CREDIT AGREEMENT among VECTREN UTILITY HOLDINGS, INC., as Borrower, INDIANA GAS COMPANY, INC., as Guarantor, SOUTHERN INDIANA GAS AND ELECTRIC COMPANY, as Guarantor, VECTREN ENERGY DELIVERY OF OHIO, INC., as Guarantor, THE LENDERS SIGNATORY HERETO,...
Ex.
10.24
among
VECTREN
UTILITY HOLDINGS, INC.,
as
Borrower,
INDIANA
GAS COMPANY, INC.,
as
Guarantor,
SOUTHERN
INDIANA GAS AND ELECTRIC COMPANY,
as
Guarantor,
VECTREN
ENERGY DELIVERY OF OHIO, INC.,
as
Guarantor,
THE
LENDERS SIGNATORY HERETO,
MIZUHO
CORPORATE BANK, LTD.,
UNION
BANK OF CALIFORNIA, N.A. and
WACHOVIA
BANK, N.A.,
as
Co-Documentation Agents
LASALLE
BANK NATIONAL ASSOCIATION,
as
Syndication Agent
and
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent
Dated
as
of November 10, 2005
▇.▇.
▇▇▇▇▇▇ SECURITIES, INC.
and
LASALLE
BANK NATIONAL ASSOCIATION
JOINT
LEAD ARRANGERS AND BOOK RUNNERS
|
13285046
01789880
|
ARTICLE
IITHE
CREDITS12
2.1Commitments12
2.2Required
Payments; Clean-Down; Termination12
2.3Ratable
Loans12
2.4Types
of
Advances12
2.5Facility
Fee; Changes in Aggregate Commitment12
2.6Minimum
Amount of Each Advance13
2.7Optional
Principal Payments13
2.8Method
of
Selecting Types and Interest Periods for New Advances14
2.9Conversion
and Continuation of Outstanding Advances14
2.10Changes
in Interest Rate, etc15
2.11Rates
Applicable After Default15
2.12Method
of
Payment15
2.13Notes;
Telephonic Notices16
2.14Interest
Payment Dates; Interest and Fee Basis16
2.15Notification
of Advances, Interest Rates, Prepayments and Commitment Reductions16
2.16Lending
Installations17
2.17Non-Receipt
of Funds by the Administrative Agent17
2.18Use
of
Proceeds17
2.19Facility
LCs17
2.20Extension
of Facility Termination Date22
ARTICLE
IIIYIELD
PROTECTION; TAXES23
3.1Yield
Protection23
3.2Changes
in Capital Adequacy Regulations23
3.3Availability
of Types of Advances24
3.4Funding
Indemnification24
3.5Taxes24
3.6Lender
Statements; Survival of Indemnity26
3.7Replacement
of Lenders27
ARTICLE
IVCONDITIONS
PRECEDENT27
4.1Initial
Credit Extension27
4.2Each
Credit Extension28
ARTICLE
VREPRESENTATIONS
AND WARRANTIES29
5.1Existence
and Standing29
5.2Authorization
and Validity29
5.3No Conflict;
Government Consent29
5.4Financial
Statements29
5.5Material
Adverse Change30
5.6Taxes30
5.7Litigation
and Contingent Obligations30
5.8Subsidiaries30
5.9ERISA30
5.10Accuracy
of Information31
5.11Regulation
U31
5.12Material
Agreements31
5.13Compliance
With Laws31
5.14Ownership
of Properties31
5.15Plan
Assets; Prohibited Transactions31
5.16Environmental
Matters31
5.17Investment
Company Act32
5.18Insurance32
5.19Solvency32
5.20Public
Utility Holding Company Act32
5.21Existing
Credit Agreement33
5.22Reportable
Transaction33
ARTICLE
VICOVENANTS33
6.1Financial
Reporting33
6.2Use
of
Proceeds34
6.3Notice
of
Default34
6.4Conduct
of Business35
6.5Taxes35
6.6Insurance35
6.7Compliance
with Laws35
6.8Maintenance
of Properties35
6.9Inspection36
6.10Merger36
6.11Sale
of
Assets36
6.12Investments
and Acquisitions36
6.13Liens37
6.14Affiliates38
6.15Leverage
Ratio38
6.16Certain
Restrictions38
ARTICLE
VIIDEFAULTS39
ARTICLE
VIIIACCELERATION,
WAIVERS, AMENDMENTS AND REMEDIES41
8.1Acceleration;
Facility LC Collateral Account41
8.2Remedies
Not Exclusive42
8.3Amendments42
8.4Preservation
of Rights43
ARTICLE
IXGENERAL
PROVISIONS43
9.1Survival
of Representations43
9.2Governmental
Regulation43
9.3Headings43
9.4Entire
Agreement43
9.5Several
Obligations; Benefits of this Agreement43
9.6Expenses;
Indemnification44
9.7Numbers
of Documents44
9.8Accounting44
9.9Severability
of Provisions45
9.10Nonliability
of Lenders45
9.11Confidentiality45
9.12Nonreliance46
9.13Disclosure46
9.14USA
PATRIOT ACT NOTIFICATION46
ARTICLE
XTHE
ADMINISTRATIVE AGENT47
10.1Appointment;
Nature of Relationship47
10.2Powers47
10.3General
Immunity47
10.4No Responsibility
for Loans, Recitals, etc47
10.5Action
on
Instructions of Lenders48
10.6Employment
of Agents and Counsel48
10.7Reliance
on Documents; Counsel48
10.8Agent’s
Reimbursement and Indemnification48
10.9Notice
of
Default49
10.10Rights
as
a Lender49
10.11Lender
Credit Decision49
10.12Successor
Administrative Agent49
10.13Administrative
Agent’s and Arrangers’ Fees50
10.14Delegation
to Affiliates50
10.15Co-Agents,
Documentation Agent, Syndication Agent, etc50
ARTICLE
XISETOFF;
RATABLE PAYMENTS51
11.1Setoff51
11.2Ratable
Payments51
ARTICLE
XIIBENEFIT
OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS51
12.1Successors
and Assigns51
12.2Participations52
12.3Assignments53
12.4Dissemination
of Information54
12.5Tax
Treatment54
ARTICLE
XIIIGUARANTY54
13.1Guaranty54
13.2Waivers55
13.3Guaranty
Absolute55
13.4Acceleration56
13.5Marshaling;
Reinstatement56
13.6Delay
of
Subrogation56
ARTICLE
XIVNOTICES57
14.1Notices57
14.2Limited
Use of Electronic Mail57
14.3Effectiveness
of Facsimile Documents and Signatures57
ARTICLE
XVCOUNTERPARTS57
ARTICLE
XVICHOICE
OF
LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL58
16.1CHOICE
OF
LAW58
16.2CONSENT
TO JURISDICTION58
16.3WAIVER
OF
JURY TRIAL58
This
Agreement, dated as of November 10, 2005, is among VECTREN UTILITY HOLDINGS,
INC., as Borrower, INDIANA GAS COMPANY, INC., as Guarantor, SOUTHERN INDIANA
GAS
AND ELECTRIC COMPANY, as Guarantor, VECTREN ENERGY DELIVERY OF OHIO, INC.,
as
Guarantor, the Lenders party hereto, LASALLE BANK NATIONAL ASSOCIATION, as
an LC
Issuer and as Syndication Agent, and JPMORGAN CHASE BANK, N.A., as an LC Issuer
and as Administrative Agent. The parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
As
used
in this Agreement:
“Acquisition”
means
any transaction, or any series of related transactions, consummated on or after
the date of this Agreement, 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 or voting power) of the outstanding
ownership interests of a partnership or limited liability company.
“Additional
Lender”
-
see
Section
2.5.3.
“Administrative
Agent”
means
JPMCB in its capacity as contractual representative of the Lenders pursuant
to
Article
X,
and not
in its individual capacity as a Lender, and any successor Administrative Agent
appointed pursuant to Article
X.
“Administrative
Questionnaire”
means
an administrative questionnaire, substantially in the form supplied by the
Administrative Agent, completed by a Lender and furnished to the Administrative
Agent in connection with this Agreement.
“Advance”
means
a
borrowing hereunder (or conversion or continuation thereof) consisting of the
aggregate amount of the several Loans made on the same Borrowing Date (or date
of conversion or continuation) by the Lenders to the Borrower of the same Type
and, in the case of Eurodollar Loans, for the same Interest Period.
“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 owns 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
stock, by contract or otherwise.
“Aggregate
Commitment”
means
the aggregate of the Commitments of all the Lenders, as changed from time to
time pursuant to the terms hereof. On the date hereof, the amount of the
Aggregate Commitment is $515,000,000.
“Aggregate
Outstanding Credit Exposure”
means,
at any time, the aggregate of the Outstanding Credit Exposures of all the
Lenders.
“Agreement”
means
this Credit Agreement, as it may be amended or modified and in effect from
time
to time.
“Agreement
Accounting Principles”
means
generally accepted accounting principles as in effect from time to time, applied
in a manner consistent with that used in preparing the financial statements
referred to in Section 5.4.
“Alternate
Base Rate”
means,
for any day, a rate of interest per annum equal to the higher of (i) the Prime
Rate for such day and (ii) the sum of the Federal Funds Effective Rate for
such
day plus
1/2% per
annum.
“Applicable
Fee Rate”
means,
at any time, the percentage rate per annum at which facility fees are accruing
on the Aggregate Commitment (without regard to usage) at such time as set forth
in the Pricing Schedule.
“Applicable
Margin”
means,
at any time, 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.
“Arrangers”
means
each of JPMorgan Securities, Inc. and LaSalle Bank National Association, in
their capacities as Joint Lead Arrangers and Book Runners.
“Article”
means
an article of this Agreement unless another document is specifically
referenced.
“Authorized
Officer”
means
any Vice President, the Secretary, the Treasurer, the Assistant Secretary and
Assistant Treasurer of the Borrower or a Guarantor, acting singly.
“Borrower”
means
Vectren Utility Holdings, Inc., an Indiana corporation, and its successors
and
assigns.
“Borrowing
Date”
means
a
date on which an Advance is made hereunder.
“Borrowing
Notice”
-
see
Section 2.8.
“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 Chicago, New York and Indianapolis for the conduct of substantially
all
of their commercial lending activities and on which dealings in United States
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 Chicago and Indianapolis for the conduct of substantially all of their
commercial lending activities.
“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.
“Cash
Equivalent Investments”
means
(i) short-term obligations of, or fully guaranteed by, the United States of
America, (ii) commercial paper rated A-1 or better by S&P or P-1 or better
by Moody’s, (iii) demand deposit accounts maintained in the ordinary course of
business, and (iv) certificates of deposit issued by and time deposits with
commercial banks (whether domestic or foreign) having capital and surplus in
excess of $100,000,000; provided
in each
case that the same provides for payment of both principal and interest (and
not
principal alone or interest alone) and is not subject to any contingency
regarding the payment of principal or interest.
“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 30% or more
of
the outstanding shares of voting stock of the Parent, (ii) the occurrence during
any period of twelve (12) consecutive months, commencing before or after the
date of this Agreement, pursuant to which individuals who on the first day
of
such period were directors of the Parent (together with any replacement or
additional directors who were nominated or elected by a majority of directors
then in office) cease to constitute a majority of the Board of Directors of
the
Parent or (iii) the Parent shall cease to own, free and clear of any Lien,
100%
of the issued and outstanding capital stock of the Borrower.
“Code”
means
the Internal Revenue Code of 1986, as amended, reformed or otherwise modified
from time to time.
“Collateral
Shortfall Amount”
is
defined in Section
8.1.
“Commitment”
means,
for each Lender, the obligation of such Lender to make Loans to and participate
in Facility LCs issued upon the application of, the Borrower in an aggregate
amount not exceeding the amount set forth opposite its name on Schedule
I,
as it
may be modified as a result of any assignment that has become effective pursuant
to Section 12.3.3,
or as
otherwise modified from time to time pursuant to the terms hereof.
“Consolidated
Indebtedness”
means
at any time the Indebtedness of a Person and its Subsidiaries calculated on
a
consolidated basis as of such time.
“Consolidated
Net Worth”
means
at any time the consolidated stockholders’ equity of a Person and its
Subsidiaries calculated on a consolidated basis as of 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 (other than accounts payable of
such
Person’s Subsidiary arising in the ordinary course of such Subsidiary’s business
payable on terms customary in the trade), 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 or take-or-pay
contract.
“Controlled
Group”
means
all members of a controlled group of corporations or other business entities
and
all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower or any of its Subsidiaries, are treated as
a
single employer under Section 414 of the Code.
“Conversion/Continuation
Notice”
-
see
Section 2.9.
“Credit
Extension”
means
the making of an Advance, the issuance of a Facility LC hereunder or the
amendment or extension of a Facility LC.
“Credit
Extension Date”
means
the Borrowing Date for an Advance, the issuance date for a Facility LC or the
date of amendment or extension of a Facility LC.
“Default”
means
an event described in Article
VII.
“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, and any rule or regulation issued thereunder.
“Eurodollar
Advance”
means
an Advance which, except as otherwise provided in Section 2.11,
bears
interest at the applicable Eurodollar Rate.
“Eurodollar
Base Rate”
means,
with respect to any Eurodollar Advance or a Eurodollar Loan for the relevant
Interest Period applicable to such Eurodollar Advance, the rate determined
by
the Administrative Agent to be the rate at which JPMCB offers to place deposits
in U.S. dollars with first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two Business Days prior to the first
day
of such Interest Period, in the approximate amount of JPMCB’s relevant portion
of the Eurodollar Advance and having a maturity approximately equal to such
Interest Period.
“Eurodollar
Loan”
means
a
Loan which, except as otherwise provided in Section
2.11,
bears
interest at the applicable Eurodollar Rate.
“Eurodollar
Rate”
means,
with respect to a Eurodollar Advance or a Eurodollar Loan 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) the
Applicable Margin for Eurodollar Advances. The Eurodollar Rate shall be rounded
to the next higher multiple of 1/16 of 1% if the rate is not such a
multiple.
“Excluded
Taxes”
means,
in the case of each Lender or applicable Lending Installation and the
Administrative 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 Administrative Agent is incorporated or organized or (ii) the
jurisdiction in which the Administrative 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
Credit Agreement”
means
the Credit Agreement, dated as of June 24, 2004, among the Borrower, the
Guarantors, various financial institutions and JPMorgan Chase Bank, N.A.
(successor by merger to Bank One, NA), as agent.
“Existing
Indebtedness”
means
Indebtedness existing on the date hereof.
“Facility
LC”
is
defined in Section
2.19.1.
“Facility
LC Application”
is
defined in Section
2.19.3.
“Facility
LC Collateral Account”
is
defined in Section
2.19.11.
“Facility
Termination Date”
means
the earlier to occur of (i) November 10, 2010 (or any later date as may be
established pursuant to Section
2.20)
or (ii)
any earlier date on which the Aggregate Commitment is reduced to zero or
otherwise terminated pursuant to the terms 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 10:00 a.m. (Chicago time) on such day on such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by the Administrative Agent in its sole
discretion.
“Fee
Letters”
means
each of (i) that certain letter agreement dated as of October 17, 2005 among
Vectren Capital, Corp., the Borrower and LaSalle Bank National Association
and
(ii) that certain letter agreement dated as of October 17, 2005 among Vectren
Capital, Corp., the Borrower, JPMorgan Chase Bank, N.A. and JPMorgan Securities,
Inc.
“Financial
Contract”
of
a
Person means (i) any exchange-traded or over-the-counter futures, forward,
swap
or option contract or other financial instrument with similar characteristics,
(ii) any agreements, devices or arrangements providing for payments related
to
fluctuations of interest rates, exchange rates or forward rates, including,
but
not limited to, interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options or (iii) to the extent not otherwise included
in the foregoing, any Rate Hedging Agreement.
“Floating
Rate”
means,
for any day, a rate per annum equal to (i) the Alternate Base Rate for such
day
plus
(ii) the
Applicable Margin for Floating Rate Advances, in each case changing when and
as
the Alternate Base Rate changes.
“Floating
Rate Advance”
means
an Advance which, except as otherwise provided in Section
2.11,
bears
interest at the Floating Rate.
“Floating
Rate Loan”
means
a
Loan which, except as otherwise provided in Section
2.11,
bears
interest at the Floating Rate.
“Guaranteed
Obligations”
-
see
Section
13.1.
“Guarantor”
means
each of Indiana Gas Company, Inc., SIGECO and Vectren Energy Delivery of Ohio,
Inc., and each of their respective successors and assigns.
“Indebtedness”
of
a
Person means such Person’s (i) obligations for borrowed money, (ii) obligations
representing the deferred purchase price of Property or services (other than
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, acceptances or other instruments, (v) obligations
of such Person 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, (vii) Contingent Obligations,
(viii) reimbursement and other obligations in connection with letters of credit,
(ix) Net ▇▇▇▇-to-Market Exposure of Rate Hedging Agreements and other Financial
Contracts, (x) Synthetic Lease Obligations and (xi) any other obligation for
borrowed money or other financial accommodation which in accordance with
Agreement Accounting Principles would be shown as a liability on the
consolidated balance sheet of such Person.
“Interest
Period”
means,
with respect to any Eurodollar Advance, a period of one, two, three or six
months commencing on a Business Day selected by the Borrower pursuant to this
Agreement. Such Interest Period shall end on the day which corresponds
numerically to such date one, two, three or six months thereafter, provided,
however, that
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. 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.
“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 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.
“JPMCB”
means
JPMorgan Chase Bank, N.A., a national banking association, in its individual
capacity, and its successors and assigns.
“LaSalle”
means
LaSalle Bank National Association, a national banking association, in its
individual capacity, and its successors and assigns.
“LC
Commitment”
means
(i) with respect to JPMCB, $150,000,000 and (ii) with respect to LaSalle,
$100,000,000.
“LC
Fee”
is
defined in Section
2.19.4.
“LC
Issuers”
means
each of JPMCB (or any subsidiary or affiliate of JPMCB designated by JPMCB)
and
LaSalle (or any subsidiary or affiliate of LaSalle designated by LaSalle),
in
their capacities as issuers of Facility LCs hereunder.
“LC
Obligations”
means,
at any time, the sum, without duplication, of (i) the aggregate undrawn stated
amount under all Facility LCs outstanding at such time plus (ii) the aggregate
unpaid amount at such time of all Reimbursement Obligations.
“LC
Payment Date”
is
defined in Section
2.19.5.
“Lenders”
means
the lending institutions listed on the signature pages of this Agreement and
their respective successors and assigns.
“Lending
Installation”
means,
with respect to a Lender, the office, branch, subsidiary or affiliate of such
Lender specified as such in its Administrative Questionnaire or otherwise
selected by such Lender pursuant to Section 2.16.
“Lien”
means
any lien (statutory or other), security interest, 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).
“Loan”
means,
with respect to a Lender, such Lender’s loans made pursuant to Article
II
(or any
conversion or continuation thereof).
“Loan
Documents”
means
this Agreement, the Facility LC Applications, the Fee Letters, the Notes, and
any other documents or instruments now or hereafter executed and delivered
by or
on behalf of the Borrower or any Guarantor to the Administrative Agent or the
Lenders to further evidence or govern the Obligations.
“Material
Adverse Effect”
means
a
material adverse effect on (i) the business, Property, condition (financial
or
otherwise) or results of operations of the Borrower and its Subsidiaries taken
as a whole, (ii) the ability of the Borrower or any Guarantor 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 Administrative Agent,
the LC Issuers or the Lenders thereunder.
“Material
Indebtedness”
-
see
Section 7.5.
“Modify”
and
“Modification”
are
defined in Section
2.19.1.
“Moody’s”
means
▇▇▇▇▇’▇ Investors Service, Inc.
“Mortgage
Indenture”
means
the Mortgage and Deed of Trust, dated as of April 1, 1932, between SIGECO and
Bankers Trust Company (as supplemented from time to time before or after the
date hereof by various supplemental indentures thereto).
“Multiemployer
Plan”
means
a
Plan maintained pursuant to a collective bargaining agreement or any other
arrangement to which the Borrower or any other member of the Controlled Group
is
a party to which more than one employer is obligated to make
contributions.
“Net
▇▇▇▇-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
Hedging Agreements or other Financial Contracts. “Unrealized losses” means the
fair market value of the cost to such Person of replacing such Rate Hedging
Agreement or other Financial Contract as of the date of determination (assuming
the Rate Hedging Agreement or other Financial Contract 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 Hedging Agreement or other Financial
Contract as of the date of determination (assuming such Rate Hedging Agreement
or other Financial Contract were to be terminated as of that date).
“Non-U.S.
Lender”
-
see
Section 3.5(iv).
“Notes”
means
the Notes, each substantially in the form of Exhibit
A hereto,
duly executed by the Borrower to the respective Lenders to evidence the Credit
Extensions, including any and all renewals, extensions, replacements and
modifications thereof.
“Obligations”
means
all unpaid principal of and accrued and unpaid interest on the Loans, all
Reimbursement Obligations, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower to the Lenders
or to any Lender, the Administrative Agent, any LC Issuer or any indemnified
party arising under the Loan Documents.
“Other
Taxes”
-
see
Section 3.5(ii).
“Outstanding
Credit Exposure”
means,
as to any Lender at any time, the sum of (i) the aggregate principal amount
of
its Loans outstanding at such time, plus (ii) an amount equal to its Pro Rata
Share of the LC Obligations at such time.
“Parent”
means
Vectren Corporation, an Indiana corporation.
“Participants”
-
see
Section 12.2.1.
“Payment
Date”
means
the last Business Day of each month.
“PBGC”
means
the Pension Benefit Guaranty Corporation, or any successor thereto.
“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
an employee pension benefit plan which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Code as
to which the Borrower or any other member of the Controlled Group may have
any liability.
“Pricing
Schedule”
means
the Schedule attached hereto identified as such.
“Prime
Rate”
means
a
rate per annum equal to the prime rate of interest announced from time to time
by JPMCB or its parent (which is not necessarily the lowest rate charged to
any
customer), changing when and as said prime rate changes.
“Pro
Rata Share”
means,
as to any Lender, when used with reference to an aggregate or total amount,
an
amount equal to the product of (a) such aggregate or total amount, multiplied by
(b) a
fraction, the numerator of which shall be the sum of such Lender’s Commitment
(or, if the Commitments have been terminated, such Lender’s Outstanding Credit
Exposure) and the denominator of which shall be the Aggregate Commitment (or,
if
the Commitments have been terminated, the Aggregate Outstanding Credit
Exposure).
“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.
“Purchasers”
-
see
Section 12.3.1.
“Rate
Hedging Agreement”
means
an agreement, device or arrangement providing for payments which are related
to
fluctuations of interest rates, exchange rates or forward rates, including,
but
not limited to, dollar-denominated or cross-currency interest rate exchange
agreements, forward currency exchange agreements, interest rate cap or collar
protection agreements, forward rate currency or interest rate options, puts
and
warrants.
“Rate
Hedging Obligations”
of
a
Person means any and all 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 Hedging Agreements, and (ii) any and
all
cancellations, buy backs, reversals, terminations or assignments of any Rate
Hedging Agreement.
“Register”
—
see
Section 12.3.4.
“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 for the purpose of purchasing or carrying margin stocks applicable to
member banks of the Federal Reserve System.
“Reimbursement
Obligations”
means,
at any time, the aggregate of all obligations of the Borrower then outstanding
under Section
2.19
to
reimburse each LC Issuer for amounts paid by such LC Issuer in respect of any
one or more drawings under Facility LCs.
“Reportable
Event”
means
a
reportable event as defined in Section 4043 of ERISA and the regulations
issued under such section, with respect to a Plan, excluding, however, such
events as to which the PBGC has by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within 30 days of the
occurrence of such event, provided,
however, that
a
failure to meet the minimum funding standard of Section 412 of the Code and
of Section 302 of ERISA shall be a Reportable Event regardless of the
issuance of any such waiver of the notice requirement in accordance with either
Section 4043(a) of ERISA or Section 412(d) of the Code.
“Reports”
-
see
Section 9.6.
“Required
Lenders”
means
Lenders in the aggregate having more than 50% of the Aggregate Commitment or,
if
the Aggregate Commitment has been terminated, Lenders in the aggregate holding
more than 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.
“S&P”
means
Standard and Poor’s Ratings Services, a division of The McGraw Hill Companies,
Inc.
“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.
“SIGECO”
means
Southern Indiana Gas and Electric Company, an Indiana corporation.
“Single
Employer Plan”
means
a
Plan maintained by the Borrower or any other member of the Controlled Group
for
employees of the Borrower or any other member of the Controlled
Group.
“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 (i) represents more than 10% of the consolidated assets of the Borrower
and its Subsidiaries as would be shown in the consolidated financial statements
of the Borrower and its Subsidiaries as at the beginning of the twelve-month
period ending with the month in which such determination is made or (ii) is
responsible for more than 10% of the consolidated net sales or of the
consolidated net income of the Borrower and its Subsidiaries as reflected in
the
financial statements referred to in clause
(i)
above.
“Synthetic
Lease Obligation”
means
the monetary obligation of a Person under (i) a so-called synthetic or
off-balance sheet or tax retention lease or (ii) an agreement for the use or
possession of property creating obligations that do not appear on the balance
sheet of such Person but which, upon the insolvency or bankruptcy of such
Person, would be characterized as indebtedness of such Person (without regard
to
accounting treatment). The amount of Synthetic Lease Obligations of any Person
under any such lease or agreement shall be the amount which would be shown
as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles if such lease or agreement were accounted for
as
a Capitalized Lease.
“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”
-
see
Section 12.4.
“Type”
means,
with respect to any Advance, its nature as a Floating Rate Advance or a
Eurodollar Advance and with respect to any Loan, its nature as a Floating Rate
Loan or a Eurodollar Loan.
“Unfunded
Liabilities”
means
the amount (if any) by which the present value of all vested and unvested
accrued benefits under all Single Employer Plans exceeds the fair market value
of all such Plan assets allocable to such benefits, all determined as of the
then most recent valuation date for such Plans using PBGC actuarial assumptions
for single employer plan terminations.
“Unmatured
Default”
means
an event which but for the lapse of time or the giving of notice, or both,
would
constitute a Default.
“Wholly-Owned
Subsidiary”
of
a
Person means (i) any Subsidiary all of the outstanding voting securities of
which shall at the time be owned or controlled, directly or indirectly, by
such
Person or one or more Wholly-Owned Subsidiaries of such Person, or by such
Person and one or more Wholly-Owned Subsidiaries of such Person, or (ii) any
partnership, limited liability company, association, joint venture or similar
business organization 100% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled.
The
foregoing definitions shall be equally applicable to both the singular and
plural forms of the defined terms.
ARTICLE
II
THE
CREDITS
2.1 Commitments.
Subject
to the terms and conditions of this Agreement and prior to the Facility
Termination Date, each Lender severally agrees, on the terms and conditions
set
forth in this Agreement, to (i) make loans to the Borrower and (ii)
participate in Facility LCs issued upon the request of the Borrower,
provided
that,
after giving effect to the making of each such Loan and the issuance of each
such Facility LC, such Lender’s Outstanding Credit Exposure shall not exceed its
Commitment. No requested Credit Extension shall cause the Aggregate Outstanding
Credit Exposure to exceed the Aggregate Commitment. Subject to the terms of
this
Agreement, the Borrower may borrow, repay and reborrow such available amount
under the Commitments at any time prior to the Facility Termination Date. The
Commitments to lend hereunder shall expire on the Facility Termination Date.
The
Credit Extensions made by the Lenders pursuant hereto shall be evidenced by
the
Notes. Each LC Issuer will issue Facility LCs hereunder on the terms and
conditions set forth in Section 2.19.
2.2 Required
Payments; Clean-Down; Termination.
The
Aggregate Outstanding Credit Exposure and all other unpaid Obligations shall
be
paid in full by the Borrower on the Facility Termination Date. The Borrower
shall cause the aggregate amount of the Advances to not exceed zero for one
Business Day in each period of 364 consecutive days.
2.3 Ratable
Loans.
Each
Advance hereunder shall consist of Loans made from the several Lenders in
accordance with their respective Pro Rata Shares.
2.4 Types
of Advances.
The
Advances may be Floating Rate Advances or Eurodollar Advances, or a
combination thereof, selected by the Borrower in accordance with Sections
2.8
and
2.9.
2.5 Facility
Fee; Changes in Aggregate Commitment.
2.5.1 The
Borrower agrees to pay to the Administrative Agent for the account of each
Lender according to its Pro Rata Share a facility fee at a per annum rate equal
to the Applicable Fee Rate from and after the date hereof to and including
the
Facility Termination Date on such Lender’s Commitment (regardless of usage) in
effect from time to time. Such facility fees shall be payable in arrears on
the
last Business Day of each quarter and on the Facility Termination
Date.
2.5.2 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 three Business Days’ prior written notice to the Administrative 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.
2.5.3 So
long
as no Default or Unmatured Default exists or would result therefrom, the
Borrower may, from time to time, by means of a letter delivered to the
Administrative Agent substantially in the form of Exhibit
E,
and
acknowledged by the Guarantors, request that the Aggregate Commitment be
increased to up to $575,000,000 (less the amount of any previous reductions
of
the Aggregate Commitment pursuant to Section
2.5.2
above)
by (a) increasing the Commitment of one or more Lenders that have agreed to
such
increase and/or (b) adding one or more commercial banks or other Persons as
a
party hereto (each an “Additional
Lender”)
with a
Commitment in an amount agreed to by any such Additional Lender; provided
that no
Additional Lender shall be added as a party hereto without the written consent
of the Administrative Agent (which shall not be unreasonably withheld). Any
increase in the Aggregate Commitment pursuant to this Section
2.5.3
shall be
effective three Business Days after the date on which the Administrative Agent
has received and accepted the applicable increase letter in the form of
Annex
1
to
Exhibit
E
(in the
case of an increase in the Commitment of an existing Lender) or assumption
letter in the form of Annex
2
to
Exhibit
E
(in the
case of the addition of an Additional Lender). The Administrative Agent shall
promptly notify the Borrower and the Lenders of any increase in the amount
of
the Aggregate Commitment pursuant to this Section
2.5.3
and of
the Commitment of each Lender after giving effect thereto. The Borrower
acknowledges that, in order to maintain Advances in accordance with each
Lender’s pro rata share of all outstanding Advances prior to any increase in the
Aggregate Commitment pursuant to this Section
2.5.3,
a
reallocation of the Commitments as a result of a non-pro-rata increase in the
Aggregate Commitment may require prepayment of all or portions of certain
Advances on the date of such increase (and any such prepayment shall be subject
to the provisions of Section
3.4).
2.6 Minimum
Amount of Each Advance.
Each
Eurodollar Advance shall be in the minimum amount of $10,000,000 and in integral
multiples of $1,000,000 (if in excess thereof), and each Floating Rate Advance
may be in the amount of $1,000,000 or an integral multiple thereof. The
Borrower shall not request a Eurodollar Advance if, after giving effect thereto,
more than seven separate Eurodollar Advances would be outstanding.
2.7 Optional
Principal Payments.
The
Borrower may from time to time pay, without penalty or premium, all
outstanding Floating Rate Advances, or, in a minimum aggregate amount of
$1,000,000 or any integral multiple of $1,000,000 in excess thereof, any portion
of the outstanding Floating Rate Advances upon one Business Day’s prior notice
to the Administrative 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
Business Days’ prior notice to the Administrative Agent. Each prepayment
pursuant to this Section shall be made together with accrued and unpaid interest
to the date of such prepayment on the principal amount paid.
2.8 Method
of Selecting Types and Interest Periods for New Advances.
The
Borrower shall select the Type of Advance and, in the case of each Eurodollar
Advance, the Interest Period applicable thereto from time to time. The Borrower
shall give the Administrative Agent irrevocable notice (a “Borrowing
Notice”)
not
later than 10:00 a.m. (Chicago time) on the proposed Borrowing Date of each
Floating Rate Advance and three Business Days before the Borrowing Date for
each
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.
Any
notice received later than 10:00 a.m. (Chicago time) on any day shall be deemed
to be received on the following Business Day. The Administrative Agent shall
notify the Lenders of the Borrower’s intent to borrow by 12:00 p.m. (Chicago
time) on the date it receives a timely Borrowing Notice from the Borrower.
Not
later than 2:00 p.m. (Chicago time) on each Borrowing Date, each Lender shall
make available its Loan or Loans in immediately available funds to the
Administrative Agent at its address specified pursuant to Article
XIV.
The
Administrative Agent will make the funds so received from the Lenders available
to the Borrower at the Administrative Agent’s aforesaid address.
2.9 Conversion
and Continuation of Outstanding Advances.
Floating Rate Advances shall continue as Floating Rate Advances unless and
until
such Floating Rate Advances are converted into Eurodollar Advances pursuant
to
this Section 2.9
or are
repaid in accordance with Section 2.7.
Each
Eurodollar Advance shall continue as a Eurodollar Advance until the end of
the
then applicable Interest Period therefor, at which time such Eurodollar Advance
shall be automatically converted into a Floating Rate Advance unless (x) such
Eurodollar Advance is or was repaid in accordance with Section
2.7
or (y)
the Borrower shall have given the Administrative Agent a Conversion/Continuation
Notice (as defined below) requesting that, at the end of such Interest Period,
such Eurodollar Advance continue as a Eurodollar Advance for the same or another
Interest Period. Subject to the terms of Section 2.6,
the
Borrower may elect from time to time to convert all or any part of a
Floating Rate Advance into a Eurodollar Advance. The Borrower shall give the
Administrative Agent irrevocable notice (a “Conversion/Continuation
Notice”)
of
each conversion of a Floating Rate Advance into a Eurodollar Advance or
continuation of a Eurodollar Advance not later than 10:00 a.m. (Chicago
time) at least three Business Days prior to the date of the requested conversion
or continuation, specifying:
(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.
2.10 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
2.9,
to but
excluding the date it is paid or is converted into a Eurodollar Advance pursuant
to Section
2.9,
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 each Interest Period applicable
thereto to (but not including) the last day of such Interest Period at the
interest rate determined by the Administrative Agent as applicable to such
Eurodollar Advance based upon the Borrower’s selections under Sections
2.8
and
2.9
and
otherwise in accordance with the terms hereof. No Interest Period may end after
the Facility Termination Date.
2.11 Rates
Applicable After Default.
Notwithstanding anything to the contrary contained in Section
2.8,
2.9
or
2.10,
during
the continuance of a Default or Unmatured Default 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
8.3
requiring unanimous consent of the Lenders to changes in interest rates),
declare that no Advance may be made as, converted into or continued as a
Eurodollar Advance. During the continuance of a Default 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
8.3
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, (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 and (iii) the LC Fee shall be increased by 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
and the increase in the LC Fee set forth in clause
(iii)
above
shall be applicable to all Credit Extensions without any election or action
on
the part of the Administrative Agent or any Lender.
2.12 Method
of Payment.
All
payments of the Obligations hereunder shall be made, without setoff, deduction,
or counterclaim, and without relief from valuation and appraisement laws, in
immediately available funds to the Administrative Agent at the Administrative
Agent’s address specified pursuant to Article
XIV,
or at
any other Lending Installation of the Administrative Agent specified in writing
by the Administrative Agent to the Borrower, by noon (Chicago time) on the
date
when due and shall (except in the case of Reimbursement Obligations for which
an
LC Issuer has not been fully indemnified by the Lenders, or as otherwise
specifically required hereunder) be applied ratably by the Administrative Agent
among the Lenders. Each payment delivered to the Administrative Agent for the
account of any Lender shall be delivered promptly by the Administrative Agent
to
such Lender in the same type of funds that the Administrative Agent received
at
its address specified pursuant to Article
XIV
or at
any Lending Installation specified in a notice received by the Administrative
Agent from such Lender. The Administrative Agent is hereby authorized to charge
the account of the Borrower maintained with JPMCB for each payment of principal,
interest, Reimbursement Obligations and fees as it becomes due hereunder.
Each
reference to the Administrative Agent in this Section
2.12
shall
also be deemed to refer, and shall apply equally, to each LC Issuer, in the
case
of payments required to be made by the Borrower to such LC Issuer pursuant
to
Section
2.19.6.
2.13 Notes;
Telephonic Notices.
Each
Lender is hereby authorized to record the principal amount of each of its Credit
Extensions and each repayment on any schedule attached to its Note (and each
such record shall be conclusive, absent manifest error), provided,
however,
that
neither the failure to so record nor any error in such recordation shall affect
the Borrower’s obligations under such Note. The Borrower hereby authorizes the
Lenders and the Administrative 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 Administrative Agent or any Lender
believes in good faith 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 Administrative
Agent a written confirmation, if such confirmation is requested by the
Administrative Agent or any Lender, of each telephonic notice signed by an
Authorized Officer of the Borrower. If the written confirmation differs in
any
material respect from the action taken by the Administrative Agent and the
Lenders, the records of the Administrative Agent and the Lenders shall govern
absent manifest error.
2.14 Interest
Payment Dates; Interest and Fee Basis.
Interest accrued on each Floating Rate Advance shall be payable on each Payment
Date, commencing with the first such date to occur after the date hereof, on
any
date on which such Advance is prepaid, whether due to acceleration or otherwise,
and at maturity. Interest accrued on each Eurodollar Advance shall be payable
on
the last day of its applicable Interest Period, or any date on which the
Eurodollar Advance is prepaid, whether by acceleration or otherwise, and on
the
Facility Termination Date. Interest accrued on each Eurodollar Advance having
an
Interest Period longer than three (3) months shall also be payable on the last
day of each three (3) month interval during such Interest Period. Interest,
facility fees and LC Fees shall be calculated for actual days elapsed on the
basis of a 360-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 noon (Chicago time) at the place of payment. If any payment
of
principal of or interest on an Advance shall become due on a day which is not
a
Business Day, then (subject to the second proviso
of the
definition of “Interest Period”) such payment shall be made on the next
succeeding Business Day and, in the case of a principal payment, such extension
of time shall be included in computing interest in connection with such
payment.
2.15 Notification
of Advances, Interest Rates, Prepayments and Commitment
Reductions.
Promptly after receipt thereof, the Administrative Agent will notify each Lender
of the contents of each Aggregate Commitment reduction notice, Borrowing Notice,
Conversion/Continuation Notice and repayment notice received by it hereunder.
Promptly after notice from an LC Issuer, the Administrative Agent will notify
each Lender of the contents of each request for issuance of a Facility LC
hereunder. The Administrative Agent will notify each Lender of the interest
rate
applicable to each Eurodollar Advance promptly upon determination of such
interest rate and will give each Lender prompt notice of each change in the
Alternate Base Rate. Each determination by the Administrative Agent of the
applicable interest rate shall be binding and conclusive absent manifest
error.
2.16 Lending
Installations.
Each
Lender may book its Loans and its participation in any LC Obligations and each
LC Issuer may book the Facility LCs at any Lending Installation selected by
such
Lender or such LC Issuer, as the case may be, 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, Facility LCs, participations in LC
Obligations and any Notes issued hereunder shall be deemed held by each Lender
for the benefit of such Lending Installation. Each Lender and each LC Issuer
may, by written notice to the Administrative Agent and the Borrower in
accordance with Article
XIV,
designate replacement or additional Lending Installations through which Loans
will be made by it or Facility LCs will be issued by it and for whose account
Loan payments or payments with respect of Facility LCs are to be
made.
2.17 Non-Receipt
of Funds by the Administrative Agent.
Unless
the Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the Administrative
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 Administrative
Agent for the account of the Lenders, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been
made. The Administrative 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 Administrative Agent, the recipient of such payment
shall, on demand by the Administrative Agent, repay to the Administrative 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 Administrative Agent until the date the Administrative 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.
2.18 Use
of
Proceeds.
The
proceeds of the Credit Extensions shall be used for general corporate purposes
not prohibited by this Agreement.
2.19 Facility
LCs.
2.19.1 Issuance.
Each LC
Issuer hereby agrees, on the terms and conditions set forth in this Agreement,
to issue standby and commercial letters of credit (each, a “Facility
LC”)
and to
renew, extend, increase, decrease or otherwise modify each Facility LC issued
by
it (“Modify,”
and
each such action a “Modification”),
from
time to time from and including the date of this Agreement and prior to the
Facility Termination Date upon the request of the Borrower; provided
that
immediately after each such Facility LC is issued or Modified, (i) the aggregate
amount of the outstanding LC Obligations shall not exceed $250,000,000, (ii)
the
Aggregate Outstanding Credit Exposure shall not exceed the Aggregate Commitment
and (iii) the aggregate amount of the outstanding LC Obligations issued by
each
LC Issuer shall not exceed such LC Issuer’s LC Commitment. No Facility LC shall
have an expiry date later than the earlier of (x) the fifth Business Day prior
to the Facility Termination Date and (y) one year after its issuance;
it
being understood that
if the
Borrower so requests in any applicable Facility LC Application, each LC Issuer
may, in its sole and absolute discretion, agree to issue a Facility LC that
has
automatic extension provisions, provided
that any
such Facility LC must permit such LC Issuer to prevent any such extension at
least once in each twelve-month period (commencing with the date of issuance
of
such Facility LC) by giving notice to the beneficiary thereof not later than
a
day in each such twelve-month period to be agreed upon at the time such Facility
LC is issued, and provided,
further,
that no
Facility LC may have its expiry date extended to a date later than the date
referred to in clause
(x) above.
2.19.2 Participations.
Upon
the issuance or Modification by an LC Issuer of a Facility LC in accordance
with
this Section
2.19,
such LC
Issuer shall be deemed, without further action by any party hereto, to have
unconditionally and irrevocably sold to each Lender, and each Lender shall
be
deemed, without further action by any party hereto, to have unconditionally
and
irrevocably purchased from such LC Issuer, a participation in such Facility
LC
(and each Modification thereof) and the related LC Obligations in proportion
to
its Pro Rata Share.
2.19.3 Notice.
Subject
to Section
2.19.1,
the
Borrower shall give the applicable LC Issuer notice prior to 10:00 a.m. (Chicago
time) at least five Business Days prior to the proposed date of issuance or
Modification of each Facility LC, specifying the beneficiary, the proposed
date
of issuance (or Modification) and the expiry date of such Facility LC, and
describing the proposed terms of such Facility LC and the nature of the
transactions proposed to be supported thereby. Upon receipt of such notice,
such
LC Issuer shall promptly notify the Administrative Agent, and the Administrative
Agent shall promptly notify each Lender, of the contents thereof and of the
amount of such Lender’s participation in such proposed Facility LC. The issuance
or Modification by an LC Issuer of any Facility LC shall, in addition to the
conditions precedent set forth in Article
IV
(the
satisfaction of which such LC Issuer shall have no duty to ascertain), be
subject to the conditions precedent that such Facility LC shall be satisfactory
to such LC Issuer and that the Borrower shall have executed and delivered such
application agreement and/or such other instruments and agreements relating
to
such Facility LC as such LC Issuer shall have reasonably requested (each, a
“Facility
LC Application”).
In
the event of any conflict between the terms of this Agreement and the terms
of
any Facility LC Application, the terms of this Agreement shall
control.
2.19.4 LC
Fees.
The
Borrower shall pay to the Administrative Agent, for the account of the Lenders
ratably in accordance with their respective Pro Rata Shares, (i) with
respect to each standby Facility LC, a letter of credit fee at a per annum
rate
equal to the Applicable Margin for Eurodollar Loans in effect from time to
time
on the average daily undrawn stated amount under such standby Facility LC,
such
fee to be payable in arrears on each Payment Date and (ii) with respect to
each commercial Facility LC, a one-time letter of credit fee in an amount equal
to 0.35% of the initial stated amount (or, with respect to a Modification of
any
such commercial Facility LC which increases the stated amount thereof, such
increase in the stated amount) thereof, such fee to be payable on the date
of
such issuance or increase (each such fee described in this sentence, an
“LC
Fee”).
The
Borrower shall also pay to each LC Issuer for its own account (x) at the time
of
issuance of each Facility LC, a fronting fee in an amount to be agreed upon
between such LC Issuer and the Borrower, and (y) documentary and processing
charges in connection with the issuance or Modification of and draws under
Facility LCs in accordance with such LC Issuer’s standard schedule for such
charges as in effect from time to time.
2.19.5 Administration;
Reimbursement by Lenders.
Upon
receipt from the beneficiary of any Facility LC of any demand for payment under
such Facility LC, the LC Issuer that issued such Facility LC shall notify the
Administrative Agent and the Administrative Agent shall promptly notify the
Borrower and each other Lender as to the amount to be paid by such LC Issuer
as
a result of such demand and the proposed payment date (the “LC
Payment Date”).
The
responsibility of each LC Issuer to the Borrower and each Lender shall be only
to determine that the documents (including each demand for payment) delivered
under each Facility LC in connection with such presentment shall be in
conformity in all material respects with such Facility LC. Each LC Issuer shall
endeavor to exercise the same care in the issuance and administration of the
Facility LCs issued by it as it does with respect to letters of credit in which
no participations are granted, it being understood that in the absence of any
gross negligence or willful misconduct by such LC Issuer, each Lender shall
be
unconditionally and irrevocably liable without regard to the occurrence of
any
Default or any condition precedent whatsoever, to reimburse such LC Issuer
on
demand for (i) such Lender’s Pro Rata Share of the amount of each payment made
by such LC Issuer under each Facility LC issued by such LC Issuer to the extent
such amount is not reimbursed by the Borrower pursuant to Section
2.19.6
below,
plus (ii) interest on the foregoing amount to be reimbursed by such Lender,
for
each day from the date of such LC Issuer’s demand for such reimbursement (or, if
such demand is made after 11:00 a.m. (Chicago time) on such date, from the
next
succeeding Business Day) to the date on which such Lender pays the amount to
be
reimbursed by it, at a rate of interest per annum equal to the Federal Funds
Effective Rate for the first three days and, thereafter, at a rate of interest
equal to the rate applicable to Floating Rate Advances.
2.19.6 Reimbursement
by Borrower.
The
Borrower shall be irrevocably and unconditionally obligated to reimburse each
LC
Issuer on or before the applicable LC Payment Date for any amounts to be paid
by
such LC Issuer upon any drawing under any Facility LC issued by such LC Issuer,
without presentment, demand, protest or other formalities of any kind;
provided
that
neither the Borrower nor any Lender shall hereby be precluded from asserting
any
claim for direct (but not consequential) damages suffered by the Borrower or
such Lender to the extent, but only to the extent, caused by (i) the willful
misconduct or gross negligence of such LC Issuer in determining whether a
request presented under any Facility LC issued by it complied with the terms
of
such Facility LC or (ii) such LC Issuer’s failure to pay under any Facility LC
issued by it after the presentation to it of a request strictly complying with
the terms and conditions of such Facility LC. All such amounts paid by an LC
Issuer and remaining unpaid by the Borrower shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to (x) the rate
applicable to Floating Rate Advances for such day if such day falls on or before
the applicable LC Payment Date and (y) the sum of 2% plus the rate applicable
to
Floating Rate Advances for such day if such day falls after such LC Payment
Date. Each LC Issuer will pay to each Lender ratably in accordance with its
Pro
Rata Share all amounts received by it from the Borrower for application in
payment, in whole or in part, of the Reimbursement Obligation in respect of
any
Facility LC issued by such LC Issuer, but only to the extent such Lender has
made payment to such LC Issuer in respect of such Facility LC pursuant to
Section
2.19.5.
Subject
to the terms and conditions of this Agreement (including without limitation
the
submission of a Borrowing Notice in compliance with Section
2.8
and the
satisfaction of the applicable conditions precedent set forth in Article
IV),
the
Borrower may request an Advance hereunder for the purpose of satisfying any
Reimbursement Obligation.
2.19.7 Obligations
Absolute.
The
Borrower’s obligations under this Section 2.19
shall be
absolute and unconditional under any and all circumstances and irrespective
of
any setoff, counterclaim or defense to payment which the Borrower may have
or
have had against any LC Issuer, any Lender or any beneficiary of a Facility
LC.
The Borrower further agrees with the LC Issuers and the Lenders that the LC
Issuers and the Lenders shall not be responsible for, and the Borrower’s
Reimbursement Obligation in respect of any Facility LC shall not be affected
by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even if such documents should in fact prove to be in
any
or all respects invalid, fraudulent or forged, or any dispute between or among
the Borrower, any of its Affiliates, the beneficiary of any Facility LC or
any
financing institution or other party to whom any Facility LC may be transferred
or any claim or defense whatsoever of the Borrower or of any of its Affiliates
against the beneficiary of any Facility LC or any such transferee. No LC Issuer
shall be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Facility LC. The Borrower agrees that any action taken
or
omitted by any LC Issuer or any Lender under or in connection with each Facility
LC and the related drafts and documents, if done without gross negligence or
willful misconduct, shall be binding upon the Borrower and shall not put any
LC
Issuer or any Lender under any liability to the Borrower. Nothing in this
Section
2.19.7
is
intended to limit the right of the Borrower to make a claim against an LC Issuer
for damages as contemplated by the proviso
to the
first sentence of Section
2.19.6.
2.19.8 Actions
of LC Issuer.
Each LC
Issuer shall be entitled to rely, and shall be fully protected in relying,
upon
any Facility LC, draft, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document believed by it to be genuine and correct
and
to have been signed, sent or made by the proper Person or Persons, and upon
advice and statements of legal counsel, independent accountants and other
experts selected by such LC Issuer. Each LC Issuer shall be fully justified
in
failing or refusing to take any action under this Agreement unless it shall
first have received such advice or concurrence of the Required Lenders as it
reasonably deems appropriate or it shall first be indemnified to its reasonable
satisfaction by the Lenders against any and all liability and expense which
may
be incurred by it by reason of taking or continuing to take any such action.
Notwithstanding any other provision of this Section
2.19,
each LC
Issuer shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement in accordance with a request of the Required
Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon the Lenders and any future holders of a
participation in any Facility LC.
2.19.9 Indemnification.
The
Borrower hereby agrees to indemnify and hold harmless each Lender, each LC
Issuer and the Administrative Agent, and their respective directors, officers,
agents and employees from and against any and all claims and damages, losses,
liabilities, costs or expenses which such Lender, such LC Issuer or the
Administrative Agent may incur (or which may be claimed against such Lender,
such LC Issuer or the Administrative Agent by any Person whatsoever) by reason
of or in connection with the issuance, execution and delivery or transfer of
or
payment or failure to pay under any Facility LC or any actual or proposed use
of
any Facility LC, including, without limitation, any claims, damages, losses,
liabilities, costs or expenses which any LC Issuer may incur by reason of or
in
connection with (i) the failure of any other Lender to fulfill or comply
with its obligations to the LC Issuers hereunder (but nothing herein contained
shall affect any rights the Borrower may have against any defaulting Lender)
or
(ii) by reason of or on account of any LC Issuer issuing any Facility LC
which specifies that the term “Beneficiary” included therein includes any
successor by operation of law of the named Beneficiary, but which Facility
LC
does not require that any drawing by any such successor Beneficiary be
accompanied by a copy of a legal document, satisfactory to such LC Issuer,
evidencing the appointment of such successor Beneficiary; provided
that the
Borrower shall not be required to indemnify any Lender, any LC Issuer or the
Administrative Agent for any claims, damages, losses, liabilities, costs or
expenses to the extent, but only to the extent, caused by (x) the willful
misconduct or gross negligence of such LC Issuer in determining whether a
request presented under any Facility LC complied with the terms of such Facility
LC or (y) such LC Issuer’s failure to pay under any Facility LC after the
presentation to it of a request strictly complying with the terms and conditions
of such Facility LC. Nothing in this Section
2.19.9
is
intended to limit the obligations of the Borrower under any other provision
of
this Agreement.
2.19.10 Lenders’
Indemnification.
Each
Lender shall, ratably in accordance with its Pro Rata Share, indemnify each
LC
Issuer, its affiliates and their respective directors, officers, agents and
employees (to the extent not reimbursed by the Borrower) against any cost,
expense (including reasonable counsel fees and disbursements), claim, demand,
action, loss or liability (except such as result from such indemnitees’ gross
negligence or willful misconduct or such LC Issuer’s failure to pay under any
Facility LC after the presentation to it of a request strictly complying with
the terms and conditions of the Facility LC) that such indemnitees may suffer
or
incur in connection with this Section
2.19
or any
action taken or omitted by such indemnitees hereunder.
2.19.11 Facility
LC Collateral Account.
To the
extent provided in Section
8.1,
the
Required Lenders or the Administrative Agent at the direction of the Required
Lenders may demand that the Borrower immediately pay to the Administrative
Agent
an amount equal to the aggregate outstanding amount of the LC Obligations and
the Borrower shall immediately upon any such demand make such payment to the
Administrative Agent to be held in a
special
collateral account (the “Facility
LC Collateral Account”)
at the
Administrative Agent’s office at the address specified pursuant to Article
XIV,
in the
name of the Borrower but under the sole dominion and control of the
Administrative Agent, for the benefit of the Lenders and in which the Borrower
shall have no interest other than as set forth in Section
8.1.
The
Borrower hereby pledges, assigns and grants to the Administrative Agent, on
behalf of and for the ratable benefit of the Lenders and the LC Issuers, a
security interest in all of the Borrower’s right, title and interest in and to
all funds which may from time to time be on deposit in the Facility LC
Collateral Account to secure the prompt and complete payment and performance
of
the Obligations. The Administrative Agent will invest any funds on deposit
from
time to time in the Facility LC Collateral Account in certificates of deposit
of
JPMCB having a maturity not exceeding 30 days. Nothing in this Section
2.19.11
shall
limit the right of the Administrative Agent to release any funds held in the
Facility LC Collateral Account in each case other than as required by
Section
8.1.
2.19.12 Rights
as a Lender.
In its
capacity as a Lender, each LC Issuer shall have the same rights and obligations
as any other Lender.
2.20 Extension
of Facility Termination Date.
2.20.1 The
Borrower may request a one year extension of the then-scheduled Facility
Termination Date by submitting a request for an extension to the Administrative
Agent (an “Extension
Request”)
no
more than 90 days prior to any anniversary of the date of this Agreement;
provided
that the
Borrower may make no more than two such requests. Any Extension Request shall
specify the date (which must be at least 30 days after the Extension Request
is
delivered to the Administrative Agent) as of which the Lenders must respond
to
such Extension Request (the “Response
Date”).
Promptly upon receipt of an Extension Request, the Administrative Agent shall
notify each Lender of the contents thereof. Each Lender shall, not later than
the Response Date for any Extension Request, deliver a written response to
the
Administrative Agent approving or rejecting such Extension Request (and any
Lender that fails to deliver such a response by the Response Date shall be
deemed to have rejected such Extension Request). If Lenders that have Pro Rata
Shares of more than 50% approve an Extension Request (which approval shall
be at
the sole discretion of each Lender), then the scheduled Facility Termination
Date for each such approving Lender shall be extended to the date that is one
year after the previously scheduled Facility Termination Date (but the scheduled
Facility Termination Date for each other Lender shall remain unchanged). If
Lenders that have Pro Rata Shares of 50% or more reject an Extension Request,
then the Facility Termination Date for all Lenders shall remain
unchanged.
2.20.2 If
a
Lender does not approve an Extension Request (any such Lender, a “Non-Consenting
Lender”),
the
Borrower may elect to replace such Non-Consenting
Lender
as
a Lender party to this Agreement, provided
that no
Default or Unmatured Default shall have occurred and be continuing at the time
of such replacement, and provided further
that,
concurrently with such replacement, another bank or other entity reasonably
satisfactory to the Borrower, the LC Issuers and the Administrative Agent shall
enter into an assignment agreement substantially in the form of Exhibit
E
in
compliance with the requirements of Section
12.3.
2.20.3 Notwithstanding
the foregoing, no extension of the Facility Termination Date pursuant to this
Section
2.20
shall
become effective as to any Lender unless (a) no Default or Unmatured Default
shall have occurred and be continuing as of the date of such extension; and
(b)
the representations and warranties in Article
V
shall be
true and correct as of the date of such extension (except to the extent that
any
such representation or warranty is expressly stated to have been made as of
a
specific date, in which case such representation or warranty shall be true
and
correct as of such specific date).
ARTICLE
III
YIELD
PROTECTION; TAXES
3.1 Yield
Protection.
If, on
or after the date of this Agreement, 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 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 or any LC Issuer with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
(i) subjects
any Lender or any applicable Lending Installation or any LC Issuer to any Taxes,
or changes the basis of taxation of payments (other than with respect to
Excluded Taxes) to any Lender or any LC Issuer in respect of its Eurodollar
Loans, Facility LCs or participations therein, or
(ii) 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
Installation or any LC Issuer (other than reserves and assessments taken into
account in determining the interest rate applicable to Eurodollar Advances),
or
(iii) imposes
any other condition the result of which is to increase the cost to any Lender
or
any applicable Lending Installation or any LC Issuer of making, funding or
maintaining its Eurodollar Loans, or of issuing or participating in Facility
LCs, or reduces any amount receivable by any Lender or any applicable Lending
Installation or any LC Issuer in connection with its Eurodollar Loans, Facility
LCs or participations therein, or requires any Lender or any applicable Lending
Installation or any LC Issuer to make any payment calculated by reference to
the
amount of Eurodollar Loans, Facility LCs or participations therein held or
interest or fees received by it, by an amount deemed material by such Lender
or
such LC Issuer, as the case may be,
and
the
result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or such LC Issuer, as the case may be, of making
or maintaining its Eurodollar Loans or Commitment or of issuing or participating
in Facility LCs, or to reduce the return received by such Lender or applicable
Lending Installation or such LC Issuer, as the case may be, in connection with
such Eurodollar Loans, Commitment, Facility LCs or participations therein,
then,
within 15 days of demand by such Lender or such LC Issuer, as the case may
be,
the Borrower shall pay such Lender or such LC Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or such LC Issuer,
as the case may be, for such increased cost or reduction in amount
received.
3.2 Changes
in Capital Adequacy Regulations.
If a
Lender or an LC Issuer determines the amount of capital required or expected
to
be maintained by such Lender or such LC Issuer, any Lending Installation of
such
Lender or such LC Issuer, or any corporation controlling such Lender or such
LC
Issuer, is increased as a result of a Change, then, within 15 days of demand
by
such Lender or such LC Issuer, the Borrower shall pay such Lender or such LC
Issuer the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender or such LC
Issuer determines is attributable to this Agreement, its Outstanding Credit
Exposure or its Commitment to make Loans and issue or participate in Facility
LCs, as the case may be, hereunder (after taking into account such Lender’s or
such LC Issuer’s policies as to capital adequacy). “Change”
means
(i) any change after the date of this Agreement in the Risk-Based Capital
Guidelines or (ii) any adoption of or change in any other law, governmental
or
quasi-governmental rule, regulation, policy, guideline, interpretation or
directive (whether or not having the force of law) after the date of this
Agreement which affects the amount of capital required or expected to be
maintained by any Lender or any LC Issuer or any Lending Installation or any
corporation controlling any Lender or any LC Issuer. “Risk-Based
Capital Guidelines”
means
(i) the risk-based capital guidelines in effect in the United States on the
date
of this Agreement, 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 date of this
Agreement.
3.3 Availability
of Types of Advances.
If (i)
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 (ii) the Required Lenders
determine that (a) deposits of a type and maturity appropriate to match fund
Eurodollar Advances are not available or (b) the interest rate applicable to
a
Type of Advance does not accurately reflect the cost of making or maintaining
such Advance, then the Administrative Agent shall suspend the availability
of
the affected Type of Advance and, in the case of clause
(i),
require
any affected Eurodollar Advances to be repaid or converted to Floating Rate
Advances, 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 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 on the date specified by the
Borrower for any reason other than default by the Lenders, 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.
3.5 Taxes.
(i)
All payments by the Borrower to or for the account of any Lender, any LC Issuer
or the Administrative Agent hereunder or under any Note or Facility LC
Application 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, any LC Issuer or the
Administrative 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, such LC Issuer or the Administrative 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 Administrative Agent the original copy of a receipt evidencing
payment thereof within 30 days after such payment is made.
(ii) In
addition, the Borrower hereby agrees to 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 Facility
LC Application or from the execution or delivery of, or otherwise with respect
to, this Agreement or any Note or Facility LC Application (“Other
Taxes”).
(iii) The
Borrower hereby agrees to indemnify the Administrative Agent, each LC Issuer
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 Administrative Agent, such LC Issuer or such Lender as a result of its
Commitment, any Loans 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 Administrative
Agent, such LC Issuer or such Lender makes demand therefor pursuant to
Section 3.6.
(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 less than ten Business Days after the date of this Agreement
(or in the case of a Non-U.S. Lender that becomes a party hereto after the
date
hereof, within 10 Business Days of the effective date of the assignment by
which
it becomes a Lender), (i) deliver to each of the Borrower and the Administrative
Agent two duly completed copies of United States Internal Revenue Service Form
W-8ECI or W-8BEN, 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, and (ii) deliver to each of the Borrower
and
the Administrative Agent a United States Internal Revenue Form W-8 or W-9,
as
the case may be, and certify that it is entitled to an exemption from
United States backup withholding tax. Each Non-U.S. Lender further undertakes
to
deliver to each of the Borrower and the Administrative 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 Administrative 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 Administrative 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 a form originally was
required to be provided), 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 Administrative 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.
(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 Administrative 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 Administrative
Agent of a change in circumstances which rendered its exemption from withholding
ineffective, or for any other reason), such Lender shall indemnify the
Administrative Agent fully for all amounts paid, directly or indirectly, by
the
Administrative Agent as tax, withholding therefor, or otherwise, including
penalties and interest, and including taxes imposed by any jurisdiction on
amounts payable to the Administrative Agent under this subsection, together
with
all costs and expenses related thereto (including attorneys’ fees and time
charges of attorneys for the Administrative Agent, which attorneys may be
employees of the Administrative 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.
To the
extent reasonably possible and upon the request of the Borrower, 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. Each Lender shall deliver a written statement of such Lender to
the
Borrower (with a copy to the Administrative 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. 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 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 Replacement
of Lenders.
If the
Borrower is required to pay any additional amount to any Lender or any
governmental authority for the account of any Lender pursuant to Section 3.5,
then
the Borrower may, at its sole expense and effort, upon notice to such Lender
and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 12.3),
all
its interests, rights and obligations under this Agreement to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided
that (i)
the Borrower shall have received the prior written consent of the Administrative
Agent and each LC Issuer, which consents shall not unrea-sonably be withheld
or
delayed, (ii) such Lender shall have received payment of an amount equal to
the
outstanding principal of its Loans and participations in Facility LCs and LC
Obligations, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts) and (iii) such assignment will result in a reduction in
payments made under Section
3.5.
A
Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
ARTICLE
IV
CONDITIONS
PRECEDENT
4.1 Initial
Credit Extension.
The
Lenders shall not be required to make the initial Credit Extension hereunder
unless the Borrower has furnished to the Administrative Agent (with sufficient
copies for the Lenders, in the case of all documents):
(i) Copies
of
the articles or certificate of incorporation of the Borrower and each Guarantor,
as well as any other information required by Section 326 of the USA PATRIOT
ACT
or necessary for the Administrative Agent or any Lender to verify the identity
of the Borrower and each Guarantor as required by Section 326 of the USA PATRIOT
Act, together with all amendments, and a certificate of existence/good standing,
as applicable, each certified by the appropriate governmental officer in its
jurisdiction of incorporation.
(ii) Copies,
certified by the Secretary or Assistant Secretary of the Borrower and each
Guarantor, of its by-laws and of its Board of Directors’ resolutions and of
resolutions or actions of any other body authorizing the execution of the Loan
Documents.
(iii) An
incumbency certificate, executed by the Secretary or Assistant Secretary of
the
Borrower and each Guarantor, which shall identify by name and title and bear
the
signatures of the Authorized Officers and any other officers of the Borrower
and
each Guarantor authorized to sign the Loan Documents, upon which certificate
the
Administrative Agent and the Lenders shall be entitled to rely until informed
of
any change in writing by the Borrower or the applicable Guarantor.
(iv) A
certificate, signed by the chief financial officer or treasurer of the Borrower,
stating that on the initial Credit Extension Date no Default or Unmatured
Default has occurred and is continuing.
(v) A
written
opinion of counsel to the Borrower and the Guarantors, addressed to the
Administrative Agent and the Lenders in the form approved by the Administrative
Agent.
(vi) Notes
payable to the order of each of the Lenders.
(vii) Written
money transfer instructions, in substantially the form of Exhibit
C,
addressed to the Administrative Agent and signed by an Authorized Officer of
the
Borrower, together with such other related money transfer authorizations as
the
Administrative Agent may have reasonably requested.
(viii) The
insurance certificate described in Section 5.18.
(ix) The
fees
due and payable in accordance with the Fee Letters.
(x) If
the
initial Credit Extension will be the issuance of a Facility LC, a properly
completed Facility LC Application.
(xi) Evidence
that the Existing Credit Agreement has been terminated, and that all amounts
outstanding thereunder have been paid in full.
(xii) 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:
(i) There
exists no Default or Unmatured Default.
(ii) 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; provided
that
this Section
4.2(ii)
shall
not apply to the representations and warranties set forth in Section
5.5,
clause
(i)
of the
first sentence of Section
5.7,
the
second sentence of Section
5.7
and
Section
5.16.
Each
Borrowing Notice or request for issuance or amendment or extension of a Facility
LC with respect to each such Credit Extension shall constitute a representation
and warranty by the Borrower that the conditions contained in Sections
4.2(i)
and
(ii)
have
been satisfied. Any Lender or any LC Issuer 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 and each Guarantor represents and warrants to the Lenders
that:
5.1 Existence
and Standing.
Each of
the Guarantors, the Borrower and the Subsidiaries of the Borrower is a
corporation, partnership (in the case of Subsidiaries only) or limited liability
company duly 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.
Each of
the Borrower and the Guarantors has the power and authority and legal right
to
execute and deliver the Loan Documents to which it is a party and to perform
its
obligations thereunder. The execution and delivery by each of the Borrower
and
each Guarantor of the Loan Documents to which it is a party and the performance
of its obligations thereunder have been duly authorized by proper corporate
proceedings, and the Loan Documents to which each of the Borrower and any
Guarantor is a party constitute legal, valid and binding obligations of the
Borrower and the Guarantors enforceable against the Borrower and the Guarantors
in accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors’
rights generally.
5.3 No Conflict;
Government Consent.
Neither
the execution or delivery by the Borrower and the Guarantors of the Loan
Documents to which it is a party, 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, any Guarantor or any of their Subsidiaries,
(ii)
the Borrower’s, any Guarantor’s or any of their Subsidiary’s articles or
certificate of incorporation, partnership agreement, certificate of partnership,
articles or certificate of organization, by-laws, or operating or other
management agreement, as the case may be, or (iii) the provisions of any
indenture, instrument or agreement to which the Borrower, any Guarantor or
any
of their Subsidiaries is a party or is subject, or by which it, or its Property,
is bound, or conflict with or constitute a default thereunder, or result in,
or
require, the creation or imposition of any Lien in, of or on the Property of
the
Borrower, any Guarantor or any such 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, any Guarantor or any of their Subsidiaries, is required to be
obtained by the Borrower, any Guarantor or any of their 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, 2004 consolidated financial statements of the Borrower and its
Subsidiaries heretofore delivered to the Lenders were prepared in accordance
with generally accepted accounting principles in effect on the date such
statements were prepared 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, 2004 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.
5.6 Taxes.
The
Borrower 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 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.
The Federal income tax liabilities of Indiana Energy, Inc., and its
Subsidiaries, a predecessor of the Parent, and SIGCORP, Inc., and its
Subsidiaries, a predecessor of the Parent, have been finally determined (whether
by reason of completed audits or the statute of limitations having run) for
all
fiscal years up to and including the fiscal years ended March 31, 2000 and
December 31, 1999, respectively. No tax Liens have been filed and no claims
are
being asserted with respect to any 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.
Except
as set forth on Schedule
5.7,
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 (i) could
reasonably be expected to have a Material Adverse Effect or (ii) seeks to
prevent, enjoin or delay the making of any Credit Extensions. Other than any
liability incident to any litigation, arbitration or proceeding which (i) could
not reasonably be expected to have a Material Adverse Effect, (ii) is disclosed
in the Form 10-K of the Parent for the fiscal year ended December 31, 2004
or
(iii) is set forth on Schedule
5.7,
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 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.
Neither
the Borrower nor any other member of the Controlled Group has incurred, or
is
reasonably expected to incur, any withdrawal liability to Multiemployer Plans
that would reasonably be expected to have a Material Adverse Effect. Each Plan
complies in all material respects with all applicable requirements of law and
regulations, no Reportable Event has occurred with respect to any Plan,
neither the Borrower nor any other member of the Controlled Group has withdrawn
from any Plan or initiated steps to do so, and no steps have been taken to
reorganize or terminate any Plan.
5.10 Accuracy
of Information.
No information, exhibit or report furnished by the Borrower or any of its
Subsidiaries to the Administrative Agent or to any Lender in connection with
the
negotiation of, or compliance with, the Loan Documents contained any material
misstatement of fact or omitted to state a material fact or any fact necessary
to make the statements contained therein not misleading.
5.11 Regulation
U.
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 other restriction hereunder.
5.12 Material
Agreements.
Neither
the Borrower nor any Subsidiary thereof 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. Neither the Borrower
nor any Subsidiary thereof is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in
(i)
any agreement 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.
5.13 Compliance
With Laws.
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 except
for any failure to comply with any of the foregoing which could not reasonably
be expected to have a Material Adverse Effect.
5.14 Ownership
of Properties.
Except
as set forth on Schedule
2,
on the
date of this Agreement, the Borrower and its Subsidiaries will have good title,
free of all Liens other than those permitted by Section 6.13,
to all
of the Property and assets reflected in the Borrower’s most recent consolidated
financial statements provided to the Administrative Agent as owned by the
Borrower and its Subsidiaries.
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. § 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 neither the execution
of this Agreement nor the making of Credit Extensions 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, except as set forth
on
Schedule
5.16,
Environmental Laws cannot reasonably be expected to have a Material Adverse
Effect. Except as set forth on Schedule
5.16,
neither
the Borrower nor any of its Subsidiaries 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,
which
non-compliance or remedial action could reasonably be expected to have a
Material Adverse Effect.
5.17 Investment
Company Act.
Neither
the Borrower nor any Subsidiary thereof 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 Insurance.
The
certificate signed by the President, Chief Financial Officer, Secretary or
Treasurer of the Borrower, that attests to the existence and adequacy of, and
summarizes, the property and casualty insurance program carried by the Borrower
with respect to itself and its Subsidiaries and that has been furnished by
the
Borrower to the Administrative Agent and the Lenders, is complete and accurate
as of the date of this Agreement. This summary includes the insurer’s or
insurers’ name(s), policy number(s), expiration date(s), amount(s) of coverage,
type(s) of coverage, exclusion(s), and deductibles. This summary also includes
similar information, and describes any reserves, relating to any self-insurance
program that is in effect.
5.19 Solvency. (i)
Immediately after the consummation of the transactions to occur on the date
hereof and immediately following the making of each Credit Extension, if any,
made on the date hereof and after giving effect to the application of the
proceeds of such Credit Extension, (a) the fair value of the assets of the
Borrower and its Subsidiaries on a consolidated basis, at a fair valuation,
will
exceed the debts and liabilities, subordinated, contingent or otherwise, of
the
Borrower and its Subsidiaries on a consolidated basis; (b) the present fair
saleable value of the property of the Borrower and its Subsidiaries on a
consolidated basis will be greater than the amount that will be required to
pay
the probable liability of the Borrower and its Subsidiaries on a consolidated
basis on their debts and other liabilities, subordinated, continent or
otherwise, as such debts and other liabilities become absolute and matured;
(c)
the Borrower and its Subsidiaries on a consolidated basis will be able to pay
their debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (d) the Borrower and
its
Subsidiaries on a consolidated basis will not have unreasonably small capital
with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted after the date
hereof.
(ii) The
Borrower does not intend to, or to permit any of its Subsidiaries to, and does
not believe that it or any of its Subsidiaries will, incur debts beyond its
ability to pay such debts as they mature, taking into account the timing of
and
amounts of cash to be received by it or any such Subsidiary and the timing
of
the amounts of cash to be payable on or in respect of its Indebtedness or the
Indebtedness of any such Subsidiary.
5.20 Public
Utility Holding Company Act.
Neither
the Borrower nor any Subsidiary is a “registered holding company” or a
“subsidiary company” of a “registered holding company”, or an “affiliate” of a
“registered holding company” or of a “subsidiary company” of a “registered
holding company”, within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
5.21 Existing
Credit Agreement.
All
indebtedness under the Existing Credit Agreement has been repaid in full, all
commitments thereunder have been terminated and such credit agreement and other
related loan documents have been terminated.
5.22 Reportable
Transaction.
The
Borrower does not intend to treat the Credit Extensions and related transactions
as being a “reportable transaction” (within the meaning of Treasury Regulation
Section 1.6011-4). In the event the Borrower determines to take any action
inconsistent with such intention, it will promptly notify the Administrative
Agent thereof.
ARTICLE
VI
COVENANTS
Until
the
Obligations are paid in full, and so long as any Commitment is outstanding,
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 the Borrower will furnish to the Lenders:
(i) Within
90
days after the close of each of its fiscal years, an unqualified audit report
certified by independent certified public accountants acceptable to the Lenders,
prepared in accordance with Agreement Accounting Principles on a consolidated
basis for the Borrower and the Guarantors, including balance sheets as of the
end of such period, related statements of income and retained earnings, and
a
consolidated statement of cash flows, accompanied by any management letter
prepared by said accountants.
(ii) Within
45
days after the close of the first three quarterly periods of each of its fiscal
years, either (i) a consolidated unaudited balance sheet as at the close of
each
such period and consolidated statements of income and retained earnings and
a
statement of cash flows for the period from the beginning of such fiscal year
to
the end of such quarter, all certified by its chief financial officer or (ii)
if
the Borrower is then a “registrant” within the meaning of Rule 1-01 of
Regulation S-X of the Securities and Exchange Commission and required to file
a
report on Form 10-Q with the Securities and Exchange Commission, a copy of
the
Borrower’s report on Form 10-Q for such quarterly period.
(iii) Together
with the financial statements required under Sections
6.1(i)
and
(ii),
a
compliance certificate in substantially the form of Exhibit
B
signed
by its Chief Financial Officer 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.
(iv) As
soon
as possible and in any event within 10 days after the Borrower knows that any
Reportable Event has occurred with respect to any Plan, a statement, signed
by
the chief financial officer or treasurer of the Borrower, describing said
Reportable Event and the action which the Borrower proposes to take with respect
thereto.
(v) 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.
(vi) Promptly
upon the furnishing thereof to the shareholders of the Borrower, copies of
all
financial statements, reports and proxy statements so furnished.
(vii) Promptly
upon the filing thereof, copies of all registration statements (other than
registration statements on Form S-8 or any successor form thereto and other
than
registration statements relating to shares to be issued under a dividend
reinvestment plan) and annual, quarterly, monthly or other regular reports
which
the Borrower or any Subsidiary files with the Securities and Exchange
Commission.
(viii) Such
other information (including non-financial information) as the Administrative
Agent or any Lender may from time to time reasonably request.
Documents
required to be delivered pursuant to clause
(i),
(ii),
(vi)
or
(vii)
above
may be delivered electronically and, if so delivered, shall be deemed to have
been delivered on the date (i) on which the Borrower posts such documents,
or
provides a link thereto, on a website on the internet at a website address
previously specified to the Administrative Agent and the Lenders; or (ii) on
which such documents are posted on the Borrower’s behalf on IntraLinks or
another relevant website, if any, to which each of the Administrative Agent
and
each Lender has access; provided
that (i)
upon request of the Administrative Agent or any Lender, the Borrower shall
deliver paper copies of such documents to the Administrative Agent or such
Lender (until a written request to cease delivering paper copies is given by
the
Administrative Agent or such Lender) and (ii) the Borrower shall notify (which
may be by facsimile or electronic mail) the Administrative Agent and each Lender
of the posting of any documents. The Administrative Agent shall have no
obligation to request the delivery of, or to maintain copies of, the documents
referred to above or to monitor compliance by the Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.
6.2 Use
of
Proceeds.
Use the
proceeds of the Credit Extensions solely for the purposes herein described.
Neither the Borrower nor any Guarantor will, nor will it permit any Subsidiary
to, use any of the proceeds of the Loans to purchase or carry any “margin stock”
(as defined in Regulation U).
6.3 Notice
of Default.
The
Borrower and each Guarantor will, and will cause each of their respective
Subsidiaries to, give notice in writing to the Lenders of the occurrence of
any
Default or Unmatured Default and of any other development, financial or
otherwise, which could reasonably be expected to have a Material Adverse Effect,
in each case promptly after any officer of the Borrower or a Guarantor obtains
knowledge thereof.
6.4 Conduct
of Business.
The
Borrower and each Guarantor will, and will cause each of their respective
Subsidiaries to, carry on and conduct its business in substantially the same
manner and in substantially the same or reasonably related fields of enterprise
as it is presently conducted 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.
6.5 Taxes.
The
Borrower and each Guarantor will, and will cause each of their respective
Subsidiaries 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 and each Guarantor will, and will cause each of their respective
Subsidiaries to, maintain with financially sound and reputable insurance
companies insurance on all their Property in such amounts 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.
(i) The
Borrower and each Guarantor will, and will cause each of their respective
Subsidiaries 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 such
noncompliance, singly or in the aggregate, could not have a Material Adverse
Effect.
(ii) Without
limiting clause
(i)
above,
the Borrower and each Guarantor will, and will cause each of their respective
Subsidiaries to, ensure that no person who owns a controlling interest in or
otherwise controls the Borrower, any Guarantor or any Subsidiary is or shall
be
(i) listed on the Specially Designated Nationals and Blocked Person List
maintained by the Office of Foreign Assets Control (“OFAC”),
Department of the Treasury, and/or any other similar lists maintained by OFAC
pursuant to any authorizing statute, Executive Order or regulation or (ii)
a
person designated under Section 1(b), (c) or (d) of Executive Order No. 13224
(September 23, 2001), any related enabling legislation or any other similar
Executive Orders.
(iii) Without
limiting clause
(i)
above,
the Borrower and each Guarantor will, and will cause each of their respective
Subsidiaries to, comply with the Bank Secrecy Act (“BSA”)
and
all other applicable anti-money laundering laws and regulations.
6.8 Maintenance
of Properties.
The
Borrower and each Guarantor will, and will cause each of their respective
Subsidiaries to, do all things necessary to maintain, preserve, protect and
keep
its Property in good repair, working order and condition, 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, except where
such failure, to maintain, singly or in the aggregate, could not have a Material
Adverse Effect.
6.9 Inspection.
The
Borrower and each Guarantor will, and will cause each of their respective
Subsidiaries to, permit the Administrative Agent and the Lenders, by their
respective representatives and agents, to inspect any of the Property, books
and
financial records of the Borrower, such Guarantor and such Subsidiaries, to
examine and make copies of the books of accounts and other financial records
of
the Borrower, such Guarantor and such Subsidiary, and to discuss the affairs,
finances and accounts of the Borrower, such Guarantor and such Subsidiary with,
and to be advised as to the same by, their respective officers at such
reasonable times and intervals as the Administrative Agent or any Lender
may designate.
6.10 Merger.
Neither
the Borrower nor any Guarantor will, nor will it permit any Subsidiary to,
merge
or consolidate with or into any other Person, except (i) a Subsidiary of the
Borrower may merge into the Borrower or a Wholly-Owned Subsidiary of the
Borrower and (ii) provided that, both prior to and immediately after giving
effect to such merger or consolidation, no Default or Unmatured Default exists,
the Borrower and any Guarantor may enter into mergers (provided
that (a)
the Borrower, or such Guarantor, as the case may be, is the surviving
corporation of any such merger or consolidation to which such Person is a party
or (b) if the Borrower or such Guarantor is not the surviving entity of such
merger or consolidation, (x) the Person into which the Borrower or such
Guarantor, as the case may be, shall be merged or formed by any such
consolidation (1) shall be a corporation organized and validly existing under
the laws of the United States or any state thereof or the District of Columbia
and (2) shall assume the Borrower’s or such Guarantor’s, as applicable,
obligations hereunder and under the Notes in an agreement or instrument
satisfactory in form and substance to the Administrative Agent and (y) the
▇▇▇▇▇’▇ Rating and the S&P Rating (each as defined in the Pricing Schedule)
of the surviving corporation in effect immediately after giving effect to such
merger or consolidation shall not be less than “Baa3” (in the case of the
▇▇▇▇▇’▇ Rating) and “BBB-” (in the case of the S&P Rating)).
6.11 Sale
of Assets.
The
Borrower will not, nor will it permit any Subsidiary of the Borrower to, lease,
sell or otherwise dispose of its Property to any other Person,
except:
(i) Sales
of
inventory in the ordinary course of business.
(ii) 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 inventory in the ordinary course of business) as
permitted by this Section during the twelve-month period ending with the month
in which any such lease, sale or other disposition occurs, do not constitute
all
or substantially all of the Property of the Borrower and its
Subsidiaries.
6.12 Investments
and Acquisitions.
The
Borrower will not, nor will it permit any Subsidiary to, make or suffer to
exist
any Investments (including without limitation, loans and advances to, and other
Investments in, Subsidiaries), or commitments therefor, or to create any
Subsidiary or to become or remain a partner in any partnership or joint venture,
or to make any Acquisition of any Person, except:
(i) Cash
Equivalent Investments.
(ii) Investments
in Subsidiaries and other Investments, in each case in existence on the date
hereof and described in Schedule
1.
(iii) Loans
and
advances by the Borrower to the Guarantors.
(iv) Investments
in Persons principally engaged in a field of enterprise engaged in by the
Borrower and its Subsidiaries on the date hereof and any other field of
enterprise substantially related, ancillary or complementary
thereto.
6.13 Liens.
Neither
the Borrower nor any Guarantor will, nor will it permit any Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Property of the
Borrower, any Guarantor or any of their Subsidiaries, except:
(i) 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.
(ii) Liens
imposed by law, such as 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, and such other carriers’
warehousemen’s and mechanics’ liens that 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.
(iii) 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.
(iv) Utility
easements, building restrictions and such other encumbrances or charges against
real property as are of a nature generally existing with respect to properties
of a similar character and which do not in any material way affect the
marketability of the same or interfere with the use thereof in the business
of
the Borrower or its Subsidiaries.
(v) Liens
existing on the date hereof and described in Schedule
2,
including extensions, renewals or replacements of any such Liens in connection
with the refinancing of any related Existing Indebtedness (without any increase
in the amount thereof or any change in the direct and contingent obligors
thereof); provided
that in
connection with the refinancing of any such Existing Indebtedness such Liens
shall extend only to the property covered by such Liens immediately prior to
such extension, renewal or replacement.
(vi) Liens
under the Mortgage Indenture on the property of SIGECO that is subject to the
Mortgage Indenture (without giving effect to any amendments thereto after the
date hereof that would expand the description of the collateral subject to
the
lien thereof).
(vii) Liens
securing Indebtedness of a Person existing on the date the Person becomes a
Subsidiary of the Borrower or Liens on assets securing Indebtedness assumed
by
the Borrower or a Subsidiary of the Borrower when such assets are acquired
by
the Borrower or a Subsidiary of the Borrower, including extensions, renewals
or
replacements of any such Liens, provided,
however,
that
(i) such Liens were not created in contemplation of such Person becoming a
Subsidiary or the acquisition of such assets and (ii) such Liens may not extend
to any other Property owned by the Borrower or any of its
Subsidiaries.
(viii) Liens
securing Indebtedness not exceeding 10% of the Borrower’s Consolidated Net Worth
in the aggregate outstanding at any time
6.14 Affiliates.
Except
for the payment of lawful dividends or the making of lawful distributions on
its
capital stock, 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 except in the ordinary course of business and pursuant to the
reasonable requirements of the Borrower’s or such Subsidiary’s business and 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
arms’-length transaction.
6.15 Leverage
Ratio.
The
Borrower will not permit the ratio, determined as of the end of each of its
fiscal quarters, of (i) the Borrower’s Consolidated Indebtedness to (ii) the
Borrower’s Consolidated Indebtedness plus
the
Borrower’s Consolidated Net Worth to be greater than .65 to 1.0.
6.16 Certain
Restrictions.
The
Borrower shall not permit any of its Subsidiaries to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any encumbrance
or restriction on the ability of any Subsidiary to (a) pay dividends or make
other distributions on its capital stock owned by the Borrower or any
Subsidiary, or pay any Indebtedness owed to the Borrower or any Subsidiary
(other than as described on Schedule
6.16
and
other customary limits imposed by corporate law and fraudulent conveyance
statutes and applicable restrictions contained in section 305(a) of the Federal
Power Act, as amended), (b) make loans or advances to the Borrower or (c)
transfer any of its assets or properties to the Borrower, except for such
encumbrances or restrictions existing by reason of or under (i) applicable
law,
(ii) this Agreement and the other Loan Documents, (iii) customary restrictions
with respect to a Subsidiary pursuant to an agreement that has been entered
into
for the sale or disposition of all or substantially all of the capital stock
of
such Subsidiary, (iv) restrictions binding on any Subsidiary on the date it
becomes a Subsidiary, provided
such
restrictions were not created in contemplation of such Person becoming a
Subsidiary or (v) restrictions set forth on Schedule
6.16.
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,
any Guarantor or any of their Subsidiaries to the Lenders or the Administrative
Agent under or in connection with this Agreement, any Credit Extension, any
other Loan Document or any certificate or information delivered in connection
with this Agreement or any other Loan Document shall be materially false on
the
date as of which made.
7.2 Nonpayment
of principal of any Loan when due, nonpayment of any Reimbursement Obligation
within one Business Day after the same becomes due, or nonpayment of interest
upon any Loan or of any facility fee, LC Fee or other obligation under any
of
the Loan Documents within five days after the same becomes due.
7.3 The
breach by the Borrower or any Guarantor of any of the terms or provisions of
Section
6.2,
6.3,
6.10,
6.11,
6.12,
6.13,
6.14,
6.15
or
6.16.
7.4 The
breach by the Borrower or any Guarantor (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 thirty
days after written notice from the Administrative Agent or any
Lender.
7.5 Failure
of the Borrower or any of its Subsidiaries or any Guarantor to pay when due
any
Indebtedness aggregating in excess of $50,000,000 (“Material
Indebtedness”);
or
the default by the Borrower or any of its Subsidiaries or any Guarantor in
the
performance (beyond the applicable grace period with respect thereto, if any)
of
any term, provision or condition contained in any agreement under which any
such
Material Indebtedness was created or is governed, or any other event shall
occur
or condition exist, the effect of which default or event is to cause, or to
permit the holder or holders of such Material Indebtedness to cause, such
Material Indebtedness to become due prior to its stated maturity; or any
Material Indebtedness of the Borrower or any of its Subsidiaries or any
Guarantor 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; or the Borrower or any of its Subsidiaries or any Guarantor
shall not pay, or admit in writing its inability to pay, its debts generally
as
they become due.
7.6 The
Borrower or any of its Subsidiaries or any Guarantor 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 other organizational action to authorize or effect any
of
the foregoing actions set forth in this Section 7.6
or (vi)
fail to contest in good faith any appointment or proceeding described in
Section 7.7.
7.7 Without
the application, approval or consent of the Borrower or any of its Subsidiaries
or any Guarantor, a receiver, trustee, examiner, liquidator or similar official
shall be appointed for the Borrower or any of its Subsidiaries or any Guarantor
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 or any Guarantor
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 or any Guarantor which, when taken together
with all other Property of the Borrower and its Subsidiaries or any Guarantor
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 or any Guarantor shall fail within 30 days
to pay, bond or otherwise discharge any judgment or order for the payment of
money in excess of $50,000,000, which is not stayed on appeal or otherwise
being
appropriately contested in good faith.
7.10 The
Unfunded Liabilities of all Single Employer Plans shall have a Material Adverse
Effect or be reasonably likely to have a Material Adverse Effect or any
Reportable Event shall occur in connection with any Plan.
7.11 The
Borrower or any other member of the Controlled Group shall have been notified
by
the sponsor of a Multiemployer Plan that it has incurred withdrawal liability
to
such Multiemployer Plan in an amount which, when aggregated with all other
amounts required to be paid to Multiemployer Plans by the Borrower or any other
member of the Controlled Group as withdrawal liability (determined as of the
date of such notification), shall have a Material Adverse Effect or be
reasonably likely to have a Material Adverse Effect.
7.12 The
Borrower or any other member of the Controlled Group shall have been notified
by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
if such reorganization or termination shall have a Material Adverse Effect
or be
reasonably likely to have a Material Adverse Effect.
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 a
Material Adverse Effect.
7.14 Any
Change in Control shall occur.
7.15 The
occurrence of any “default”, as defined in any Loan Document (other than this
Agreement) or the breach of any of the terms or provisions of any Loan Document
(other than this Agreement), which default or breach continues beyond any period
of grace therein provided.
7.16 The
obligations of any Guarantor under Article
XIII
hereof
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 of such
obligations, or any Guarantor shall deny that it has any further liability
under
such Article
XIII,
or
shall give notice to such effect.
ARTICLE
VIII
ACCELERATION,
WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration;
Facility LC Collateral Account.
(i)
If any
Default described in Section 7.6
or
7.7
occurs
with respect to the Borrower, any Guarantor or any of the Borrower’s
Subsidiaries, the commitments of the Lenders to make, renew or convert Advances
and the obligation and power of the LC Issuers to issue Facility LCs shall
automatically terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Administrative Agent,
any LC Issuer or any Lender and the Borrower will be and become thereby
unconditionally obligated, without any further notice, act or demand, to pay
to
the Administrative Agent an amount in immediately available funds, which funds
shall be held in the Facility LC Collateral Account, equal to the difference
of
(x) the amount of LC Obligations at such time, less (y) the amount on deposit
in
the Facility LC Collateral Account at such time which is free and clear of
all
rights and claims of third parties and has not been applied against the
Obligations (such difference, the “Collateral
Shortfall Amount”).
If
any other Default occurs, the Required Lenders (or the Administrative Agent
with
the consent of the Required Lenders) may (a) terminate or suspend the
obligations of the Lenders to make Loans hereunder and the obligation and power
of the LC Issuers to issue Facility LCs, 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, and (b) upon notice to the Borrower
and in addition to the continuing right to demand payment of all amounts payable
under this Agreement, make demand on the Borrower to pay, and the Borrower
will,
forthwith upon such demand and without any further notice or act, pay to the
Administrative Agent the Collateral Shortfall Amount, which funds shall be
deposited in the Facility LC Collateral Account.
(ii) If
at any
time while any Default is continuing, the Administrative Agent determines that
the Collateral Shortfall Amount at such time is greater than zero, the
Administrative Agent may make demand on the Borrower to pay, and the Borrower
will, forthwith upon such demand and without any further notice or act, pay
to
the Administrative Agent the Collateral Shortfall Amount, which funds shall
be
deposited in the Facility LC Collateral Account.
(iii) The
Administrative Agent may at any time or from time to time after funds are
deposited in the Facility LC Collateral Account, apply such funds to the payment
of the Obligations and any other amounts as shall from time to time have become
due and payable by the Borrower to the Lenders or the LC Issuers under the
Loan
Documents.
(iv) At
any
time while any Default is continuing, neither the Borrower nor any Person
claiming on behalf of or through the Borrower shall have any right to withdraw
any of the funds held in the Facility LC Collateral Account. After all of the
Obligations have been indefeasibly paid in full and the Aggregate Commitment
has
been terminated, any funds remaining in the Facility LC Collateral Account
shall
be returned by the Administrative Agent to the Borrower or paid to whomever
may
be legally entitled thereto at such time.
If,
within 30 days after acceleration of the maturity of the Obligations or
termination of the obligations of the Lenders to make Loans and the obligation
and power of the LC Issuers to issue Facility LCs 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, any Guarantor or any of the Borrower’s Subsidiaries)
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 Administrative Agent shall, by notice to the Borrower,
rescind and annul such acceleration and/or termination.
8.2 Remedies
Not Exclusive.
The
remedies of the Lenders specified in this Agreement and the other Loan Documents
shall not be exclusive and the Lenders may avail themselves of any of the
remedies provided by law as well as any equitable remedies available to the
Lenders, and each and every remedy shall be cumulative and concurrent and shall
be in addition to every other remedy now or hereafter existing at law or in
equity.
8.3 Amendments.
Subject
to the provisions of this Article
VIII,
the
Required Lenders (or the Administrative 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 the Loan
Documents or changing in any manner the rights of the Lenders or the Borrower
hereunder or waiving any Default hereunder; provided,
however, that
no such supplemental agreement shall, without the consent of each
Lender:
(i) Other
than as provided in Section
2.20,
extend
the final maturity of any Loan or extend the expiry date of any Facility LC
to a
date after the Facility Termination Date or postpone any regularly scheduled
payment of principal of any Loan or forgive all or any portion of the principal
amount of any Loan or Reimbursement Obligation, or reduce the rate or extend
the
time of payment of interest or fees on any Loan or Reimbursement
Obligation.
(ii) Reduce
the percentage specified in the definition of Required Lenders.
(iii) Other
than as provided in Section
2.20,
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 the commitment
to issue Facility LCs or permit the Borrower to assign its rights under this
Agreement.
(iv) Amend
this Section 8.3.
(v) Amend,
modify or waive Article
XIII
or
release any Guarantor from its obligations thereunder.
No
amendment of any provision of this Agreement relating to the Administrative
Agent shall be effective without the written consent of the Administrative
Agent, and no amendment of any provision relating to any LC Issuer shall be
effective without the written consent of such LC Issuer. The Administrative
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
anything to the contrary hereby, the Fee Letters may be amended or otherwise
modified with the consent of the parties thereto, without requiring the consent
of any other Lender.
8.4 Preservation
of Rights.
No
delay or omission of the Administrative Agent, any LC Issuer or any Lender
to
exercise any power or right under the Loan Documents shall impair such power
or
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 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 power or right shall not preclude other or further
exercise thereof or the exercise of any other power or right. No course of
dealing shall be binding upon the Administrative Agent or any Lender. No waiver,
amendment or other variation of the terms, conditions or provisions of the
Loan
Documents shall be valid unless in writing and signed by the Persons required
pursuant to Section
8.3,
and
then only to the extent in such writing specifically set forth.
ARTICLE
IX
GENERAL
PROVISIONS
9.1 Survival
of Representations.
All
representations and warranties of the Borrower and the Guarantors 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 LC
Issuer nor any 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 Guarantors, the Administrative Agent, the LC Issuers and the Lenders and
supersede all prior agreements and understandings among the Borrower, the
Guarantors, the Administrative Agent, the LC Issuers and the Lenders relating
to
the subject matter thereof.
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 Administrative 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 the Arrangers shall enjoy the benefits
of Sections
9.6,
9.10
and
10.11
to the
extent specifically set forth therein and each Arranger 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 Administrative Agent and the Arrangers for any
costs, internal charges and out-of-pocket expenses (including attorneys’ fees
and time charges of attorneys for the Administrative Agent and the Arrangers,
which attorneys may be employees of the Administrative Agent or the
Arrangers) paid or incurred by the Administrative Agent or the Arrangers in
connection with the preparation, negotiation, execution, delivery, syndication,
review, amendment, modification, and administration of the Loan Documents.
The
Borrower also agrees to reimburse the Administrative Agent, the Arrangers,
the
LC Issuers and the Lenders for any costs, internal charges and out-of-pocket
expenses (including attorneys’ fees and time charges of attorneys for the
Administrative Agent, the Arrangers, the LC Issuers and the Lenders, which
attorneys may be employees of the Administrative Agent, the LC Issuers or the
Lenders) paid or incurred by the Administrative Agent, the Arrangers, the LC
Issuers or any Lender in connection with the collection and enforcement of
the
Loan Documents. Expenses being reimbursed by the Borrower under this
Section include, without limitation, costs and expenses incurred in
connection with the Reports described in the following sentence. The Borrower
acknowledges that from time to time the Administrative Agent may prepare
and may distribute to the Lenders (but shall have no obligation or
duty to prepare or to distribute to the Lenders) certain audit reports (the
“Reports”)
pertaining to the Borrower’s assets for internal use by the Administrative Agent
from information furnished to it by or on behalf of the Borrower, after the
Administrative Agent has exercised its rights of inspection pursuant to this
Agreement.
(ii) The
Borrower hereby further agrees to indemnify the Administrative Agent, the
Arrangers, the LC Issuers and 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
Administrative Agent, any Arranger, any LC Issuer or any Lender is a party
thereto) 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 Credit Extension hereunder except to the extent that they are determined
in
a final non-appealable judgment by a court of competent jurisdiction to have
resulted 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 payment of the Obligations and the termination of this
Agreement.
9.7 Numbers
of Documents.
All
statements, notices, closing documents, and requests hereunder shall be
furnished to the Administrative Agent with sufficient counterparts so that
the
Administrative Agent may furnish one to each of the Lenders.
9.8 Accounting.
Except
as provided to the contrary herein, all accounting terms used herein shall
be
interpreted and all accounting determinations hereunder shall be made in
accordance with Agreement Accounting Principles.
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, the LC
Issuers and the Administrative Agent on the other hand shall be solely that
of
borrower and lender. Neither the Administrative Agent, any Arranger, any LC
Issuer nor any Lender shall have any fiduciary responsibility to the Borrower
or
any Guarantor. Neither the Administrative Agent, any Arranger, any LC Issuer
nor
any Lender undertakes any responsibility to the Borrower or any Guarantor to
review or inform the Borrower or any Guarantor of any matter in connection
with
any phase of the Borrower’s or any Guarantor’s business or operations. The
Borrower and the Guarantors agree that neither the Administrative Agent, any
Arranger, any LC Issuer nor any Lender shall have liability to the Borrower
or
any Guarantor (whether sounding in tort, contract or otherwise) for losses
suffered by the Borrower or any Guarantor 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 Administrative Agent, any Arranger, any LC Issuer nor any Lender
shall have any liability with respect to, and the Borrower and the Guarantors
hereby waive, release and agree not to ▇▇▇ for, any special, indirect or
consequential damages suffered by the Borrower or any Guarantor in connection
with, arising out of, or in any way related to the Loan Documents or the
transactions contemplated thereby.
9.11 Confidentiality.
The
Administrative Agent and each Lender agrees to hold any confidential information
which it may receive from the Borrower in connection with this Agreement in
confidence, except for disclosure (i) for purposes related to this Agreement
and
the transactions contemplated hereby to its Affiliates and to the Administrative
Agent, the LC Issuers and any other Lender and their respective Affiliates,
(ii)
for purposes related to this Agreement and the transactions contemplated hereby
to legal counsel, accountants, and other professional advisors to such Lender
or
to a Transferee, (iii) to regulatory officials, (iv) to any Person as requested
pursuant to or as required by law, regulation, or legal process, (v) to any
Person in connection with any legal proceeding to which it is a party, (vi)
to
its direct or indirect contractual counterparties in swap agreements or to
legal
counsel, accountants and other professional advisors to such counterparties,
(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 Credit Extensions hereunder. Without
limiting Section
9.4,
the
Borrower agrees that the terms of this Section
9.11
shall
set forth the entire agreement between the Borrower and each Lender (including
the Administrative Agent and the LC Issuers) with respect to any confidential
information previously or hereafter received by such Lender in connection with
this Agreement, and this Section
9.11
shall
supersede any and all prior confidentiality agreements entered into by such
Lender with respect to such confidential information. Notwithstanding anything
herein to the contrary, confidential information shall not include, and each
party to any of the Loan Documents and their respective Affiliates (and the
respective partners, directors, officers, employees, advisors, representatives
and other agents of each of the foregoing and their Affiliates) may disclose
to
any and all Persons, without limitation of any kind, (i) any information with
respect to the U.S. federal and state income tax treatment of the transactions
contemplated hereby and any facts that may be relevant to understanding such
tax
treatment, which facts shall not include for this purpose the names of the
parties or any other Person named herein, or information that would permit
identification of the parties or such other Persons, or any pricing terms or
other nonpublic business or financial information that is unrelated to such
tax
treatment or facts and (ii) all materials of any kind (including opinions or
other tax analyses) relating to such tax treatment or facts that are provided
to
any of the Persons referred to above, and it is hereby confirmed that each
of
the Persons referred to above has been authorized to make such disclosures
since
the commencement of discussions regarding the transactions contemplated hereby;
provided
that
with respect to any document or similar item that in either case contains
information concerning tax treatment or tax structure of the transactions
contemplated hereby as well as other information, this sentence shall only
apply
to such portions of the document or similar item that relate to such tax
treatment or tax structure.
9.12 Nonreliance.
Each
Lender hereby represents that it is not relying on or looking to any margin
stock (as defined in Regulation U) for the repayment of the Credit Extensions
provided for herein.
9.13 Disclosure.
The
Lenders hereby (i) acknowledge and agree that JPMCB and/or its Affiliates from
time to time may hold investments in, make other loans to or have other
relationships with the Borrower and its Affiliates and (ii) waive any liability
of JPMCB or such Affiliate of JPMCB to the Borrower or any Lender, respectively,
arising out of or resulting from such investments, loans or relationships other
than liabilities arising out of the gross negligence or willful misconduct
of
JPMCB or its Affiliates.
9.14 USA
PATRIOT ACT NOTIFICATION.
The
following notification is provided to the Borrower pursuant to Section 326
of
the USA Patriot Act of 2001, 31 U.S.C. Section 5318:
IMPORTANT
INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government
fight the funding of terrorism and money laundering activities, Federal law
requires all financial institutions to obtain, verify and record information
that identifies each person or entity that opens an account, including any
deposit account, treasury management account, loan, other extension of credit
or
other financial services product. What this means for the Borrower: When the
Borrower opens an account, if the Borrower is an individual, the Administrative
Agent and the Lenders will ask for the Borrower’s name, residential address, tax
identification number, date of birth and other information that will allow
the
Administrative Agent and the Lenders to identify the Borrower, and, if the
Borrower is not an individual, the Administrative Agent and the Lenders will
ask
for the Borrower’s name, tax identification number, business address and other
information that will allow the Administrative Agent and the Lenders to identify
the Borrower. The Administrative Agent and the Lenders may also ask, if the
Borrower is an individual, to see the Borrower’s driver’s license or other
identifying documents, and, if the Borrower is not an individual, to see the
Borrower’s legal organizational documents or other identifying
documents.
ARTICLE
X
THE
ADMINISTRATIVE 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 Administrative 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 Administrative 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 Administrative Agent shall not have any fiduciary
responsibility to any Lender by reason of this Agreement or any other Loan
Document and that the Administrative 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 Administrative Agent (i) does not hereby assume
any fiduciary duty to any of the Lenders, (ii) is a “representative” within the
meaning of Section 9-102(a)(72)(E) of the 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
Administrative 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
Administrative Agent shall have and may exercise such powers under the Loan
Documents as are specifically delegated to the Administrative Agent by the
terms
of each thereof, together with such powers as are reasonably incidental thereto.
The Administrative Agent shall have no implied 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 Administrative
Agent.
10.3 General
Immunity.
Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable to the Borrower 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 Administrative 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 Administrative 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 Administrative Agent shall have
no duty to disclose to the Lenders information that is not required to be
furnished by the Borrower to the Administrative Agent at such time, but is
voluntarily furnished by the Borrower to JPMCB (either in its capacity as
Administrative Agent or in its individual capacity).
10.5 Action
on Instructions of Lenders.
The
Administrative 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, 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
Administrative 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. The Administrative 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 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
Administrative Agent may execute any of its duties as Administrative 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 Administrative Agent shall be entitled to advice of counsel
concerning the contractual arrangement between the Administrative Agent and
the
Lenders and all matters pertaining to the Administrative Agent’s duties
hereunder and under any other Loan Document.
10.7 Reliance
on Documents; Counsel.
The
Administrative 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 Administrative Agent, which counsel may be employees of the
Administrative Agent.
10.8 Agent’s
Reimbursement and Indemnification.
The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Commitments (or, if the Commitments have been
terminated, in proportion to their Commitments immediately prior to such
termination) (i) for any amounts not reimbursed by the Borrower for which the
Administrative Agent is entitled to reimbursement by the Borrower under the
Loan
Documents, (ii) for any other expenses incurred by the Administrative 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 Administrative Agent in connection
with any dispute between the Administrative Agent and any Lender or between
two
or more of the Lenders) and (iii) 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 Administrative 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 Administrative Agent in
connection with any dispute between the Administrative 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 Administrative Agent and (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. 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
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Unmatured Default hereunder unless the
Administrative 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
Administrative Agent receives such a notice, the Administrative Agent shall
give
prompt notice thereof to the Lenders.
10.10 Rights
as a Lender.
In the
event the Administrative Agent is a Lender, the Administrative Agent shall
have
the same rights and powers hereunder and under any other Loan Document with
respect to its Commitment and its Outstanding Credit Exposure as any Lender
and
may exercise the same as though it were not the Administrative Agent, and
the term “Lender” or “Lenders” shall, at any time when the Administrative Agent
is a Lender, unless the context otherwise indicates, include the Administrative
Agent in its individual capacity. The Administrative 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, any Guarantor
or any of their Subsidiaries in which the Borrower, such Guarantor or such
Subsidiary is not restricted hereby from engaging with any other Person. The
Administrative 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
Administrative 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
Administrative 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
Administrative Agent.
The
Administrative 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 Administrative Agent or, if no successor
Administrative Agent has been appointed, forty-five days after the retiring
Agent gives notice of its intention to resign. The Administrative Agent may
be
removed at any time with or without cause by written notice received by the
Administrative 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 shall have the right to appoint, on behalf of
the
Borrower and the Lenders, a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders 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 Administrative Agent. Notwithstanding the previous
sentence, the Administrative 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 Administrative Agent hereunder. If the Administrative Agent
has
resigned or been removed and no successor Administrative Agent has been
appointed, the Lenders may perform all the duties of the Administrative 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 Administrative Agent shall be deemed to be appointed
hereunder until such successor Administrative Agent has accepted the
appointment. Any such successor Administrative Agent shall be a commercial
bank
having capital and retained earnings of at least $100,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative 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 Administrative 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 Administrative Agent
hereunder and under the other Loan Documents. In the event that there is a
successor to the Administrative Agent by merger, or the Administrative 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.
10.13 Administrative
Agent’s and Arrangers’ Fees.
The
Borrower agrees to pay to the Administrative Agent and the Arrangers, for their
own respective accounts, the fees agreed to by the Borrower, the Administrative
Agent and the Arrangers pursuant to the Fee Letters.
10.14 Delegation
to Affiliates.
The
Borrower and the Lenders agree that the Administrative 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 Administrative Agent is entitled under Articles
IX
and
X.
10.15 Co-Agents,
Documentation Agent, Syndication Agent, etc.
None of
the financial institutions identified in this Agreement as a “co-agent”,
“co-documentation agent” or “syndication agent” shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than,
with respect to those financial institutions that are Lenders, those applicable
to all Lenders as such. Without limiting the foregoing, none of such financial
institutions shall have or be deemed to have a fiduciary relationship with
any
Lender. Each Lender hereby makes the same acknowledgments with respect to such
financial institutions as it makes with respect to the Administrative 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 or any Affiliate of any
Lender to or for the credit or account of the Borrower or any Guarantor
may be offset and applied toward the payment of the Obligations owing to
such Lender, whether or not the Obligations, or any part hereof, shall then
be
due.
11.2 Ratable
Payments.
If any
Lender, whether by setoff or otherwise, has payment made to it upon its
Outstanding 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 portion of the Aggregate Outstanding Credit
Exposure held by the other Lenders so that after such purchase each Lender
will
hold its Pro Rata Share of the Aggregate Outstanding 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 Outstanding Credit Exposure. In case any such payment
is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
ARTICLE
XII
BENEFIT
OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors
and Assigns.
The
terms and provisions of the Loan Documents shall be binding upon and inure
to
the benefit of the Borrower, the Guarantors, the Lenders, the Administrative
Agent and their respective successors and assigns permitted hereby, except
that
(i) neither the Borrower nor any Guarantor shall 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 Participation must be made in compliance with Section
12.2.
The
parties to this Agreement acknowledge that clause
(ii)
of the
immediately preceding sentence relates only to absolute assignments and this
Section
12.1
does not
prohibit assignments creating security interests, including, without limitation,
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; 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
Administrative Agent may treat the Person which made any Credit Extension 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 Administrative Agent may in its discretion (but shall not be required to)
follow instructions from the Person which made any Credit Extension or which
holds any Note to direct payments relating to such Credit Extension or Note
to
another Person. Any assignee of the rights to any Credit Extension 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 Credit Extension (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 Credit
Extension.
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 owing to 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 Administrative 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
Outstanding Credit Exposure or Commitment in which such Participant has an
interest which would require consent of all of the Lenders pursuant to the
terms
of Section
8.3
or of
any other Loan Document.
12.2.3 Benefit
of Certain Provisions.
The
Borrower and each Guarantor agree 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 and each Guarantor further agree
that each Participant shall be entitled to the benefits of Sections
3.1,
3.2,
3.4,
3.5,
9.6
and
9.10
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 substantially in the form of Exhibit
D
or in
such other form as may be agreed to by the parties thereto. Each such assignment
with respect to a Purchaser which is not a Lender or an Affiliate of a Lender
shall be in an aggregate amount not less than $5,000,000. The amount of the
assignment shall be based on the Commitment or Outstanding Credit Exposure
(if
the Commitment has been terminated) 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.
12.3.2 Consents.
The
consent of the Borrower shall be required prior to an assignment becoming
effective unless the Purchaser is a Lender or an Affiliate of a Lender,
provided that
the
consent of the Borrower shall not be required if a Default has occurred and
is
continuing. The consent of the Administrative Agent and the LC Issuers shall
be
required prior to an assignment becoming effective. 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 Administrative Agent of an assignment, together with any
consents required by Sections
12.3.1
and
12.3.2,
and
(ii) payment of a $3,500 fee to the Administrative Agent for processing such
assignment (unless such fee is waived by the Administrative Agent), such
assignment shall become effective on the effective date specified in such
assignment. The assignment shall contain a representation by the Purchaser
to
the effect that none of the consideration used to make the purchase of the
Commitment and Outstanding Credit Exposure under the applicable assignment
agreement constitutes “plan assets” as defined under ERISA and that the rights
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 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
assigned to such Purchaser without any further consent or action by the
Borrower, the Lenders or the Administrative Agent. In the case of an assignment
covering all of the assigning Lender’s rights 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 survive payment of the Obligations
and termination of the applicable agreement. 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 Administrative Agent and the Borrower shall make
appropriate arrangements so that new Notes or, as appropriate, replacement
Notes
are issued to such transferor Lender and new Notes or, as appropriate,
replacement Notes, are issued to such Purchaser, in each case in principal
amounts reflecting their respective Commitments, as adjusted pursuant to such
assignment.
12.3.4 Register.
The
Administrative Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at one of its offices in Chicago, Illinois a copy
of
each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments
of,
and principal amounts of the Outstanding Credit Exposure of, each Lender
pursuant to the terms hereof from time to time (the “Register”).
The
entries in the Register shall be conclusive, and the Borrower, the
Administrative 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 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, including
without limitation any information contained in any Reports; provided
that
each Transferee and prospective Transferee agrees to be bound by Section
9.11
of this
Agreement.
12.5 Tax
Treatment.
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
GUARANTY
13.1 Guaranty.
For
valuable consideration, the receipt of which is hereby acknowledged, and to
induce the Lenders and the LC Issuers to make Credit Extensions to the Borrower,
each Guarantor hereby absolutely and unconditionally, and jointly and severally,
guarantees prompt payment when due, whether at stated maturity, upon
acceleration or otherwise, and at all times thereafter, of any and all
Obligations of the Borrower to the Administrative Agent, the Lenders, the LC
Issuers and any holder of a Note, or any of them, under or with respect to
the
Loan Documents, whether for principal, interest, fees, expenses or otherwise,
in
each case howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become due
(collectively, the “Guaranteed
Obligations”).
Any
term or provision of this Article
XIII
to the
contrary notwithstanding, the aggregate maximum amount of the Guaranteed
Obligations for which each Guarantor shall be liable shall not exceed the
maximum amount for which such Guarantor can be liable without rendering this
Agreement or any other Loan Document as it relates to such Guarantor, voidable
under applicable law relating to fraudulent conveyance or fraudulent
transfer.
13.2 Waivers.
Each
Guarantor waives notice of the acceptance of this guaranty and of the extension
or continuation of the Guaranteed Obligations or any part thereof. Each
Guarantor further waives presentment, protest, notice or demand made on the
Borrower or action or delinquency in respect of the Guaranteed Obligations
or
any part thereof, including any right to require the Administrative Agent or
the
Lenders to ▇▇▇ the Borrower, any other guarantor or any other Person obligated
with respect to the Guaranteed Obligations or any part thereof, or otherwise
to
enforce payment thereof against any collateral securing the Guaranteed
Obligations or any part thereof, provided
that if
at any time any payment of any portion of the Guaranteed Obligations is
rescinded or must otherwise be restored or returned upon the insolvency,
bankruptcy or reorganization of the Borrower or otherwise, each Guarantor’s
obligations hereunder with respect to such payment shall be reinstated at such
time as though such payment had not been made and whether or not the
Administrative Agent or the Lenders are in possession of this guaranty. The
Administrative Agent, the LC Issuers and the Lenders shall have no obligation
to
disclose or discuss with any Guarantor their assessments of the financial
condition of the Borrower.
13.3 Guaranty
Absolute.
This
guaranty is a guaranty of payment and not of collection, is a primary obligation
of each Guarantor and not merely one of surety, and the validity and
enforceability of this guaranty shall be absolute and unconditional irrespective
of, and shall not be impaired or affected by any of the following: (a) any
extension, modification or renewal of, or indulgence with respect to, or
substitutions for, the Guaranteed Obligations or any part thereof or any
agreement relating thereto at any time; (b) any failure or omission to enforce
any right, power or remedy with respect to the Guaranteed Obligations or any
part thereof or any agreement relating thereto, or any collateral; (c) any
waiver of any right, power or remedy with respect to the Guaranteed Obligations
or any part thereof or any agreement relating thereto or with respect to any
collateral; (d) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any collateral,
any other guaranties with respect to the Guaranteed Obligations or any part
thereof, or any other obligation of any Person with respect to the Guaranteed
Obligations or any part thereof; (e) the enforceability or validity of the
Guaranteed Obligations or any part thereof or the genuineness, enforceability
or
validity of any agreement relating thereto or with respect to any collateral;
(f) the application of payments received from any source to the payment of
obligations other than the Guaranteed Obligations, any part thereof or amounts
which are not covered by this guaranty even though the Administrative Agent,
the
LC Issuers and the Lenders might lawfully have elected to apply such payments
to
any part or all of the Guaranteed Obligations or to amounts which are not
covered by this guaranty; (g) any change in the ownership of the Borrower or
the
insolvency, bankruptcy or any other change in the legal status of the Borrower;
(h) the change in or the imposition of any law, decree, regulation or other
governmental act which does or might impair, delay or in any way affect the
validity, enforceability or the payment when due of the Guaranteed Obligations;
(i) the failure of any Guarantor or the Borrower to maintain in full force,
validity or effect or to obtain or renew when required all governmental and
other approvals, licenses or consents required in connection with the Guaranteed
Obligations or this guaranty, or to take any other action required in connection
with the performance of all obligations pursuant to the Guaranteed Obligations
or this guaranty; (j) the existence of any claim, setoff or other rights which
any Guarantor may have at any time against the Borrower or any other Person
in
connection herewith or an unrelated transaction; (k) without limiting the
foregoing, all defenses based on suretyship or impairment of collateral; or
(l)
any other circumstance, whether or not similar to any of the foregoing, which
could constitute a defense to a guarantor, including all defenses based on
suretyship or impairment of collateral; all whether or not any Guarantor shall
have had notice or knowledge of any act or omission referred to in the foregoing
clauses
(a)
through
(l)
of this
Section. It is agreed that each Guarantor’s liability hereunder is several and
independent of any other guaranties or other obligations not arising under
this
Article
XIII
at any
time in effect with respect to the Guaranteed Obligations or any part thereof
and that each Guarantor’s liability hereunder may be enforced regardless of the
existence, validity, enforcement or non-enforcement of any such other guaranties
or other obligations not arising under this Article
XIII
or any
provision of any applicable law or regulation purporting to prohibit payment
by
the Borrower of the Guaranteed Obligations in the manner agreed upon by the
Borrower and the Administrative Agent, the LC Issuers and the
Lenders.
13.4 Acceleration.
Each
Guarantor agrees that, as between such Guarantor on the one hand, and the
Lenders, the LC Issuers and the Administrative Agent, on the other hand, the
obligations of the Borrower guaranteed under this Article
XIII
may be
declared to be forthwith due and payable, or may be deemed automatically to
have
been accelerated, as provided in Section
8.1
hereof
for purposes of this Article XIII,
notwithstanding any stay, injunction or other prohibition (whether in a
bankruptcy proceeding affecting the Borrower or otherwise) preventing such
declaration as against the Borrower and that, in the event of such declaration
or automatic acceleration, such obligations (whether or not due and payable
by
the Borrower) shall forthwith become due and payable by such Guarantor for
purposes of this Article
XIII.
13.5 Marshaling;
Reinstatement.
None of
the Lenders nor the LC Issuers nor the Administrative Agent nor any Person
acting for or on behalf of the Lenders, the LC Issuers or the Administrative
Agent shall have any obligation to marshal any assets in favor of any Guarantor
or against or in payment of any or all of the Guaranteed Obligations. If any
Guarantor, the Borrower or any other guarantor of all or any part of the
Guaranteed Obligations makes a payment or payments to any Lender, any LC Issuer
or the Administrative Agent, or any Lender, any LC Issuer or the Administrative
Agent receives any proceeds of collateral, which payment or payments or any
part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside and/or required to be repaid to the Borrower, any Guarantor, such
other guarantor or any other Person, or their respective estates, trustees,
receivers or any other party, including, without limitation, the Guarantors,
under any bankruptcy law, state or federal law, common law or equitable cause,
then, to the extent of such payment or repayment, the part of the Guaranteed
Obligations which has been paid, reduced or satisfied by such amount shall
be
reinstated and continued in full force and effect as of the time immediately
preceding such initial payment, reduction or satisfaction.
13.6 Delay
of Subrogation.
Notwithstanding any payment made by or for the account of any Guarantor pursuant
to this Article
XIII,
no
Guarantor shall be subrogated to any right of the Administrative Agent, any
LC
Issuer or any Lender, or have any right to obtain reimbursement from the
Borrower, until such time as the Administrative Agent and each Lender shall
have
received final payment in cash of the full amount of the Guaranteed
Obligations.
ARTICLE
XIV
NOTICES
14.1 Notices.
Except
as otherwise permitted by Section 2.13
with
respect to borrowing notices, all notices, requests and other communications
to
any party hereunder shall be in writing (including facsimile transmission or,
subject to Section
14.2,
electronic mail or posting on a website) and shall be given to such party at
(i)
in the case of the Borrower or the Administrative Agent, its address, facsimile
number or electronic mail address set forth on Schedule
14.1
or at
such other address, facsimile number or electronic mail address as such party
may hereafter specify for the purpose by notice to the other parties hereto
and (ii) in the case of any Lender, at the address, facsimile number or
electronic mail address set forth in its Administrative Questionnaire or such
other address, facsimile number or electronic mail address as such Lender may
hereafter specify for such purpose by notice to the Borrower and the
Administrative Agent. Subject to the last paragraph of Section
6.1,
each
such notice, request or other communication shall be effective (i) if given
by
facsimile transmission, when transmitted to the facsimile number specified
in
this Section and confirmation of receipt is received, (ii) if given by
mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, or (iii) if given by any other
means, when delivered (or, in the case of electronic transmission, received)
at
the address specified in this Section; provided that
notices to the Administrative Agent under Article
II
shall
not be effective until received.
14.2 Limited
Use of Electronic Mail.
Electronic mail and internet and intranet websites may be used to distribute
routine communications, such as financial statements and other information
as
provided in Section
6.1,
and to
distribute Loan Documents for execution by the parties thereto, but not for
purposes of other notices hereunder.
14.3 Effectiveness
of Facsimile Documents and Signatures.
Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness
of
any such document and signature shall, subject to applicable law, have the
same
force and effect as a manually-signed original and shall be binding on the
Borrower, the Administrative Agent, the LC Issuers and the Lenders. The
Administrative Agent may also require that any such documents and signatures
be
confirmed by a manually-signed original thereof; provided
that the
failure to request or deliver the same shall not limit the effectiveness of
any
facsimile document or signature.
ARTICLE
XV
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 Guarantors,
the Administrative Agent, the LC Issuers and the Lenders and each party has
notified the Administrative Agent by facsimile transmission or telephone that
it
has taken such action.
ARTICLE
XVI
CHOICE
OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
16.1 CHOICE
OF LAW.
THE
LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF LAW
PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING
735 ILCS 105/5-1 ET SEQ., BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW
PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
16.2 CONSENT
TO JURISDICTION.
EACH OF
THE BORROWER AND EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN
CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
ANY
LOAN DOCUMENTS, AND THE BORROWER AND EACH GUARANTOR HEREBY IRREVOCABLY AGREE
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVE 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 ADMINISTRATIVE AGENT, ANY LC ISSUER OR ANY LENDER TO
BRING PROCEEDINGS AGAINST THE BORROWER OR ANY GUARANTOR IN THE COURTS OF ANY
OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER OR ANY GUARANTOR
AGAINST THE ADMINISTRATIVE AGENT, ANY LC ISSUER OR ANY LENDER, OR ANY AFFILIATE
OF THE ADMINISTRATIVE AGENT, ANY LC ISSUER 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 CHICAGO, ILLINOIS
.
16.3 WAIVER
OF JURY TRIAL.
THE
BORROWER, EACH GUARANTOR, THE ADMINISTRATIVE AGENT, EACH LC ISSUER 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]
1.1
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IN
WITNESS WHEREOF, the Borrower, the Guarantors, the Lenders, the LC Issuers,
the
Syndication Agent and the Administrative Agent have executed this Agreement
as
of the date first above written.
VECTREN
UTILITY HOLDINGS, INC.,
as the
Borrower
By:/s/
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title:
Vice President and Treasurer
INDIANA
GAS COMPANY, INC.,
as
Guarantor
By:/s/
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title:
Vice President and Treasurer
SOUTHERN
INDIANA GAS AND ELECTRIC COMPANY,
as
Guarantor
By:/s/
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title:
Vice President and Treasurer
VECTREN
ENERGY DELIVERY OF OHIO, INC.,
as
Guarantor
By:/s/
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title:
Vice President and Treasurer
JPMORGAN
CHASE BANK, N.A.,
Individually, as Administrative Agent and as an LC Issuer
By:/s/
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title:
Managing Director
LASALLE
BANK NATIONAL ASSOCIATION,
Individually,
as Syndication Agent and as an LC Issuer
By:/s/
▇▇▇▇ ▇
▇▇▇▇▇▇
Name:
▇▇▇▇ ▇ ▇▇▇▇▇▇
Title:
First Vice President
WACHOVIA
BANK, N.A.
By:/s/
▇▇▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice
President
FIFTH
THIRD BANK
By:/s/
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Senior Vice President
MIZUHO
CORPORATE BANK, LTD.
By:/s/
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Deputy General Manager
UNION
BANK OF CALIFORNIA, N.A.
By:/s/
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Vice President
U.S.
BANK NATIONAL ASSOCIATION
By:/s/
▇▇▇▇▇
▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇
Title:
Vice President
BANK
OF AMERICA, N.A.
By:/s/
▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Vice President
REGIONS
BANK
By:/s/
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Title:
Vice President
NATIONAL
CITY BANK, INDIANA
By:/s/
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Vice President
THE
BANK OF NEW YORK
By:/s/
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Vice President
OLD
NATIONAL BANK
By:/s/
▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Vice President
INTEGRA
BANK NATIONAL ASSOCIATION
By:/s/
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Senior Vice President
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VUHI
Credit Agreement
|
PRICING
SCHEDULE
|
Pricing
|
Level
I Status
|
Level
II Status
|
Level
III Status
|
Level
IV Status
|
Level
V Status
|
Level
VI Status
|
|
Applicable
Margin for Eurodollar Advances
|
0.230%
|
0.270%
|
0.350%
|
0.425%
|
0.500%
|
0.800%
|
|
Applicable
Margin for Floating Rate Advances
|
0.00%
|
0.00%
|
0.00%
|
0.00%
|
0.00%
|
0.00%
|
|
Applicable
Fee Rate
|
0.07%
|
0.08%
|
0.10%
|
0.125%
|
0.15%
|
0.20%
|
In
addition, at any time that
the
Aggregate Outstanding Credit Exposure exceeds 50% of the Aggregate
Commitment,
then
the Applicable Margin for Floating Rate Advances and Eurodollar Advances
shall
be increased by 0.10%.
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 ▇▇▇▇▇’▇ 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 ▇▇▇▇▇’▇ 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 ▇▇▇▇▇’▇
Rating is Baa1 or better and 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
▇▇▇▇▇’▇ Rating is Baa2 or better and 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 ▇▇▇▇▇’▇ Rating is Baa3 or better and 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.
“▇▇▇▇▇’▇
Rating”
means,
at any time, the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. and
then in effect with respect to the Borrower’s senior unsecured long-term debt
securities without third-party credit enhancement.
“Rating”
means the S&P Rating or the ▇▇▇▇▇’▇ Rating.
“S&P
Rating”
means,
at any time, the credit rating issued by Standard and Poor’s Rating Services, a
division of The McGraw Hill Companies, Inc., 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 ▇▇▇▇▇’▇ Rating or no
S&P Rating, but has a Rating, the Status shall be determined based on the
Rating that is then in effect. If at any time the Borrower has no ▇▇▇▇▇’▇ Rating
and has no S&P Rating, Level VI Status shall exist. If the Borrower is split
rated and the rating differential is two credit rating levels or more, then
the
intermediate credit rating at the midpoint (or, if there is no midpoint, the
higher of the two credit ratings) shall apply.
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t
|
SCHEDULE
I
COMMITMENTS
|
Lender
|
Commitment
|
|
|
|
|
JPMorgan
Chase Bank, N.A.
|
$50,000,000
|
|
LaSalle
Bank National Association
|
$50,000,000
|
|
Wachovia
Bank, N.A.
|
$50,000,000
|
|
Fifth
Third Bank
|
$35,000,000
|
|
Mizuho
Corporate Bank, Ltd.
|
$35,000,000
|
|
Union
Bank of California, N.A.
|
$70,000,000
|
|
US
Bank National Association
|
$35,000,000
|
|
Bank
of America, N.A.
|
$50,000,000
|
|
Regions
Bank
|
$30,000,000
|
|
National
City Bank, Indiana
|
$40,000,000
|
|
The
Bank of New York
|
$35,000,000
|
|
Old
National
|
$20,000,000
|
|
Integra
Bank National Association
|
$15,000,000
|
|
Total
|
$515,000,000
|