documents, the borrowings under the Credit Agreement, the payment and
performance by the Borrower of the Obligations or the legality, validity,
binding effect or enforceability of any of the Loan Documents.
Except for the Disclosed Matters, there is no litigation, arbitration,
governmental investigation, proceeding or inquiry currently existing, or, to the
best of my knowledge after due inquiry, pending or threatened against or
affecting the Borrower of any of its Subsidiaries, which, if determined
adversely to the Borrower or to its Subsidiaries, could reasonably be expected
to have a Material Adverse Effect or which seeks to prevent, enjoin or delay the
making of any Loans or would adversely effect the legality, validity or
2
enforceability of the Loan Documents or the ability of the Borrower to perform
the transactions contemplated therein.
Neither the Borrower nor any Subsidiary is an "investment company" or a
company "controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended.
The Borrower is a "holding company," as such term is defined in the Public
Utility Holding Company Act of 1935, as amended (the "Holding Company Act").
Pursuant to the Holding Company Act, the Securities and Exchange Commission
("SEC") has issued its order authorizing the incurrence by the Borrower of
short-term debt in the aggregate principal amount not exceeding $1,500,000,000
outstanding at any one time, subject to the condition, among others, that all
such short-term debt be issued on or before September 30, 2004, and mature no
later than 364 days thereafter. Such order of the SEC is in full force and
effect. Loans contemplated by the Credit Agreement are short-term debt within
the meaning of the aforesaid order of the SEC. In order for the Borrower to
borrow money under the Credit Agreement after September 30, 2004, or to have
outstanding more than $1,500,000,000 in principal amount of short-term debt
(including amounts incurred under the Credit Agreement), additional
authorization from SEC will be necessary. No other federal governmental
consents, approvals, authorizations, registrations, declarations or filings are
required in connection with the extensions of credit under the Credit Agreement
or the performance by the Borrower of its obligations under the Credit
Agreement.
In a properly presented case, a Missouri court or a federal court applying
Missouri choice of law rules should give effect to the choice of law provisions
of the Credit Agreement and should hold that the Credit Agreement is to be
governed by the laws of the State of New York rather than the laws of the State
of Missouri. In rendering the foregoing opinion, I note that by its terms the
Credit Agreement expressly selects New York law as the law governing its
interpretation and that the Credit Agreement was delivered to the Agent in New
York. The choice of law provisions of the Credit Agreement are not voidable
under the laws of the State of Missouri. Notwithstanding the foregoing, even if
a Missouri court or a federal court holds that the Credit Agreement is to be
governed by the laws of the State of Missouri, the Credit Agreement constitutes
a legal, valid and binding obligation of Borrower thereto, enforceable under
Missouri law (including usury provisions) against the Borrower in accordance
with its terms.
I express no opinion as to the compliance or noncompliance, or the effect
of the compliance or noncompliance, of any addressee with any state or federal
laws or regulations applicable to it by reason of its status as or affiliation
with a federally insured depository institution.
I am a member of the Bar of the State of Missouri and the foregoing opinion
is limited to the laws of the State of Missouri and the Federal laws of the
United States of America. I note that the Credit Agreement is governed by the
laws of the State of New York and, for purposes of the opinion expressed in
paragraph 2 above, I have assumed that the laws of the State of New York do not
differ from the laws of the State of
3
Missouri in any manner that would render such opinion incorrect. This opinion is
rendered solely to you in connection with the above matter. This opinion may not
be relied upon by you for any other purpose or relied upon by any other Person
(other than your successors and assigns as Lenders) without my prior written
consent. Notwithstanding anything in this opinion letter to the contrary, you
may disclose this opinion (i) to prospective successors and assigns of the
addressees hereof, (ii) to regulatory authorities having jurisdiction over any
of the addressees hereof or their successors and assigns, and (iii) pursuant to
valid legal process, in each case without my prior consent. This opinion is
delivered as of the date hereof and I undertake no, and disclaim any, obligation
to advise you of any change in matters of law or fact set forth herein or upon
which this opinion is based.
Very truly yours,
4
EXHIBIT B
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain
Three-Year Revolving Credit Agreement dated as of July 17, 2003 (as amended,
modified, renewed or extended from time to time, the "Agreement") among Ameren
Corporation (the "Borrower"), the lenders party thereto and JPMorgan Chase Bank,
as Agent for the Lenders. Unless otherwise defined herein, capitalized terms
used in this Compliance Certificate have the meanings ascribed thereto in the
Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected __________ of the Borrower;
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Borrower and its Subsidiaries during the accounting period
covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I have
no knowledge of, the existence of any condition or event which constitutes a
Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and computations
evidencing the Borrower's compliance with certain covenants of the Agreement as
of the end of the most recent fiscal quarter for which such financial data and
computations have been prepared.
Described below are the exceptions, if any, to paragraph 3 by listing, in
detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
1
______________________________________________________________________
______________________________________________________________________
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Certificate
in support hereof, are made and delivered this ____ day of __________, ___
____________________________
2
SCHEDULE I TO COMPLIANCE CERTIFICATE
Compliance as of _________, ____ with
Provisions of Section 6.17 of
the Agreement
LEVERAGE RATIO
Borrower:
Consolidated Indebtedness of the Borrower: $____________
Consolidated Total Capitalization of the Borrower: $____________
Borrower's Leverage Ratio (Ratio of 1 to 2): _____ to 1.00
1.
CIPS:
Consolidated Indebtedness of CIPS: $____________
Consolidated Total Capitalization of CIPS: $____________
CIPS' Leverage Ratio (Ratio of 1 to 2): _____ to 1.00
2.
Union Electric:
Consolidated Indebtedness of Union Electric: $____________
Consolidated Total Capitalization of Union Electric: $____________
Union Electric's Leverage Ratio (Ratio of 1 to 2): _____ to 1.00
3.
CILCO:
Consolidated Indebtedness of CILCO: $____________
Consolidated Total Capitalization of CILCO: $____________
CILCO's Leverage Ratio (Ratio of 1 to 2): _____ to 1.00
4.
1
EXHIBIT C
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption (the "Assignment and Assumption") is dated
as of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the "Assignor") and [Insert name of Assignee] (the
"Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (as amended, the
"Credit Agreement"), receipt of a copy of which is hereby acknowledged by the
Assignee. The Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Agent as contemplated below, the interest in and to all of the Assignor's
rights and obligations in its capacity as a Lender under the Credit Agreement
and any other documents or instruments delivered pursuant thereto that
represents the amount and percentage interest identified below of all of the
Assignor's outstanding rights and obligations under the respective facilities
identified below (including without limitation any letters of credit, guaranties
and swingline loans included in such facilities and, to the extent permitted to
be assigned under applicable law, all claims (including without limitation
contract claims, tort claims, malpractice claims, statutory claims and all other
claims at law or in equity), suits, causes of action and any other right of the
Assignor against any Person whether known or unknown arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby) (the
"Assigned Interest"). Such sale and assignment is without recourse to the
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
1
1. Assignor:
--------------------------------
2. Assignee: [and is an Affiliate/Approved
--------------------------------
Fund of [identify Lender]1
3. Borrower: Ameren Corporation
--------------------------------
4. Agent: JPMorgan Chase Bank , as the agent under the Credit
--------------------------------
Agreement.
5. Credit Agreement: The Three-Year Revolving Credit Agreement dated as of
July 17, 2003 among Ameren Corporation, the Lenders
party thereto, JPMorgan Chase Bank, as Agent, and the
other agents party thereto.
6. Assigned Interest:
- ------------------------------------------------------------------------------------------------------------
| Aggregate Amount of | Amount of | Percentage Assigned
| Commitment/Loans | Commitment/Loans | of
| for all Lenders* | Assigned* | Commitment/Loans<F2>
- ------------------------------------------------------------------------------------------------------------
| $ | $ | -------%
- ------------------------------------------------------------------------------------------------------------
| $ | $ | -------%
- ------------------------------------------------------------------------------------------------------------
| $ | $ | -------%
- ------------------------------------------------------------------------------------------------------------
7. Trade Date: <F3>
----------------------------------------
Effective Date: ____________, 20__ [TO BE INSERTED BY AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER BY THE AGENT.]
______________________________
<F1> Select as applicable.
<FN>
* Amount to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective Date.
<F2> Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder.
<F3> Insert if satisfaction of minimum amounts is to be determined as of the
Trade Date.
</FN>
2
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:________________________________
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:________________________________
Title:
[Consented to and]<F4> Accepted:
JPMORGAN CHASE BANK, as Agent
By:
Title:
[Consented to:]<F5>
AMEREN CORPORATION
By:
Title:
______________________
<FN>
<F4> To be added only if the consent of the Agent is required by the terms of
the Credit Agreement.
<F5> To be added only if the consent of the Borrower is required by the terms
of the Credit Agreement.
</FN>
3
ANNEX 1
TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby. Neither the Assignor nor any of its officers, directors,
employees, agents or attorneys shall be responsible for (i) any statements,
warranties or representations made in or in connection with the Credit Agreement
or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency, perfection, priority, collectibility,
or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other
Person obligated in respect of any Loan Document, (iv) the performance or
observance by the Borrower, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Loan Document, (v)
inspecting any of the property, books or records of the Borrower, or any
guarantor, or (vi) any mistake, error of judgment, or action taken or omitted to
be taken in connection with the Loans or the Loan Documents.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) from
and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest,
shall have the obligations of a Lender thereunder, (iii) agrees that its payment
instructions and notice instructions are as set forth in Schedule 1 to this
Assignment and Assumption, (iv) none of the funds, monies, assets or other
consideration being used to make the purchase and assumption hereunder are "plan
assets" as defined under ERISA and that its rights, benefits and interests in
and under the Loan Documents will not be "plan assets" under ERISA, (v) agrees
to indemnify and hold the Assignor harmless against all losses, costs and
expenses (including, without limitation, reasonable attorneys' fees) and
liabilities incurred by the Assignor in connection with or arising in any manner
from the Assignee's non-performance of the obligations assumed under this
Assignment and Assumption, (vi) it has received a copy of the Credit Agreement,
together with copies of financial statements and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision
independently and without reliance on the Agent or any other Lender, and (vii)
attached as Schedule 1 to this Assignment and Assumption is any documentation
required to be delivered by the Assignee with respect to its tax status pursuant
to the terms of the Credit Agreement, duly completed and executed by the
Assignee and (b) agrees that (i) it will, independently and without reliance on
the Agent, the Assignor or any other Lender,
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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, and (ii) 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.
2. Payments. The Assignee shall pay the Assignor, on the Effective
Date, the amount agreed to by the Assignor and the Assignee. From and after the
Effective Date, the Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignor for amounts which have accrued to but excluding the Effective Date
and to the Assignee for amounts which have accrued from and after the Effective
Date.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.
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ADMINISTRATIVE QUESTIONNAIRE
(Schedule to be supplied by Closing Unit or Trading Documentation Unit)
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US AND NON-US TAX INFORMATION REPORTING REQUIREMENTS
(Schedule to be supplied by Closing Unit or Trading Documentation Unit)
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EXHIBIT D
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To JPMorgan Chase Bank,
as Agent (the "Agent") under the Credit Agreement
Described Below.
Re: Three-Year Revolving Credit Agreement, dated July 17, 2003 (as the same may
be amended or modified, the "Credit Agreement"), among Ameren Corporation
(the "Borrower"), the Lenders named therein and the Agent. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned thereto in the Credit Agreement.
The Agent is specifically authorized and directed to act upon the following
standing money transfer instructions with respect to the proceeds of Advances or
other extensions of credit from time to time until receipt by the Agent of a
specific written revocation of such instructions by the Borrower, provided,
however, that the Agent may otherwise transfer funds as hereafter directed in
writing by the Borrower in accordance with Section 13.1 of the Credit Agreement
or based on any telephonic notice made in accordance with Section 2.16 of the
Credit Agreement.
Facility Identification Number(s)
----------------------------------------------
Customer/Account Name Ameren Corporation
---------------------------------------------------------
Transfer Funds To Bank of America, N.A. (Dallas, Texas)
-------------------------------------------------------------
ABA # 111000012
-------------------------------------------------------------
For Account No. 3750960963
---------------------------------------------------------------
Reference/Attention To Ameren Corporation General
--------------------------------------------------------
Authorized Officer (Customer Representative) Date
---------------------
- -------------------------------------------- --------------------------
(Please Print) Signature
Bank Officer Name Date
---------------------
- -------------------------------------------- --------------------------
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
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EXHIBIT E
NOTE
[Date]
AMEREN CORPORATION, a Missouri corporation (the "Borrower"), promises to
pay to the order of ____________________________________ (the "Lender") on the
Facility Termination Date __________ DOLLARS ($_____) or, if less, the aggregate
unpaid principal amount of all Loans made by the Lender to the Borrower pursuant
to Article II of the Agreement (as hereinafter defined), in immediately
available funds at the main office of JPMorgan Chase Bank in New York, New York,
as Agent, together with accrued but unpaid interest thereon. The Borrower shall
pay interest on the unpaid principal amount hereof at the rates and on the dates
set forth in the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Revolving Loan and the date and amount of each
principal payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to the
benefits of, the Three-Year Revolving Credit Agreement dated as of July 17, 2003
(which, as it may be amended or modified and in effect from time to time, is
herein called the "Agreement"), among the Borrower, the lenders party thereto,
including the Lender, and JPMorgan Chase Bank, as Agent, to which Agreement
reference is hereby made for a statement of the terms and conditions governing
this Note, including the terms and conditions under which this Note may be
prepaid or its maturity date accelerated. Capitalized terms used herein and not
otherwise defined herein are used with the meanings attributed to them in the
Agreement.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
AMEREN CORPORATION
By:
-----------------------------------------
Print Name:
---------------------------------
Title:
-------------------------------------
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SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF AMEREN CORPORATION,
DATED _____________,
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
- -------------------------------------------------------------------------------------------------------------------
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EXHIBIT F
FORM OF DESIGNATION AGREEMENT
Dated ____________, 20__
Reference is made to the Three-Year Revolving Credit Agreement dated
as of July 17, 2003 (as amended or otherwise modified from time to time, the
"Credit Agreement") among Ameren Corporation, a Missouri corporation (the
"Borrower"), the lenders from time to time party thereto (the "Lenders") and
JPMorgan Chase Bank (having its principal office in New York, NY), as Agent.
Terms defined in the Credit Agreement are used herein as therein defined.
___________ (the "Designating Lender"), ____________ (the "Designated
Lender"), and the Borrower agree as follows:
1. The Designating Lender hereby designates the Designated Lender, and the
Designated Lender hereby accepts such designation, as its Designated Lender
under the Credit Agreement.
2. The Designating Lender makes no representations 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.
3. The Designated Lender (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred
to in Article V and Article VI thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Designation Agreement; (ii) agrees that it
will, independently and without reliance upon the Agent, the Designating
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 any action it may be permitted to take
under the Credit Agreement; (iii) confirms that it is an Eligible Designee;
(iv) appoints and authorizes the Designating Lender as its administrative
agent and attorney-in-fact and grants the Designating Lender an irrevocable
power of attorney to receive payments made for the benefit of the
Designated Lender under the Credit Agreement and to deliver and receive all
communications and notices under the Credit Agreement, if any, that
Designated Lender is obligated to deliver or has the right to receive
thereunder; (v) acknowledges that it is subject to and bound by the
confidentiality provisions of the Credit Agreement (except as permitted
under Section 12.4 thereof); and (vi) acknowledges that the Designating
Lender retains the sole right and responsibility to vote under the Credit
Agreement, including, without limitation, the right to approve any
amendment, modification or waiver of any provision of the Credit Agreement,
and agrees that the Designated Lender shall be bound by all such
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votes, approvals, amendments, modifications and waivers and all other
agreements of the Designating Lender pursuant to or in connection with the
Credit Agreement.
4. Following the execution of this Designation Agreement by the Designating
Lender, the Designated Lender and the Borrower, it will be delivered to the
Agent for acceptance and recording by the Agent. The effective date of this
Designation Agreement shall be the date of acceptance thereof by the Agent,
unless otherwise specified on the signature page hereto (the "Effective
Date").
5. Upon such acceptance and recording by the Agent, as of the Effective Date
(a) the Designated Lender shall have the right to make Loans as a Lender
pursuant to Article II of the Credit Agreement and the rights of a Lender
related thereto and (b) the making of any such Loans by the Designated
Lender shall satisfy the obligations of the Designating Lender under the
Credit Agreement to the same extent, and as if, such Loans were made by the
Designating Lender.
6. Each party to this Designation Agreement hereby agrees that it shall not
institute against, or join any other Person in instituting against, any
Designated Lender any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceeding or other proceedings under any federal or state
bankruptcy or similar law for one year and a day after payment in full of
all outstanding senior indebtedness of any Designated Lender; provided that
the Designating Lender for each Designated Lender hereby agrees to
indemnify, save and hold harmless each other party hereto for any loss,
cost, damage and expense arising out of its inability to institute any such
proceeding against such Designated Lender. This Section 6 of the
Designation Agreement shall survive the termination of this Designation
Agreement and termination of the Credit Agreement.
7. This Designation Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York.
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IN WITNESS WHEREOF, the parties have caused this Designation Agreement
to be executed by their respective officers hereunto duly authorized, as of
the date first above written.
Effective Date<F6>:
[NAME OF DESIGNATING LENDER]
By: _____________________________
Name: ___________________________
Title: __________________________
[NAME OF DESIGNATED LENDER]
By: _____________________________
Name: ___________________________
Title: __________________________
AMEREN CORPORATION
By: _____________________________
Name: ___________________________
Title: __________________________
Accepted and Approved this
____ day of ________, ____
JPMORGAN CHASE BANK, as Agent
By: ______________________________
Title: ____________________________
___________________________________
<FN>
<F6> This date should be no earlier than the date of acceptance by the Agent.
</FN>
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