EXHIBIT B-1
CREDIT AGREEMENT
dated as of , 2000
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among
AMERICAN TRANSMISSION COMPANY LLC,
VARIOUS FINANCIAL INSTITUTIONS
and
BANK ONE, NA,
as Agent
CREDIT AGREEMENT
This Credit Agreement, dated as of , 2000, is among
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American Transmission Company LLC, a Wisconsin limited liability company, the
Lenders and Bank One, NA, a national banking association having its principal
office in Chicago, Illinois, as Lender, as LC Issuer and as Agent. The parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
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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 Subsidiary (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.
"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.
"Agent" means Bank One 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 Agent appointed pursuant to Article X.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as reduced from time to time pursuant to the terms hereof.
"Aggregate Outstanding Credit Exposure" means, at any time, the
aggregate of the Outstanding Credit Exposure 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.
"Alliant" means Alliant Energy Corporation.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Corporate Base Rate for such day and (ii) the sum
of the Federal Funds Effective Rate for such day plus 0.5% per annum.
"Applicable Fee Rate" means 0.09% per annum.
"Applicable LC Fee Rate" means 0.30% per annum.
"Applicable Margin" means 0.30% per annum.
"Article" means an article of this Agreement unless another document
is specifically referenced.
"Authorized Officer" means any of the Chief Executive Officer, the
President, or any Vice President of the Borrower, acting singly.
"Available Aggregate Commitment" means, at any time, the Aggregate
Commitment then in effect minus the Aggregate Outstanding Credit Exposure at
such time.
"Bank One" means Bank One, NA, a national banking association having
its principal office in Chicago, Illinois, in its individual capacity, and its
successors.
"Borrower" means American Transmission Company LLC, a Wisconsin
limited liability company, and its successors and permitted assigns.
"Borrowing Date" means a date on which a Ratable Advance is made
hereunder.
"Borrowing Notice" is defined in Section 2.2.3.
"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 and New York for the conduct of
substantially all of their commercial lending activities, interbank wire
transfers can be made on the Fedwire system and dealings in U.S. 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
for the conduct of substantially all of their commercial lending activities and
interbank wire transfers can be made on the Fedwire system.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with generally accepted 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
generally accepted 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" is defined in Section 3.2.
"Change in Control" means any Person or group (within the meaning of
Rule 13d-5 under the Securities and Exchange Act of 1934) other than one or any
combination of: Wisconsin Public Power Inc.; Wisconsin Power and Light Company;
Wisconsin Public Power Incorporated; or ATC Management Company Inc. shall be or
become the beneficial owner (within the meaning of Rule 13d-3 under the
Securities and Exchange Act of 1934) of more than [20%] of the issued and
outstanding equity interests of the Borrower.
"Closing Date" means the date first above written.
"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 Ratable Loans to, and participate in Facility LCs issued upon the
application of, the Borrower in an aggregate amount not exceeding the amount set
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forth opposite its signature below or as set forth in any Lender Assignment
relating to any assignment that has become effective pursuant to Section 12.3.2,
as such amount may be modified from time to time pursuant to the terms hereof.
"Contingent Obligation" of a Person means any agreement, undertaking
or arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or the obligations of any such Person as general
partner of a partnership with respect to the liabilities of the partnership.
"Conversion/Continuation Notice" is defined in Section 2.2.4.
"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.
"Corporate Base Rate" means a rate per annum equal to the corporate
base rate or prime rate of interest announced by Bank One or by its parent, Bank
One Corporation, from time to time, changing when and as said corporate base
rate or prime rate changes.
"Credit Extension" means the making of a Ratable Advance or the
issuance of a Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for a Ratable Advance
or the issuance date for a Facility LC.
"Credit Parties" means the Borrower and, for so long as the Guaranty
continues, the Guarantor.
"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,
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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 Base Rate" means the rate determined by the Agent to be
the rate at which Bank One or one of its Affiliate banks 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 Bank One's relevant
Eurodollar Ratable Loan.
"Eurodollar Ratable Advance" means a Ratable Advance which bears
interest at a Eurodollar Rate requested by the Borrower pursuant to Section 2.2.
"Eurodollar Ratable Loan" means a Ratable Loan which bears interest at
a Eurodollar Rate requested by the Borrower pursuant to Section 2.2.
"Eurodollar Rate" means, with respect to a Eurodollar Ratable Advance
for the relevant Interest Period, the sum of (i) the quotient of (a) the
Eurodollar Base Rate applicable to such Interest Period, divided by (b) one
minus the Reserve Requirement (expressed as a decimal) applicable to such
Interest Period, plus (ii) the Applicable Margin.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or (ii) the jurisdiction
in which the Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Facility Fee" is defined in Section 2.4.
"Facility LC" is defined in Section 2.16.1.
"Facility LC Application" is defined in Section 2.16.3.
"Facility LC Collateral Account" is defined in Section 2.16.11.
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"Facility Termination Date" means , 2001 or any earlier date
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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 Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"FERC" means the Federal Energy Regulatory Commission.
"Fixed Rate" means the Eurodollar Rate.
"Fixed Rate Advance" means a Ratable Advance which bears interest at a
Fixed Rate.
"Fixed Rate Loan" means a Loan which bears interest at a Fixed Rate.
"Floating Rate Advance" means a Ratable Advance which, except as
otherwise provided in Section 2.8, bears interest at the Alternate Base Rate.
"Floating Rate Loan" means a Loan which, except as otherwise provided
in Section 2.8, bears interest at the Alternate Base Rate.
"Guarantor" means Alliant Energy Corporation.
"Guaranty" means a Guaranty substantially in the form of Exhibit I
issued by Alliant Energy Corporation, amended or modified and in effect from
time to time.
"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 of such Person in respect of
Indebtedness of any other Person, (viii) Operating Lease Obligations and (ix)
any other obligation for borrowed money or other financial accommodation which
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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 a Eurodollar Advance, a
period of one, two, three or six months commencing on a Business Day selected by
the Borrower pursuant to this Agreement or, if available to all Lenders, such
other period agreed to by the Borrower and the Agent. 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 a 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 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.
"LC Fee" is defined in Section 2.16.4.
"LC Issuer" means Bank One (or any subsidiary or affiliate of Bank One
designated by Bank One) in its capacity as issuer 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 of all Reimbursement Obligations
at such time.
"LC Payment Date" is defined in Section 2.16.5.
"Lender Assignment" is defined in Section 12.3.1.
"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 or the Agent,
the office, branch, subsidiary or affiliate of such Lender or the Agent listed
on the signature pages hereof or on a Schedule or otherwise selected by such
Lender or the Agent pursuant to Section 2.15.
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"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other pledge and 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, any loan made by such Lender
pursuant to Article II (or, in the case of a loan made pursuant to Section 2.2,
any conversion or continuation thereof).
"Loan Documents" means this Agreement, any Notes issued pursuant to
Section 2.10, the Facility LC Applications and the Guaranty.
["Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Guarantor and its Subsidiaries taken as a whole, (ii) the
ability of the Guarantor or the Borrower to perform its obligations under the
Loan Documents to which it is a party, or (iii) the validity or enforceability
of any of the Loan Documents or the rights or remedies of the Agent, the LC
Issuer or the Lenders thereunder.]
"Material Indebtedness" means Indebtedness with respect to the
Borrower in an aggregate amount exceeding [$500,000].
"Modify" and "Modification" are defined in Section 2.16.1.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Notes" means, collectively, all of the Ratable Notes which may be
issued hereunder, and "Note" means any one of the Notes.
"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 Agent, the LC Issuer or any
indemnified party arising under the Loan Documents.
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"Operating Lease" of a Person means any lease of Property (other than
a Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
"Operating Lease Obligations" means, as at any date of determination,
the amount obtained by aggregating the present values, determined in the case of
each particular Operating Lease by applying a discount rate (which discount rate
shall not be greater than 10%) from the date on which each fixed lease payment
is due under such Operating Lease to such date of determination, of all fixed
lease payments due under all Operating Leases of the Borrower and its
Subsidiaries.
"Other Taxes" is defined in 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.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each calendar quarter.
"Permitted Acquisition" means an Acquisition (i) which has been
recommended or approved by the board of directors or other governing body of the
Person that is the object of such Acquisition, (ii) which occurs when no Default
or Unmatured Default exists or will result therefrom, (iii) after giving effect
to which no Default or Unmatured Default will exist on a pro forma basis
(assuming that such Acquisition had occurred on the last day of the fiscal
quarter most recently ended from the date which is the later of January 1, 2001
and one year prior to the date of such Acquisition), and (iv) which is of a
Person in the same general line of business as the Borrower and its
Subsidiaries.
"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 member of the Controlled Group may
have any liability.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Pro Rata Share" means, with respect to a Lender, a percentage equal
to such Lender's Commitment divided by the Aggregate Commitment.
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"Purchasers" is defined in Section 12.3.1.
"Ratable Advance" means a borrowing hereunder (i) made by the Lenders
on the same Borrowing Date, or (ii) converted or continued by the Lenders on the
same date of conversion or continuation, consisting, in either case, of the
aggregate amount of the several Ratable Loans of the same Type and, in the case
of Eurodollar Ratable Loans, for the same Interest Period.
"Ratable Loan" means a Loan made by a Lender pursuant to Section 2.2
hereof.
"Ratable Note" means any promissory note issued at the request of a
Lender pursuant to Section 2.10 to evidence its Ratable Loans in the form of
Exhibit E hereto.
"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 2.16 to reimburse the
LC Issuer for amounts paid by the LC Issuer in respect of any one or more
drawings under Facility LCs.
"Rentals" of a Person means the aggregate fixed amounts payable by
such Person under any Operating Lease.
"Required Lenders" means Lenders in the aggregate having at least
66-K% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66-K% 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.
"Response Date" is defined in Section 2.17.
"Risk-Based Capital Guidelines" is defined in Section 3.2.
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"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.
"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 (x) 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 (y) 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)(x) above.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes.
"Transferee" is defined in Section 12.4.
"Type" means with respect to any Ratable Advance, its nature as a
Floating Rate Advance or a Eurodollar Advance.
"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,
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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.
"Year 2000 Issues" means anticipated costs, problems and uncertainties
associated with the inability of certain computer applications to effectively
handle data including dates on and after January 1, 2000, as such inability
affects the business, operations and financial condition of the Borrower and its
Subsidiaries and of the Borrower's and its Subsidiaries' material customers,
suppliers and vendors.
The foregoing definitions shall be equally applicable to both the singular and
plural forms of the defined terms.
ARTICLE II
THE CREDITS
1.1. The Facility. From and including the Closing Date and prior to
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the Facility Termination Date, (a) 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;
and (b) the LC Issuer agrees to issue Facility LCs on the terms and conditions
set forth in this Agreement.
2.1.1. Amount of Facility. In no event may the Aggregate Outstanding
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Credit Exposure exceed the Aggregate Commitment.
2.1.2. Availability of Facility. Subject to the terms of this
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Agreement, the facility is available from the date hereof to the Facility
Termination Date, and the Borrower may borrow, repay and reborrow at any time
prior to the Facility Termination Date. The Commitments to lend hereunder shall
expire on the Facility Termination Date.
2.1.3. Repayment of Facility. The Aggregate Outstanding Credit
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Exposure and all other unpaid Obligations shall be paid in full by the Borrower
on the Facility Termination Date.
2.2. Ratable Advances.
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2.2.1. Ratable Advances. Each Ratable Advance hereunder shall consist
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of Loans made from the several Lenders ratably in proportion to the ratio that
their respective Commitments bear to the Aggregate Commitment.
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2.2.2. Types of Ratable Advances. The Ratable Advances may be Floating
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Rate Advances or Eurodollar Ratable Advances, or a combination thereof, selected
by the Borrower in accordance with Section 2.2.3.
2.2.3. Method of Selecting Types and Interest Periods for Ratable
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Advances. The Borrower shall select the Type of Ratable Advance and, in the case
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of each Eurodollar Ratable Advance, the Interest Period applicable thereto, from
time to time. The Borrower shall give the Agent irrevocable notice (a "Borrowing
Notice") not later than [10:00 A.M.] (Chicago time) at least one Business Day
before the Borrowing Date of each Floating Rate Advance and [AT LEAST THREE
BUSINESS DAYS] before the Borrowing Date for each Eurodollar Ratable Advance. A
Borrowing Notice shall specify:
(i) the Borrowing Date, which shall be a Business Day, of
such Ratable Advance,
(ii) the aggregate amount of such Ratable Advance,
(iii) the Type of Ratable Advance selected, and
(iv) in the case of each Eurodollar Ratable Advance, the
Interest Period applicable thereto (which may not end after the
scheduled Facility Termination Date).
2.2.4. Conversion and Continuation of Outstanding Ratable Advances.
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Floating Rate Advances shall continue as Floating Rate Advances unless and until
such Floating Rate Advances are either converted into Eurodollar Ratable
Advances in accordance with this Section 2.2.4 or are repaid in accordance with
Section 2.6. Each Eurodollar Ratable Advance shall continue as a Eurodollar
Ratable Advance until the end of the then applicable Interest Period therefor,
at which time such Eurodollar Ratable Advance shall be automatically converted
into a Floating Rate Advance unless (x) such Eurodollar Ratable Advance is or
was repaid in accordance with Section 2.6 or (y) the Borrower shall have given
the Agent a Conversion/Continuation Notice requesting that, at the end of such
Interest Period, such Eurodollar Ratable Advance continue as a Eurodollar
Ratable Advance for the same or another Interest Period. Subject to Section 2.5,
the Borrower may elect from time to time to convert all or any part of a
Floating Rate Advance into a Eurodollar Ratable Advance. The Borrower shall give
the Agent irrevocable notice (a "Conversion/Continuation Notice") of each
conversion of a Floating Rate Advance into a Eurodollar Ratable Advance, or
continuation of a Eurodollar Ratable 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,
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(ii) the aggregate amount and Type of the Ratable Advance which
is to be converted or continued, and
(iii) the amount of the Ratable Advance which is to be converted
into or continued as a Eurodollar Ratable Advance and the
duration of the Interest Period applicable thereto.
2.3. Method of Borrowing. Not later than noon (Chicago time) on each
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Borrowing Date, each Lender shall make available its Loan or Loans in funds
immediately available in Chicago to the Agent at its address specified pursuant
to Article XIII. The Agent will make the funds so received from the Lenders
available to the Borrower at the Agent's aforesaid address.
2.4. Facility Fee; Reductions in Aggregate Commitment. The Borrower
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agrees to pay to the 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
on the average daily Aggregate Commitment ("Facility Fee") from the date hereof
to and including the Facility Termination Date, payable on each Payment Date and
on the Facility Termination Date. 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' written notice to
the Agent, which notice shall specify the amount of any such reduction,
provided, however, that the amount of the Aggregate Commitment may not be
reduced below 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 Loans hereunder.
2.5. Minimum Amount of Each Advance. Each Eurodollar Ratable Advance
------------------------------
shall be in the minimum amount of $1,000,000 (and in multiples of $100,000 if in
excess thereof), and each Floating Rate Advance shall be in the minimum amount
of $500,000 (and in multiples of $100,000 if in excess thereof). The Borrower
shall not request a Fixed Rate Advance if, after giving effect to the requested
Fixed Rate Advance, more than six separate Fixed Rate Advances would be
outstanding.
2.6. 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 $500,000 or any integral multiple of $100,000 in
excess thereof, any portion of the outstanding Floating Rate Advances upon one
Business Day's prior notice to the Agent. The Borrower may from time to time
pay, subject to the payment of any funding indemnification amounts required by
Section 3.4 but without penalty or premium, all outstanding Eurodollar Ratable
Advances or, in a minimum aggregate amount of $1,000,000 or any integral
multiple of $100,000 in excess thereof, any portion of the outstanding
Eurodollar Ratable Advances upon three Business Days' prior notice to the Agent.
14
2.7. 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 Ratable Advance is made or is converted from a
Eurodollar Ratable Advance into a Floating Rate Advance pursuant to Section
2.2.4 to but excluding the date it becomes due or is converted into a Eurodollar
Ratable Advance pursuant to Section 2.2.4, at a rate per annum equal to the
Alternate Base Rate for such day. Changes in the rate of interest on that
portion of any Ratable Advance maintained as a Floating Rate Advance will take
effect simultaneously with each change in the Alternate Base Rate. Each Fixed
Rate Advance shall bear interest on the outstanding principal amount thereof
from and including the first day of the Interest Period applicable thereto to
(but not including) the last day of such Interest Period at the interest rate
determined as applicable to such Fixed Rate Advance.
2.8. Rates Applicable After Default. Notwithstanding anything to the
------------------------------
contrary contained in Section 2.2.3 or Section 2.2.4, 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 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that no
Ratable Advance may be made as, converted into or continued as a Eurodollar
Ratable 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 8.2
requiring unanimous consent of the Lenders to changes in interest rates),
declare that (i) each Fixed Rate Advance shall bear interest for the remainder
of the applicable Interest Period at the Alternate Base Rate in effect from time
to time plus 2% per annum and (ii) each Floating Rate Advance shall bear
interest at a rate per annum equal to the Alternate Base 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 Agent or any
Lender.
2.9. Method of Payment. All payments of the Obligations hereunder
-----------------
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Agent at the Agent's address specified pursuant to
Article XIII, or at any other Lending Installation of the Agent specified in
writing by the Agent to the Borrower, by noon (local time) on the date when due
and shall (except in the case of Reimbursement Obligations for which the LC
Issuer has not been fully indemnified by the Lenders, or as specifically
required hereunder) be applied ratably by the Agent among the Lenders[, provided
that payments shall be deemed received at the time the Agent is furnished with a
Federal wire reference number relating to the payment of the Obligations.] Each
payment delivered to the Agent for the account of any Lender shall be delivered
promptly by the Agent to such Lender in the same type of funds that the Agent
received at its address specified pursuant to Article XIII or at any Lending
15
Installation specified in a notice received by the Agent from such Lender. The
Agent is hereby authorized to charge the account of the Borrower maintained with
Bank One for each payment of principal, interest, Reimbursement Obligations and
fees as it becomes due hereunder. Each reference to the Agent in this Section
2.9 shall also be deemed to refer, and shall apply equally, to the LC Issuer, in
the case of payments required to be made by the Borrower to the LC Issuer
pursuant to 2.16.6.
2.10. Noteless Agreement; Evidence of Indebtedness. (i) Each Lender
--------------------------------------------
shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each
Loan made by such Lender from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(ii) The Agent shall also maintain accounts in which it will record
(a) the amount of each Loan made hereunder, the Type thereof and the Interest
Period with respect thereto, (b) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder,
(c) the original stated amount of each Facility LC and the amount of LC
Obligations outstanding at any time, and (d) the amount of any sum received by
the Agent hereunder from the Borrower and each Lender's share thereof.
(iii) The entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be prima facie evidence of the existence and
amounts of the Obligations therein recorded; provided, however, that the failure
of the Agent or any Lender to maintain such accounts or any error therein shall
not in any manner affect the obligation of the Borrower to repay the Obligations
in accordance with their terms.
(iv) Any Lender may request that its Ratable Loans be evidenced by
Ratable Notes. In such event, the Borrower shall prepare, execute and deliver to
such Lender a Ratable Note payable to the order of such Lender in a form
supplied by the Agent. Thereafter, the Loans evidenced by such Note and interest
thereon shall at all times (including after any assignment pursuant to Section
12.3) be represented by a Note payable to the order of the payee named therein
or any assignee pursuant to Section 12.3, except to the extent that any such
Lender or assignee subsequently returns any such Note for cancellation and
requests that such Loans once again be evidenced as described in paragraphs (i)
and (ii) above.
2.11. Telephonic Notices. The Borrower hereby authorizes the Lenders
------------------
and the Agent to extend, convert or continue Ratable Advances, effect selections
of Types of Ratable Advances and to transfer funds based on telephonic notices
made by any person or persons listed on Exhibit F as such Exhibit F may be
updated from time to time in a writing signed by an Authorized Officer, it being
understood that the foregoing authorization is specifically intended to allow
Borrowing Notices and Conversion/Continuation Notices to be given
telephonically. The Borrower agrees to deliver promptly to the Agent a written
confirmation, if such confirmation is requested by the Agent or any Lender, of
16
each telephonic notice signed by an Authorized Officer. If the written
confirmation differs in any material respect from the action taken by the Agent
and the Lenders, the records of the Agent and the Lenders shall govern absent
manifest error.
2.12. 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
the Floating Rate Advance is prepaid, whether due to acceleration or otherwise,
and at maturity. Interest accrued on that portion of the outstanding principal
amount of any Floating Rate Advance converted into a Eurodollar Ratable Advance
on a day other than a Payment Date shall be payable on the date of conversion.
Interest accrued on each Fixed Rate Advance shall be payable on the last day of
its applicable Interest Period, on any date on which such Fixed Rate Advance is
prepaid, whether by acceleration or otherwise, and at maturity. Interest accrued
on each Fixed Rate Advance having an Interest Period longer than three months
shall also be payable on the last day of each three-month interval during such
Interest Period. Interest, Facility Fees and LC Fees shall be calculated for
actual days elapsed on the basis of a 360-day year, except that interest on
Floating Rate Advances accruing at a rate based on the Corporate Base Rate shall
be computed on the basis of a 365- or 366-day year, as applicable. Interest
shall be payable for the day a Ratable Advance is made but not for the day of
any payment on the amount paid if payment is received prior to noon (local time)
at the place of payment. If any payment of principal of or interest on a Ratable
Advance shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest in connection with such payment.
2.13. Notification of Ratable Advances, Interest Rates, Prepayments
-------------------------------------------------------------
and Commitment Reductions. Promptly after receipt thereof, the 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 the LC Issuer, the Agent will notify
each Lender of the contents of each request for issuance of a Facility LC
hereunder. The Agent will notify each Lender and the Borrower of the interest
rate applicable to each Fixed Rate Advance promptly upon determination of such
interest rate and will give each Lender and the Borrower prompt notice of each
change in the Alternate Base Rate.
2.14. Lending Installations. Each Lender may book its Loans and its
---------------------
participation in any LC Obligations and the LC Issuer may book the Facility LCs
at any Lending Installation selected by such Lender or the 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, participation in LC Obligations and any Notes issued
hereunder shall be deemed held by each Lender or the LC Issuer, as the case may
be, for the benefit of any such Lending Installation. Each Lender and the LC
Issuer may, by written notice to the Agent and the Borrower in accordance with
Article XIII, designate replacement or additional Lending Installations through
17
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 to Facility LCs are to be
made.
2.15. Non-Receipt of Funds by the Agent. Unless the Borrower or a
---------------------------------
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three days and,
thereafter, the interest rate applicable to the relevant Loan or (y) in the case
of payment by the Borrower, the interest rate applicable to the relevant Loan.
2.16. Facility LCs.
------------
2.16.1. Issuance. The LC Issuer hereby agrees, on the terms and
--------
conditions set forth in this Agreement, to issue standby letters of credit
(each, a "Facility LC") and to renew, extend, increase, decrease or otherwise
modify each Facility LC ("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 $12,500,000 and (ii)
the Aggregate Outstanding Credit Exposure shall not exceed the Aggregate
Commitment. No Facility LC shall have an expiry date later than the earlier of
(x) the fifth Business Day prior to the scheduled Facility Termination Date and
(y) one year after its issuance (provided that a Facility LC may provide for the
renewal thereof for additional periods of up to one year each).
2.16.2. Participations. Upon the issuance or Modification by the
--------------
LC Issuer of a Facility LC in accordance with this Section 2.16, the 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 the LC Issuer, a participation in such Facility LC
(and each Modification thereof) and the related LC Obligations in proportion to
its Pro Rata Share.
2.16.3. Notice. Subject to Section 2.16.1, the Borrower shall
------
give the LC Issuer notice prior to 10:00 a.m. (Chicago time) at least three
Business Days prior to the proposed date of issuance or Modification of each
18
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, the LC Issuer shall
promptly notify the Agent, and the 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 the LC Issuer of any
Facility LC shall, in addition to the conditions precedent set forth in Article
IV (the satisfaction of which the LC Issuer shall have no duty to ascertain), be
subject to the conditions precedent that such Facility LC shall be satisfactory
to the 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 the 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.
2.16.4. LC Fees. The Borrower shall pay to the Agent, for the
-------
account of the Lenders ratably in accordance with their respective Pro Rata
Shares, with respect to each Facility LC, a letter of credit fee at a per annum
rate equal to the Applicable LC Fee Rate in effect from time to time on the
undrawn stated amount available under such standby Facility LC, such fee to be
payable in arrears on each Payment Date (each such fee described in this
sentence "LC Fee"). The Borrower shall also pay to the 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 the 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 the LC Issuer's
standard schedule for such charges as in effect from time to time.
2.16.5. 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 shall notify the Agent and the Agent shall promptly
notify the Borrower and each other Lender as to the amount to be paid by the LC
Issuer as a result of such demand and the proposed payment date (the "LC Payment
Date"). The responsibility of the 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. The LC
Issuer shall endeavor to exercise the same care in the issuance and
administration of the Facility LCs 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 the 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 the LC Issuer
on demand for (i) such Lender's Pro Rata Share of the amount of each payment
made by the LC Issuer under each Facility LC to the extent such amount is not
reimbursed by the Borrower pursuant to Section 2.16.6 below, plus (ii) interest
on the foregoing amount to be reimbursed by such Lender, for each day from the
date of the LC Issuer's demand for such reimbursement (or, if such demand is
19
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.
2.16.6. Reimbursement by Borrower. The Borrower shall be
-------------------------
irrevocably and unconditionally obligated to reimburse the LC Issuer on or
before the applicable LC Payment Date for any amounts to be paid by the LC
Issuer upon any drawing under any Facility LC, without presentment, demand,
protest or other formalities of any kind [so long as such request for a drawing
substantially complies with the Facility LC]; 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 the 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) the
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 the 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. The 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 the LC Issuer,
but only to the extent such Lender has made payment to the LC Issuer in respect
of such Facility LC pursuant to Section 2.16.5.
2.16.7. Obligations Absolute. Subject to Section 2.16.6, the
--------------------
Borrower's obligations under this Section 2.16 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 the LC Issuer, any Lender or any beneficiary of a Facility LC. The
Borrower further agrees with the LC Issuer and the Lenders that the LC Issuer
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
claims or defenses whatsoever of the Borrower or of any of its Affiliates
against the beneficiary of any Facility LC or any such transferee. The LC Issuer
shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
20
transmitted, in connection with any Facility LC. The Borrower agrees that any
action taken or omitted by the 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 the LC Issuer or any Lender under any liability to the Borrower.
Nothing in this Section 2.16.7 is intended to limit the right of the Borrower to
make a claim against the LC Issuer for damages as contemplated by the proviso to
the first sentence of Section 2.16.6.
2.16.8. Actions of LC Issuer. The 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 reasonably 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 the LC Issuer. The 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 2.16, the 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.
2.16.9. Indemnification. The Borrower hereby agrees to indemnify
---------------
and hold harmless each Lender, the LC Issuer and the 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, the LC
Issuer or the Agent may incur (or which may be claimed against such Lender, the
LC Issuer or the 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 the 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 Issuer 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 THE 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 THE LC ISSUER, EVIDENCING THE APPOINTMENT OF SUCH SUCCESSOR
BENEFICIARY]; provided that the Borrower shall not be required to indemnify any
Lender, the LC Issuer or the Agent for any claims, damages, losses, liabilities,
costs or expenses to the extent, but only to the extent, caused by (x) the
21
willful misconduct or gross negligence of the LC Issuer in determining whether a
request presented under any Facility LC complied with the terms of such Facility
LC, (y) the 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 or (z) disputes, not involving the Borrower, among the
Lenders, LC Issuer or Agent relating to a Facility LC. Nothing in this Section
2.16.9 is intended to limit the obligations of the Borrower under any other
provision of this Agreement.
2.16.10. Lenders' Indemnification. Each Lender shall, ratably in
------------------------
accordance with its Pro Rata Share, indemnify the 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 the 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 2.16 or any action taken or omitted by such indemnitees hereunder.
2.16.11. Facility LC Collateral Account. The Borrower agrees that
------------------------------
it will, upon the request of the Agent or the Required Lenders and until the
final expiration date of any Facility LC and thereafter as long as any amount is
payable to the LC Issuer or the Lenders in respect of any Facility LC, maintain
a special collateral account [(TO BE FUNDED ONLY IN ACCORDANCE WITH SECTION
8.1)] pursuant to arrangements satisfactory to the Agent (the "Facility LC
Collateral Account") at the Agent's office at the address specified pursuant to
Article XIII, in the name of such Borrower but under the sole dominion and
control of the 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 Agent, on behalf of and for the
ratable benefit of the Lenders and the LC Issuer, 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 Agent will invest
any funds on deposit from time to time in the Facility LC Collateral Account in
certificates of deposit of Bank One having a maturity not exceeding 30 days.
Nothing in this Section 2.16.11 shall either obligate the Agent to require the
Borrower to deposit any funds in the Facility LC Collateral Account or limit the
right of the Agent to release any funds held in the Facility LC Collateral
Account in each case other than as required by Section 8.1.
2.16.12. Rights as a Lender. In its capacity as a Lender, the LC
------------------
Issuer shall have the same rights and obligations as any other Lender.
22
ARTICLE III
YIELD PROTECTION; TAXES
1.2. 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 the LC Issuer with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
(1) subjects any Lender or any applicable Lending Installation or the
LC Issuer to any Taxes, or changes the basis of taxation of payments (other than
with respect to Excluded Taxes) to any Lender or the LC Issuer in respect of its
Fixed Rate Loans, Facility LCs or participations therein, or
(2) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Lender or the LC
Issuer or any applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest rate applicable to
Eurodollar Advances), or
(3) imposes any other condition the result of which is to increase the
cost to any Lender or any applicable Lending Installation or the LC Issuer of
making, funding or maintaining its Fixed Rate Loans or of issuing or
participating in Facility LCs or reduces any amount receivable by any Lender or
any applicable Lending Installation or the LC Issuer in connection with its
Fixed Rate Loans, Facility LCs or participations therein, or requires any Lender
or any applicable Lending Installation or the LC Issuer to make any payment
calculated by reference to the amount of Fixed Rate Loans, Facility LCs or
participations therein held or interest received by it, by an amount deemed
material by such Lender or the 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 the LC Issuer, as the case may be, of making or
maintaining its Fixed Rate Loans or Commitment or of issuing or participating in
Facility LCs or to reduce the return received by such Lender or applicable
Lending Installation in connection with such Fixed Rate Loans, Commitment,
Facility LCs or participations therein then, within 15 days of demand by such
Lender or the LC Issuer, as the case may be, the Borrower shall pay such Lender
such additional amount or amounts as will compensate such Lender or the LC
Issuer, as the case may be, for such increased cost or reduction in amount
received.
1.3. Changes in Capital Adequacy Regulations. If a Lender or the LC
---------------------------------------
Issuer determines the amount of capital required or expected to be maintained by
such Lender or the LC Issuer, any Lending Installation of such Lender or any
23
corporation controlling such Lender or the LC Issuer is increased as a result of
a Change, then, within 15 days of demand by such Lender or the LC Issuer, the
Borrower shall pay such Lender the amount necessary to compensate for any
shortfall in the rate of return on the portion of such increased capital which
such Lender reasonably 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 the LC Issuer's policies as to capital adequacy). The
Agent agrees to notify the Borrower of any Change within 60 days after the Agent
becomes aware of such Change. "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 Lending Installation
or any corporation controlling any Lender or the 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.
1.4. Availability of Types of Ratable Advances. If (x) any Lender
-----------------------------------------
determines that maintenance of its Eurodollar Ratable Loans at a suitable
Lending Installation would violate any applicable law, rule, regulation, or
directive, whether or not having the force of law, or if (y) the Required
Lenders determine that (i) deposits of a type and maturity appropriate to match
fund Eurodollar Ratable Advances are not available or (ii) the interest rate
applicable to Eurodollar Ratable Advances does not accurately reflect the cost
of making or maintaining Eurodollar Ratable Advances, then the Agent shall (a)
in the case of clause (x) above, suspend the availability of Eurodollar Ratable
Advances and require any affected Eurodollar Ratable Advances to be repaid or
converted to Floating Rate Advances, subject to the payment of any funding
indemnification amounts required by Section 3.4, and (b) in the case of clause
(y) above, suspend the availability of Eurodollar Ratable Advances and require
any affected Eurodollar Ratable Advances to be repaid or converted to Floating
Rate Advances, subject to the payment of any funding indemnification amounts
required by Section 3.4.
1.5. Funding Indemnification. If any payment of a Fixed Rate 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 Fixed Rate
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 Fixed Rate Advance.
24
1.6. Taxes. (i) All payments by the Borrower to or for the account of
-----
any Lender or the 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, the LC Issuer or the Agent, (a) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 3.5) such Lender, the LC Issuer or the Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (b) the Borrower shall make such deductions, (c) the
Borrower shall pay the full amount deducted to the relevant authority in
accordance with applicable law and (d) the Borrower shall furnish to the Agent
the original copy of a receipt evidencing payment thereof within 30 days after
such payment is made.
(1) 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").
(2) The Borrower hereby agrees to indemnify the Agent, the 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 Agent, the LC Issuer or such Lender and any liability
(including penalties, interest and expenses other than penalties, interest or
expenses caused by action or inaction of the Agent, LC Issuer or Lender) arising
therefrom or with respect thereto relating to this Agreement. Payments due under
this indemnification shall be made within 30 days of the date the Agent, the LC
Issuer or such Lender makes demand therefor pursuant to Section 3.6.
(3) 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, (i)
deliver to each of the Borrower and the Agent two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, 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 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 Agent (x) renewals
or additional copies of such form (or any successor form) on or before the date
that such form expires or becomes obsolete, and (y) after the occurrence of any
event requiring a change in the most recent forms so delivered by it, such
additional forms or amendments thereto as may be reasonably requested by the
Borrower or the Agent. All forms or amendments described in the preceding
sentence shall certify that such Lender is entitled to receive payments under
this Agreement without
25
deduction or withholding of any United States federal income taxes, unless an
event (including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form or amendment with
respect to it and such Lender advises the Borrower and the Agent that it is not
capable of receiving payments without any deduction or withholding of United
States federal income tax.
(4) 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.
(5) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty shall deliver to
the Borrower (with a copy to the Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without withholding or at
a reduced rate.
(6) If the U.S. Internal Revenue Service or any other governmental
authority of the United States or any other country or any political subdivision
thereof asserts a claim that the Agent did not properly withhold tax from
amounts paid to or for the account of any Lender (because the appropriate form
was not delivered or properly completed, because such Lender failed to notify
the Agent of a change in circumstances which rendered its exemption from
withholding ineffective, or for any other reason), such Lender shall indemnify
the Agent [AND BORROWER] fully for all amounts paid, directly or indirectly, by
the Agent [AND BORROWER] as tax, withholding therefor, or otherwise, including
penalties and interest, and including taxes imposed by any jurisdiction on
amounts payable to the Agent under this subsection, together with all costs and
expenses related thereto (including attorneys fees and time charges of attorneys
for the Agent, which attorneys may be employees of the Agent). The obligations
of the Lenders under this Section 3.5(vii) shall survive the payment of the
Obligations and termination of this Agreement.
1.7. Lender Statements; Survival of Indemnity. To the extent
----------------------------------------
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Eurodollar Ratable 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 Ratable Advances under Section 3.3, so
long as such designation is not, in the judgment of such Lender, disadvantageous
26
to such Lender. Each Lender shall deliver a written statement of such Lender to
the Borrower (with a copy to the Agent) as to the amount due, if any, under
Section 3.1, 3.2, 3.4 or 3.5. Such written statement shall set forth in
reasonable detail the calculations upon which such Lender determined such amount
and shall be final, conclusive and binding on the Borrower in the absence of
manifest error. Determination of amounts payable under such Sections in
connection with a Eurodollar Ratable Loan shall be calculated as though each
Lender funded its Eurodollar Ratable 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.
1.8. Replacement of Affected Lender. At any time any Lender is
------------------------------
affected by the circumstances described in Section 3.1, 3.2 or 3.3, the Company
may replace such Lender as a party to this Agreement with one or more other
bank(s) or financial institution(s) reasonably satisfactory to the Agent, such
bank(s) or financial institution(s) to have a Commitment or Commitments, as the
case may be, in such amounts as shall be reasonably satisfactory to the Agent
(and upon notice from the Company such Lender shall assign, without recourse or
warranty, its Commitment, its Loans, its Note and all of its other rights and
obligations hereunder to such replacement bank(s) or other financial
institution(s) for a purchase price equal to the sum of the principal amount of
the Loans so assigned, all accrued and unpaid interest thereon, its ratable
share of all accrued and unpaid commitment fees and usage fees, any amounts
payable under Section 3.4 as a result of such Lender receiving payment of any
Eurodollar Ratable Loan prior to the end of an Interest Period therefor and all
other obligations owed to such Lender hereunder).
ARTICLE IV
CONDITIONS PRECEDENT
--------------------
1.9. Initial Credit Extension. The Lenders shall not be required to
------------------------
make the initial Credit Extension hereunder unless such initial Credit Extension
occurs prior to , 2000 and the Borrower has furnished the Agent with
-----------
sufficient copies for the Lenders:
(1) Copies of the limited liability company agreement of the Borrower
and the articles or certificate of incorporation of the Guarantor together with
all amendments, and a certificate of good standing, each certified by the
appropriate governmental officer in its jurisdiction of incorporation.
27
(2) Copies, certified by the Secretary or Assistant Secretary of the
Borrower and the Guarantor of its bylaws and of its Board of Directors'
resolutions and of resolutions or actions of any other body authorizing the
execution of the Loan Documents to which the Borrower or the Guarantor is a
party.
(3) An incumbency certificate, executed by the Secretary or Assistant
Secretary of the Borrower and Guarantor, which shall identify by name and title
and bear the signatures of the Authorized Officers and any other officers of the
Borrower or the Guarantor authorized to sign the Loan Documents to which the
Borrower or the Guarantor is a party, upon which certificate the Agent and the
Lenders shall be entitled to rely until informed of any change in writing by the
Borrower or the Guarantor.
(4) A certificate, signed by the chief financial officer of the
Borrower, stating that on the initial Credit Extension Date no Default or
Unmatured Default has occurred and is continuing.
(5) A written opinion of the Borrower's counsel substantially in the
form of Exhibit A-1; and a written opinion of the Guarantor's counsel
substantially in the form of Exhibit A-2.
(6) Any Note requested by a Lender pursuant to Section 2.10 payable to
the order of each such requesting Lender.
(7) Written money transfer instructions, in substantially the form of
Exhibit D, addressed to the Agent and signed by an Authorized Officer, together
with such other related money transfer authorizations as the Agent may have
reasonably requested.
(8) This Agreement and the Guaranty.
(9) If the initial Credit Extension will be the issuance of a Facility
LC, a properly completed Facility LC Application.
(10) Copies of all filings made with, or orders issued by, FERC and
all governmental authorities in connection with the formation and financing of
the Borrower.
(11) A pro forma balance sheet as of January 1, 2001 (including a
projected consolidated balance sheet and funds flow statement and a projected
consolidated and consolidating income statement) and two year business plan for
the Borrower.
(12) Such other documents as any Lender or its counsel may have
reasonably requested.
1.10. Each Credit Extension. The Lenders shall not be required to make
---------------------
any Credit Extension unless on the applicable Credit Extension Date:
28
(1) No Default or Unmatured Default exists or will result from such
Credit Extension.
(2) The representations and warranties contained in Article V are true
and correct as of such Credit Extension Date except to the extent any such
representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty shall have been true and correct on
and as of such earlier date and except that the representation and warranty set
forth in Section 5.4 shall not be required to be true as of the date of any
conversion or continuation of any Eurodollar Ratable Loan.
(3) All legal matters incident to the making of such Credit Extension
shall be satisfactory to the Lenders and their counsel.
Each Borrowing Notice with respect to a Ratable Advance and each
request for issuance of a Facility LC 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 may require a duly completed compliance
certificate in substantially the form of Exhibit B as a condition to making a
Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower represents and warrants to the Lenders that:
1.11. Existence and Standing. Each of the Borrower and each of its
----------------------
Subsidiaries is a limited liability company, partnership (in the case of
Subsidiaries only) or corporation duly and properly incorporated or organized,
as the case may be, validly existing and (to the extent such concept applies to
such entity) in good standing under the laws of its jurisdiction of
incorporation or organization and has all requisite authority to conduct its
business in each jurisdiction in which its business is conducted.
1.12. Authorization and Validity. The Borrower 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 the Borrower of the Loan Documents to which it is a party and the performance
by the Borrower of its obligations thereunder have been duly authorized by
proper limited liability company proceedings, and each Loan Document to which
the Borrower is a party constitutes a legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally.
29
1.13. No Conflict; Government Consent. None of the execution and
-------------------------------
delivery by the Borrower of the Loan Documents to which it is a party, the
consummation of the transactions therein contemplated, or compliance with the
provisions thereof will violate (i) any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on the Borrower or any of its
Subsidiaries or (ii) the Borrower's or any of its Subsidiaries' articles or
certificate of incorporation, partnership agreement, certificate of partnership,
articles or certificate of organization, bylaws, 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 or any Subsidiary 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 or any
Subsidiary pursuant to the terms of any such indenture, instrument or agreement.
No order, consent, adjudication, approval, license, authorization, or validation
of, or filing, recording or registration with, or exemption by, or other action
in respect of any governmental or public body or authority, or any subdivision
thereof, which has not been obtained by the Borrower or any Subsidiary, is
required to be obtained by the Borrower or any Subsidiary 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.
1.14. Material Adverse Change. Since [the date of incorporation] there
-----------------------
has been no change in the business, Property, prospects, condition (financial or
otherwise) or results of operations of the Borrower which could reasonably be
expected to have a Material Adverse Effect.
1.15. Taxes. The Borrower and its Subsidiaries have filed all United
-----
States federal tax returns and all other material 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 Subsidiary, 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. 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.
1.16. Litigation and Contingent Obligations. Except as set forth on
-------------------------------------
Schedule 5.6, 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 Subsidiary which could
reasonably be expected to have a Material Adverse Effect or which 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 or (ii) is set
forth on Schedule 5.6, the Borrower has no material contingent obligations.
30
1.17. 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 nonassessable.
1.18. ERISA. Neither the Borrower nor any other members of the
-----
Controlled Group has any liability under any Plan.
1.19. Accuracy of Information. No information, exhibit or report
-----------------------
furnished by the Borrower or any Subsidiary to the Agent or 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.
1.20. 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.
1.21. Material Agreements. Neither the Borrower nor any Subsidiary is
-------------------
a party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect.
1.22. 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.
1.23. 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 6.14, to all of
the Property and assets reflected in the Borrower's most recent consolidated
financial statements provided to the Agent as owned by the Borrower and its
Subsidiaries.
1.24. 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
31
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 Environmental Laws cannot reasonably be expected to have a
Material Adverse Effect. Neither the Borrower nor any Subsidiary has received
any notice to the effect that its operations are not in material compliance with
any of the requirements of applicable Environmental Laws or are the subject of
any federal or state investigation evaluating whether any remedial action is
needed to respond to a release of any toxic or hazardous waste or substance into
the environment, which noncompliance or remedial action could reasonably be
expected to have a Material Adverse Effect.
1.25. Investment Company Act. Neither the Borrower nor any Subsidiary
----------------------
is an "investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
1.26. Year 2000. The Borrower does not anticipate that Year 2000
---------
Issues will have a Material Adverse Effect.
ARTICLE VI
COVENANTS
---------
During the term of this Agreement, unless the Required Lenders shall otherwise
consent in writing:
1.27. Financial Reporting. The Borrower will maintain, for itself and
-------------------
each Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, and furnish to the
Lenders:
(1) 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 and consolidating basis (consolidating statements
need not be certified by such accountants) for itself and its Subsidiaries,
including balance sheets as of the end of such period, related profit and loss
and reconciliation of surplus statements, and a statement of cash flows,
accompanied by (a) any management letter prepared by said accountants, and (b) a
certificate of said accountants that, in the course of their examination
necessary for their certification of the foregoing, they have obtained no
knowledge of any Default or Unmatured Default, or if, in the opinion of such
accountants, any Default or Unmatured Default shall exist, stating the nature
and status thereof.
(2) Within 45 days after the close of the first three quarterly
periods of each of its fiscal years, for itself and its Subsidiaries,
consolidated and consolidating unaudited balance sheets as at the close of each
32
such period and consolidated and consolidating profit and loss and
reconciliation of surplus statements 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.
(3) 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 Authorized Officer stating that no Default or Unmatured Default
exists, or if any Default or Unmatured Default exists, stating the nature and
status thereof.
(4) 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 Subsidiary is or may be liable to any Person as a result of the
release by the Borrower, any Subsidiary, 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 Subsidiary, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
(5) [PROMPTLY UPON THE FURNISHING THEREOF TO THE MEMBERS OF THE
BORROWER, COPIES OF ALL FINANCIAL STATEMENTS, REPORTS AND PROXY STATEMENTS SO
FURNISHED.]
(6) Promptly upon the filing thereof, copies of all registration
statements and annual, quarterly, monthly or other regular reports which the
Borrower or any Subsidiary files with the Securities and Exchange Commission,
FERC, or other governmental authority.
(7) Such other information (including nonfinancial information) as the
Agent or any Lender may from time to time reasonably request.
1.28. Use of Proceeds. The Borrower will, and will cause each
---------------
Subsidiary to, use the proceeds of the Credit Extensions for working capital and
other general corporate purposes. The Borrower will not, nor will it permit any
Subsidiary to, use any of the proceeds of the Ratable Advances to purchase or
carry any "margin stock" (as defined in Regulation U).
1.29. Notice of Default. The Borrower will give prompt notice in
-----------------
writing to the Lenders of the occurrence of any Default or Unmatured Default and
of any other development, financial or otherwise (including, without limitation,
developments with respect to Year 2000 Issues), which could reasonably be
expected to have a Material Adverse Effect.
1.30. Conduct of Business. The Borrower will, and will cause each
-------------------
Subsidiary to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted 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
33
maintain all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
1.31. Taxes. The Borrower will, and will cause each Subsidiary to,
-----
timely file complete and correct United States federal and applicable foreign,
state and local tax returns required by law and pay when due all taxes,
assessments and governmental charges and levies upon it or its 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. At any time that the Borrower or any Subsidiary
is organized as a limited liability company, each such limited liability company
will qualify for partnership tax treatment under United States federal tax law.
1.32. Insurance. The Borrower will, and will cause each Subsidiary to,
---------
maintain with financially sound and reputable insurance companies insurance on
all their Property in such amounts 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.
1.33. Compliance with Laws. The Borrower will, and will cause each
--------------------
Subsidiary to, comply in all material respects with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to which
it may be subject including, without limitation, all Environmental Laws.
1.34. Maintenance of Properties. The Borrower will, and will cause
-------------------------
each Subsidiary to, do all things necessary to maintain, preserve, protect and
keep its Property in good repair, working order and condition in all material
respects, 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.
1.35. Books and Records; Inspection. The Borrower shall, and shall
-----------------------------
cause each Subsidiary to, maintain proper books of record and account, in which
full, true and correct entries (sufficient to permit the preparation of
consolidated financial statements in conformity with GAAP) shall be made of all
financial transactions and matters involving the assets and business of the
Borrower and such Subsidiary. The Borrower will, and will cause each Subsidiary
to, permit the Agent and the Lenders, by their respective representatives and
agents, to inspect any of the Property, books and financial records of the
Borrower and each Subsidiary, to examine and make copies of the books of
accounts and other financial records of the Borrower and each Subsidiary, and to
discuss the affairs, finances and accounts of the Borrower and each Subsidiary
with, and to be advised as to the same by, their respective officers at such
reasonable times and intervals as the Agent or any Lender may designate.
1.36. Indebtedness. The Borrower will not, nor will it permit any
------------
Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
34
(1) The Loans and the Reimbursement Obligations;
(2) Indebtedness existing on the date hereof and described in Schedule
2;
(3) Capitalized Lease Obligations in an aggregate amount not to exceed
$ ;
----------
(4) Operating Lease Obligations in an aggregate amount not to exceed
$ ;
----------
provided that the sum of Capitalized Lease Obligations and Operating Lease
Obligations shall not at any time exceed $ . [TO BE DISCUSSED.]
----------
1.37. Merger. The Borrower will not, nor will it permit any Subsidiary
------
to, merge or consolidate with or into any other Person, except that (i) a
Subsidiary may merge into the Borrower or a Wholly-Owned Subsidiary, and (ii)
the Borrower may merge into another domestic corporation that assumes in writing
all Obligations of the Borrower hereunder and whose debt instruments have
received a credit rating of A- and A-3 by Standard and Poors and ▇▇▇▇▇'▇
Investors Services, respectively.
1.38. Sale of Assets. The Borrower will not, nor will it permit any
--------------
Subsidiary to, lease, sell or otherwise dispose of its Property to any other
Person, except:
(1) Sales of inventory in the ordinary course of business.
(2) 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 a
Substantial Portion of the Property of the Borrower and its Subsidiaries.
1.39. 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:
(1) Cash Equivalent Investments;
(2) Existing Investments in Subsidiaries and other Investments in
existence on the date hereof and described in Schedule 1;
35
(iii) Permitted Acquisitions; and
[(IV) THE CREATION OF SUBSIDIARIES NOT RELATING TO AN ACQUISITION.]
1.40. Liens. The Borrower will not, nor will it permit any Subsidiary
-----
to, create, incur, or suffer to exist any Lien in, of or on the Property of the
Borrower or any Subsidiary, except:
(1) 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;
(2) 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;
(3) 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;
(4) 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;
(5) Liens existing on the date hereof and described in Schedule 2; and
(6) Liens in connection with the acquisition of property by the
Borrower after the date hereof and attaching only to the property being acquired
if the Indebtedness secured thereby does not exceed the purchase price of such
property and the aggregate outstanding principal amount does not at any time
exceed $ .
----------
1.41. Year 2000. The Borrower will take and will cause each of its
---------
Subsidiaries to take all such actions as are reasonably necessary to assure that
Year 2000 Issues will not have a Material Adverse Effect.
1.42. Affiliates. The Borrower will not, and will not permit any
----------
Subsidiary to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate except in the ordinary course of business and
pursuant to the reasonable requirements of the Borrower's or such Subsidiary's
business and upon terms deemed fair and reasonable by FERC.
36
1.43. Sale of Accounts. The Borrower will not, nor will it permit any
----------------
Subsidiary to, sell or otherwise dispose of any notes receivable or accounts
receivable, with or without recourse.
1.44. Contingent Obligations. The Borrower will not, nor will it
----------------------
permit any Subsidiary to, make or suffer to exist any Contingent Obligation
(including, without limitation, any Contingent Obligation with respect to the
obligations of a Subsidiary), except (i) by endorsement of instruments for
deposit or collection in the ordinary course of business and (ii) the
Reimbursement Obligations.
1.45. Letters of Credit. The Borrower will not, nor will it permit any
-----------------
Subsidiary to, apply for or become liable upon or in respect of any letter of
credit, except for Facility LCs.
1.46. Prepayment of Other Debt. If an Unmatured Default or a Default
------------------------
has occurred and is continuing, Borrower will not, nor will it permit any
Subsidiary to, prepay any other Indebtedness.
ARTICLE VII
DEFAULTS
--------
The occurrence of any one or more of the following events shall constitute a
Default:
1.47. Any representation or warranty made or deemed made by or on
behalf of the Guarantor, the Borrower or any Subsidiary to the Lenders or the
Agent under or in connection with this Agreement or 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.
1.48. 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
obligations under any of the Loan Documents within five days after the same
becomes due.
1.49. The breach by the Borrower of any of the terms or provisions of
Article VI, Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.17 or 6.18.
1.50. The breach by the Borrower (other than a breach which
constitutes a Default under another Section of this Article VII) of any of the
terms or provisions of this Agreement which is not remedied within 30 days after
written notice from the Agent or any Lender.
37
1.51. Failure of the Guarantor, the Borrower or any Subsidiary to pay
when due any Material Indebtedness or the default by the Guarantor, the Borrower
or any Subsidiary 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 Guarantor, the Borrower or
any Subsidiary 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 Guarantor, the Borrower or any Subsidiary shall not
pay, or admit in writing its inability to pay, its debts generally as they
become due.
1.52. The Guarantor, the Borrower or any Subsidiary shall (i) have an
order for relief entered with respect to it under the Federal bankruptcy laws as
now or hereafter in effect, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment
of a receiver, custodian, trustee, examiner, liquidator or similar official for
it or any Substantial Portion of its Property, (iv) institute any proceeding
seeking an order for relief under the Federal bankruptcy laws as now or
hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or
seeking dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail to file an
answer or other pleading denying the material allegations of any such proceeding
filed against it, (v) take any corporate or partnership action to authorize or
effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail
to contest in good faith any appointment or proceeding described in Section 7.7.
1.53. Without the application, approval or consent of the Guarantor,
the Borrower or any Subsidiary, a receiver, trustee, examiner, liquidator or
similar official shall be appointed for the Guarantor, the Borrower or any
Subsidiary or any Substantial Portion of the Property of the Guarantor and its
Subsidiaries or of the Borrower and its Subsidiaries, or a proceeding described
in Section 7.6(iv) shall be instituted against the Guarantor, the Borrower or
any Subsidiary and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of 30 consecutive days.
1.54. 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 Guarantor and its Subsidiaries or the Borrower
and its Subsidiaries which, when taken together with all other Property of the
Guarantor and its Subsidiaries or of the Borrower and its Subsidiaries, as
applicable, so condemned, seized or 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.
38
1.55. The Guarantor, the Borrower or any Subsidiary shall fail within
30 days to pay, bond or otherwise discharge one or more (i) judgments or orders
for the payment of money in excess of $ , in the case of the Borrower and
-------
its Subsidiaries, or $ in the case of the Guarantor and its
----------
Subsidiaries (or, in each case, the equivalent thereof in currencies other than
U.S. dollars), in the aggregate, or (ii) nonmonetary judgments or orders which,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, which judgment(s), in any such case, is/are not stayed
on appeal or otherwise being appropriately contested in good faith.
1.56. The Borrower or any Subsidiary shall (i) be the subject of any
proceeding or investigation pertaining to the release by the Borrower, any
Subsidiary 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), could reasonably be expected to
have a Material Adverse Effect.
1.57. Any Change in Control shall occur.
1.58. 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.
1.59. The Guaranty shall fail to remain in full force or effect other
than pursuant to its terms or any action shall be taken to discontinue or to
assert the invalidity or unenforceability of the Guaranty, or the Guarantor
shall fail to comply with any of the terms or provisions of the Guaranty and
such failure is not remedied within five days after written notice to the
Guarantor from the Agent or any Lender, or the Guarantor shall deny that it has
any further liability under the Guaranty, or shall give notice to such effect.
1.60. FERC, any court, government or governmental agency shall enact
legislation or issue a decision the effect of which causes a Material Adverse
Effect.
39
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
----------------------------------------------
1.61. Acceleration; Facility LC Collateral Account. (i) If any Default
--------------------------------------------
described in Section 7.6 or 7.7 occurs with respect to the Borrower, the
obligations of the Lenders to make Loans hereunder and the obligation and power
of the LC Issuer 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 Agent, the 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 Agent an amount in immediately available
funds, which funds shall be held in the Facility LC Collateral Account, equal to
the excess of (x) the amount of LC Obligations at such time over (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 and is continuing, the Required Lenders (or the 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 Issuer to issue Facility LCs, or declare the Obligations to be due and
payable, or both, whereupon such obligations shall be terminated or suspended
and/or 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 Agent the
Collateral Shortfall Amount, which funds shall be deposited in the Facility LC
Collateral Account.
(ii) If at any time while any Default exists, the Agent determines
that the Collateral Shortfall Amount at such time is greater than zero, the
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 Agent the
Collateral Shortfall Amount, which funds shall be deposited in the Facility LC
Collateral Account.
(iii) The Agent, upon consent of the Required Lenders, 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 Issuer 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
40
Collateral Account shall be returned by the Agent to the Borrower or paid to
whomever may be legally entitled thereto at such time.
(v) If, within 30 days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
hereunder and the obligation and power of the LC Issuer to issue Facility LCs as
a result of any Default (other than any Default as described in Section 7.6 or
7.7 with respect to the Borrower) and before any judgment or decree for the
payment of the Obligations due shall have been obtained or entered, the Required
Lenders (in their sole discretion) shall so direct, the Agent shall, by notice
to the Borrower, rescind and annul such acceleration and/or termination.
1.62. Amendments. Subject to the provisions of this Article VIII, the
----------
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to 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 all of the Lenders:
(1) 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 thereof or reduce the rate or extend the time of
payment of interest or fees thereon or any Reimbursement Obligation related
thereto.
(2) Reduce the percentage specified in the definition of Required
Lenders.
(3) Extend the Facility Termination Date or reduce the amount of, or
extend the payment date for, the payments required under Section 2.1.4 or
increase the amount of the Aggregate Commitment, the Commitment of any Lender
hereunder or the commitment to issue Facility LCs, or permit the Borrower to
assign its rights under this Agreement.
(4) Amend this Section 8.2.
(5) Release the Guarantor from its obligations under the Guaranty
other than pursuant to the terms thereof.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent, and no amendment of any
provision relating to the LC Issuer shall be effective without the written
consent of the LC Issuer. The Agent may waive payment of the fee required under
Section 12.3.2 without obtaining the consent of any other party to this
Agreement.
41
1.63. Preservation of Rights. No delay or omission of the Lenders, the
----------------------
LC Issuer or the Agent to exercise any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of a Credit Extension notwithstanding the
existence of a Default or the inability of the Borrower to satisfy the
conditions precedent to such Credit Extension shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Lenders required pursuant to Section 8.2, and then only to the
extent in such writing specifically set forth. All remedies contained in the
Loan Documents or by law afforded shall be cumulative and all shall be available
to the Agent, the LC Issuer and the Lenders until the Obligations have been paid
in full.
ARTICLE IX
GENERAL PROVISIONS
------------------
1.64. Survival of Representations. All representations and warranties
---------------------------
of the Borrower contained in this Agreement shall survive the making of the
Credit Extensions herein contemplated.
1.65. Governmental Regulation. Anything contained in this Agreement to
-----------------------
the contrary notwithstanding, neither the 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.
1.66. 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.
1.67. Entire Agreement. The Loan Documents embody the entire agreement
----------------
and understanding among the Borrower, the Agent, the LC Issuer and the Lenders
and supersede all prior agreements and understandings among the Borrower, the
Agent, the LC Issuer and the Lenders relating to the subject matter thereof
other than documentation of the fees described in Section 2.16.4 and Section
10.13.
1.68. Several Obligations; Benefits of this Agreement. The respective
-----------------------------------------------
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns.
42
1.69. Expenses; Indemnification. (i) The Borrower shall reimburse the
-------------------------
Agent for any costs, internal charges and out-of-pocket expenses (including
attorneys' fees and time charges of attorneys for the Agent, which attorneys may
be employees of the Agent) paid or incurred by the Agent in connection with the
preparation, negotiation, execution, delivery, syndication, amendment and
modification of the Loan Documents and the review and administration of the Loan
Documents in connection with any request made by the Borrower. The Borrower also
agrees to reimburse the Agent, the LC Issuer and the Lenders for any costs,
internal charges and out-of-pocket expenses (including attorneys' fees and time
charges of attorneys for the Agent, the LC Issuer and the Lenders, which
attorneys may be employees of the Agent, the LC Issuer or the Lenders) paid or
incurred by the Agent, the LC Issuer or any Lender in connection with the
collection and enforcement of the Loan Documents.
(1) The Borrower hereby further agrees to indemnify the Agent, the LC
Issuer, each Lender, their respective affiliates, and each of their directors,
officers and employees against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without limitation, all expenses
of litigation or preparation therefor whether or not the Agent, any Lender or
any affiliate 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 and except for any dispute, not
involving the Borrower, among the Agent, the LC Issuer or the Lenders. The
obligations of the Borrower under this Section 9.6 shall survive the termination
of this Agreement.
1.70. Numbers of Documents. All statements, notices, closing
--------------------
documents, and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the Agent may furnish one to each of the
Lenders.
1.71. 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 generally accepted
accounting principles.
1.72. 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.
1.73. Nonliability of Lenders. The relationship between the Borrower
-----------------------
on the one hand and the Lenders, the LC Issuer and the Agent on the other hand
shall be solely that of borrower and lender. Neither the Agent, the LC Issuer
43
nor any Lender shall have any fiduciary responsibilities to the Borrower.
Neither the Agent, the LC Issuer nor any Lender undertakes any responsibility to
the Borrower to review or inform the Borrower of any matter in connection with
any phase of the Borrower's business or operations. The Borrower agrees that
neither the Agent, the LC Issuer nor any Lender shall have liability to the
Borrower (whether sounding in tort, contract or otherwise) for losses suffered
by the Borrower in connection with, arising out of, or in any way related to,
the transactions contemplated and the relationship established by the Loan
Documents, or any act, omission or event occurring in connection therewith,
unless it is determined in a final non-appealable judgment by a court of
competent jurisdiction that such losses resulted from the gross negligence or
willful misconduct of the party from which recovery is sought. Neither the
Agent, the LC Issuer nor any Lender shall have any liability with respect to,
and the Borrower hereby waives, releases and agrees not to ▇▇▇ for, any special,
indirect or consequential damages suffered by the Borrower in connection with,
arising out of, or in any way related to the Loan Documents or the transactions
contemplated thereby.
1.74. Confidentiality. Each Lender agrees to hold any confidential
---------------
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to its Affiliates and to other Lenders and
their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee, (iii) to regulatory
officials having jurisdiction over the Lenders, (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 such Lender is a party,
and (vi) permitted by Section 12.4.
1.75. Nonreliance. Each Lender hereby represents that it is not
-----------
relying on or looking to any margin stock (as defined in Regulation U of the
Board of Governors of the Federal Reserve System) for the repayment of the
Credit Extensions provided for herein.
1.76. Disclosure. The Borrower and each Lender hereby (i) acknowledge
----------
and agree that Bank One 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 Bank One or such
Affiliate of Bank One 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 Bank
One or its Affiliates.
ARTICLE X
THE AGENT
---------
44
1.77. Appointment; Nature of Relationship. Bank One, NA is hereby
-----------------------------------
appointed by each of the Lenders as its contractual representative (herein
referred to as the "Agent") hereunder and under each other Loan Document, and
each of the Lenders irrevocably authorizes the Agent to act as the contractual
representative of such Lender with the rights and duties expressly set forth
herein and in the other Loan Documents. The Agent agrees to act as such
contractual representative upon the express conditions contained in this Article
X. Notwithstanding the use of the defined term "Agent," it is expressly
understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement or any other Loan
Document and that the Agent is merely acting as the contractual representative
of the Lenders with only those duties as are expressly set forth in this
Agreement and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Agent (i) does not hereby assume any fiduciary
duties to any of the Lenders, (ii) is a "representative" of the Lenders within
the meaning of Section 9-105 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 Agent on any agency
theory or any other theory of liability for breach of fiduciary duty, all of
which claims each Lender hereby waives.
1.78. Powers. The Agent shall have and may exercise such powers under
------
the Loan Documents as are specifically delegated to the Agent by the terms of
each thereof, together with such powers as are reasonably incidental thereto.
The Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Agent.
1.79. General Immunity. Neither the Agent nor any of its directors,
----------------
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
to the extent such action or inaction is determined in a final non-appealable
judgment by a court of competent jurisdiction to have arisen from the gross
negligence or willful misconduct of such Person.
1.80. No Responsibility for Loans, Recitals, etc. Neither the Agent
------------------------------------------
nor any of its directors, officers, agents or employees shall be responsible for
or have any duty to ascertain, inquire into, or verify (a) any statement,
warranty or representation made in connection with any Loan Document or any
borrowing hereunder; (b) the performance or observance of any of the covenants
or agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Agent; (d) the existence
or possible existence of any Default or Unmatured Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith; or (f) 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
45
Agent shall have no duty to disclose to the Lenders information that is not
required to be furnished by the Borrower to the Agent at such time, but is
voluntarily furnished by the Borrower to the Agent (either in its capacity as
Agent or in its individual capacity).
1.81. Action on Instructions of Lenders. The Agent shall in all cases
---------------------------------
be fully protected in acting, or in refraining from acting, hereunder and under
any other Loan Document in accordance with written instructions signed by the
Required Lenders, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders. The Lenders hereby
acknowledge that the Agent shall be under no duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this Agreement
or any other Loan Document unless it shall be requested in writing to do so by
the Required Lenders. The Agent shall be fully justified in failing or refusing
to take any action hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction 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.
1.82. Employment of Agents and Counsel. The Agent may execute any of
--------------------------------
its duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
1.83. Reliance on Documents; Counsel. The Agent shall be entitled to
------------------------------
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
1.84. Agent's Reimbursement and Indemnification. The Lenders agree to
-----------------------------------------
reimburse and indemnify the 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 Agent is entitled to reimbursement by
the Borrower under the Loan Documents, (ii) for any other expenses incurred by
the Agent on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents
(including, without limitation, for any expenses incurred by the Agent in
connection with any dispute between the Agent and any Lender or between two or
more of the Lenders) and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the
46
transactions contemplated thereby (including, without limitation, for any such
amounts incurred by or asserted against the Agent in connection with any dispute
between the Agent and any Lender or between two or more of the Lenders), or the
enforcement of any of the terms of the Loan Documents or of any such other
documents, provided that (i) no Lender shall be liable for any of the foregoing
to the extent any of the foregoing is found in a final non-appealable judgment
by a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of the Agent 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.
1.85. Notice of Default. The Agent shall not be deemed to have
-----------------
knowledge or notice of the occurrence of any Default or Unmatured Default
hereunder unless the Agent has received written notice from a Lender or the
Borrower referring to this Agreement describing such Default or Unmatured
Default and stating that such notice is a "notice of default". In the event that
the Agent receives such a notice, the Agent shall give prompt notice thereof to
the Lenders.
1.86. Rights as a Lender. In the event the Agent is a Lender, the
------------------
Agent shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may
exercise the same as though it were not the Agent, and the term "Lender" or
"Lenders" shall, at any time when the Agent is a Lender, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or
any Subsidiary in which the Borrower or such Subsidiary is not restricted hereby
from engaging with any other Person. The Agent, in its individual capacity, is
not obligated to remain a Lender.
1.87. Lender Credit Decision. Each Lender acknowledges that it has,
----------------------
independently and without reliance upon the Agent, or any other Lender and based
on the financial statements prepared by the Borrower and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each Lender
also acknowledges that it will, independently and without reliance upon the
Agent, 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.
1.88. Successor Agent. The Agent may resign at any time by giving
---------------
written notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. The Agent may be removed at any time with or without cause
47
by written notice received by the Agent from the Required Lenders, such removal
to be effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders with the consent of the Borrower
(so long as no Default or Unmatured Default exists), which consent shall not be
unreasonably withheld or delayed, shall have the right to appoint, on behalf of
the Borrower and the Lenders, a successor Agent. If no successor Agent shall
have been so appointed by the Required Lenders within thirty days after the
resigning Agent's giving notice of its intention to resign, then the resigning
Agent may appoint, on behalf of the Borrower and the Lenders, a successor Agent.
Notwithstanding the previous sentence, the Agent may at any time without the
consent of the Borrower or any Lender, appoint any of its Affiliates which is a
commercial bank as a successor Agent hereunder. If the Agent has resigned or
been removed and no successor Agent has been appointed, the Lenders may perform
all the duties of the Agent hereunder and the Borrower shall make all payments
in respect of the Obligations to the applicable Lender and for all other
purposes shall deal directly with the Lenders. No successor Agent shall be
deemed to be appointed hereunder until such successor Agent has accepted the
appointment. Any such successor Agent shall be a commercial bank having capital
and retained earnings of at least $100,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the resigning or removed Agent. Upon the effectiveness of the
resignation or removal of the Agent, the resigning or removed Agent shall be
discharged from its duties and obligations hereunder and under the Loan
Documents. After the effectiveness of the resignation or removal of an Agent,
the provisions of this Article X shall continue in effect for the benefit of
such Agent in respect of any actions taken or omitted to be taken by it while it
was acting as the Agent hereunder and under the other Loan Documents. In the
event that there is a successor to the Agent by merger, or the Agent assigns its
duties and obligations to an Affiliate pursuant to this Section 10.12, then the
term "Corporate Base Rate" as used in this Agreement shall mean the prime rate,
base rate or other analogous rate of the new Agent.
1.89. Agent's Fee. The Borrower agrees to pay to the Agent, for its
-----------
own account, the fees agreed to by the Borrower and the Agent pursuant to the
commitment letter dated , 2000, or as otherwise agreed from time to
---------
time.
1.90. Delegation to Affiliates. The Borrower and the Lenders agree
------------------------
that the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under Articles IX and X.
48
ARTICLE XI
SETOFF; RATABLE PAYMENTS
------------------------
1.91. Setoff. In addition to, and without limitation of, any rights of
------
the Lenders under applicable law, if the Required Lenders determine that the
Borrower is insolvent, however evidenced, or any Default occurs and is
continuing, 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 may be offset and applied
toward the payment of the Obligations owing to such Lender, whether or not the
Obligations, or any part thereof, shall then be due.
1.92. 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 Credit Exposure. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their respective Pro Rata Share of the
Aggregate Outstanding Credit Exposure. In case any such payment is disturbed by
legal process, or otherwise, appropriate further adjustments shall be made.
49
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
-------------------------------------------------
1.93. Successors and Assigns. The terms and provisions of the Loan
----------------------
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (ii) any assignment by any Lender must be made in compliance
with Section 12.3. The parties to this Agreement acknowledge that clause (ii) of
this Section 12.1 relates only to absolute assignments and 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 Agent may treat
the Person which made any Loan or which holds any Note as the owner thereof for
all purposes hereof unless and until such Person complies with Section 12.3;
provided, however, that the Agent may in its discretion (but shall not be
required to) follow instructions from the Person which made any Loan or which
holds any Note to direct payments relating to such Loan or Note to another
Person. Any assignee of the rights to any Loan or any Note agrees by acceptance
of such assignment to be bound by all the terms and provisions of the Loan
Documents. Any request, authority or consent of any Person, who at the time of
making such request or giving such authority or consent is the owner of the
rights to any Loan (whether or not a Note has been issued in evidence thereof),
shall be conclusive and binding on any subsequent holder or assignee of the
rights to such Loan.
1.94. Participations.
--------------
1.94.1 Permitted Participants; Effect. Any Lender may, in
------------------------------
the ordinary course of its business and in accordance with applicable
law, at any time sell to one or more banks or other entities
("Participants") participating interests in any Outstanding Credit
Exposure of such Lender, any Note held by such Lender, any Commitment
of such Lender or any other interest of such Lender under the Loan
Documents. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan
Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, such Lender shall remain the owner of its Outstanding
Credit Exposure and the holder of any Note issued to it in evidence
thereof for all purposes under the Loan Documents, all amounts payable
by the Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrower and
the Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under the Loan
Documents.
50
1.94.2 Voting Rights. Each Lender shall retain the sole
-------------
right to approve, without the consent of any Participant, any
amendment, modification or waiver of any provision of the Loan
Documents other than any amendment, modification or waiver with
respect to any Credit Extension or Commitment in which such
Participant has an interest which forgives principal, interest, fees
or any Reimbursement Obligations or reduces the interest rate or fees
payable with respect to any such Loan or Commitment, extends the
Facility Termination Date, postpones any date fixed for any
regularly-scheduled payment of principal of, or interest or fees on,
any such Credit Extension or Commitment, releases any guarantor of any
such Credit Extension or releases all or substantially all of the
collateral, if any, securing any such Credit Extension.
1.94.3 Benefit of Setoff. The Borrower agrees that each
-----------------
Participant shall be deemed to have the right of setoff provided in
Section 11.1 in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the
Loan Documents, provided that each Lender shall retain the right of
setoff provided in Section 11.1 with respect to the amount of
participating interests sold to each Participant. The Lenders agree to
share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each
Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with Section 11.2 as
if each Participant were a Lender.
1.95. Assignments.
-----------
1.95.1 Permitted Assignments. Any Lender may, in the
---------------------
ordinary course of its business and in accordance with applicable law,
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 ("Lender Assignment"). Such Lender Assignment shall be
substantially in the form of Exhibit C or in such other form as may be
agreed to by the parties thereto. The consent of the Borrower and the
Agent shall be required prior to an assignment becoming effective with
respect to a Purchaser which is not a Lender or an Affiliate thereof;
provided, however, that if a Default has occurred and is continuing,
the consent of the Borrower shall not be required. Such consent shall
not be unreasonably withheld or delayed. Each such assignment with
respect to a Purchaser which is not a Lender or an Affiliate thereof
shall (unless each of the Borrower and the Agent otherwise consents)
be in an amount not less than the lesser of (i) $10,000,000 or (ii)
the remaining amount of the assigning Lender's Commitment (calculated
as at the date of such assignment) or outstanding Loans (if the
applicable Commitment has been terminated).
1.95.2 Effect; Effective Date. Upon (i) delivery to the
----------------------
Agent of an assignment, together with any consents required by Section
12.3.1, and (ii) payment of a $3,500 fee to the Agent for processing
51
such assignment (unless such fee is waived by the 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 hereto,
and no further consent or action by the Borrower, the Lenders or the
Agent shall be required to release the transferor Lender with respect
to the percentage of the Aggregate Commitment and Loans assigned to
such Purchaser. Upon the consummation of any assignment to a Purchaser
pursuant to this Section 12.3.2, the transferor Lender, the Agent and
the Borrower shall, if the transferor Lender or the Purchaser desires
that its Loans be evidenced by Notes, make appropriate arrangements so
that 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.
1.96. Dissemination of Information. The Borrower authorizes each
----------------------------
Lender to disclose to any Participant or Purchaser or any other Person acquiring
an interest in the Loan Documents by operation of law (each a "Transferee") and
any prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries; provided
that each Transferee and prospective Transferee agrees to be bound by Section
9.11 of this Agreement.
1.97. Tax Treatment. If any interest in any Loan Document is
-------------
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 3.5(iv).
ARTICLE XIII
NOTICES
-------
52
1.98. Notices. Except as otherwise permitted by Section 2.11 with
-------
respect to borrowing notices, all notices, requests and other communications to
any party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (x)
in the case of the Borrower or the Agent, at its address or facsimile number set
forth on the signature pages hereof, (y) in the case of any Lender, at its
address or facsimile number set forth below its signature hereto or (z) in the
case of any party, at such other address or facsimile number as such party may
hereafter specify for the purpose by notice to the Agent and the Borrower in
accordance with the provisions of this Section 13.1. 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, four Business
Days 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 Agent under Article II
shall not be effective until received.
1.99. Change of Address. The Borrower, the Agent and any Lender may
-----------------
each change the address for service of notice upon it by a notice in writing to
the other parties hereto.
ARTICLE XIV
COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Borrower, the Agent, the LC Issuer
and the Lenders and each party has notified the Agent by facsimile transmission
or telephone that it has taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
------------------------------------------------------------
1.100. 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, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1
ET SEQ, BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE
STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
53
1.101. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY
-----------------------
SUBMITS TO THE NONEXCLUSIVE 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 HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT, THE LC ISSUER OR ANY LENDER
TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE AGENT, THE LC
ISSUER OR ANY LENDER OR ANY AFFILIATE OF THE AGENT, THE 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.
1.102. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT, THE 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.
54
IN WITNESS WHEREOF, the Borrower, the Lenders, the LC Issuer and the
Agent have executed this Agreement as of the date first above written.
AMERICAN TRANSMISSION COMPANY LLC
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Attention:
------------------------
Telephone:
------------------------
FAX:
----------------------
Commitments
-----------
$25,000,000
BANK ONE, NA (MAIN OFFICE CHICAGO),
Individually, as LC Issuer and as Agent
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION
(BORROWER'S COUNSEL)
, 2000
-----------
The Agent, the LC Issuer and the Lenders who are parties to the Credit Agreement
described below.
Gentlemen/Ladies:
We are counsel for American Transmission Company LLC (the "Borrower"),
and have represented the Borrower in connection with its execution and delivery
of a Credit Agreement dated as of , 2000 (the "Agreement") among the
-----------
Borrower, the Lenders named therein, and Bank One, NA, as Agent and as LC
Issuer, and providing for Credit Extensions in an aggregate principal amount not
exceeding $20,000,000 at any one time outstanding. All capitalized terms used in
this opinion and not otherwise defined herein shall have the meanings attributed
to them in the Agreement.
We have examined the Borrower's articles of incorporation, bylaws,
resolutions, , the Loan Documents and such other matters of fact
-------------
and law which we deem necessary in order to render this opinion. Based upon the
foregoing, it is our opinion that:
l. Each of the Borrower and its Subsidiaries is a corporation,
partnership or limited liability company duly and properly incorporated or
organized, as the case may be, validly existing and (to the extent such concept
applies to such entity) in good standing under the laws of its jurisdiction of
incorporation or organization and has all requisite authority to conduct its
business in each jurisdiction in which its business is conducted.
2. The execution and delivery by the Borrower of the Loan Documents to
which it is a party and the performance by the Borrower of its obligations
thereunder have been duly authorized by proper corporate proceedings on the part
of the Borrower and will not:
(a) require any consent of the Borrower's shareholders or members
(other than any such consent as has already been given and remains in full force
and effect);
(b) violate (i) any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Borrower or any Subsidiary or (ii)
the Borrower's or any Subsidiary's articles or certificate of incorporation,
partnership agreement, certificate of partnership, articles or certificate of
organization, bylaws, 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 or any Subsidiary is a party or is subject, or by which it,
or its Property, is bound, or conflict with or constitute a default thereunder;
or
(c) result in, or require, the creation or imposition of any Lien in,
of or on the Property of the Borrower or a Subsidiary pursuant to the terms of
any indenture, instrument or agreement binding upon the Borrower or any
Subsidiary.
3. The Loan Documents to which the Borrower is a party have been duly
executed and delivered by the Borrower, and constitute legal, valid and binding
obligations of the Borrower enforceable against the Borrower, in accordance with
their terms except to the extent the enforcement thereof may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and subject also to the availability of equitable remedies if
equitable remedies are sought.
4. There is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the best of our knowledge after due
inquiry, threatened against the Borrower or any Subsidiary which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect.
5. No order, consent, adjudication, approval, license, authorization,
or validation of, or filing, recording or registration with, or exemption by, or
other action in respect of any governmental or public body or authority, or any
subdivision thereof, which has not been obtained by the Borrower or any
Subsidiary, is required to be obtained by the Borrower or any Subsidiary in
connection with the execution and delivery of the Loan Documents, the borrowings
under the 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.
This opinion may be relied upon by the Agent, the LC Issuer, the
Lenders and their participants, assignees and other transferees.
Very truly yours,
EXHIBIT A-2
FORM OF OPINION
(GUARANTOR'S COUNSEL)
, 2000
-----------
The Agent, the LC Issuer and the Lenders who are parties to the Credit Agreement
described below.
Gentlemen/Ladies:
We are counsel for Alliant Energy Corporation (the "Guarantor"), and
have represented the Guarantor in connection with its execution and delivery of
a Guaranty dated as of , 2000 (the "Agreement"), which secures
-----------
certain obligations of American Transmission Company LLC (the "Borrower")
arising under the Credit Agreement dated as of , 2000 among the
-----------
Borrower, the Lenders named therein, and Bank One, NA, as Agent and as LC
Issuer, and providing for Credit Extensions in an aggregate principal amount not
exceeding $20,000,000 at any one time outstanding. All capitalized terms used in
this opinion and not otherwise defined herein shall have the meanings attributed
to them in the Agreement.
We have examined the Guarantor's articles of incorporation, bylaws,
resolutions, , the Loan Documents and such other matters of fact
-------------
and law which we deem necessary in order to render this opinion. Based upon the
foregoing, it is our opinion that:
l. Each of the Guarantor and its Subsidiaries is a corporation,
partnership or limited liability company duly and properly incorporated or
organized, as the case may be, validly existing and (to the extent such concept
applies to such entity) in good standing under the laws of its jurisdiction of
incorporation or organization and has all requisite authority to conduct its
business in each jurisdiction in which its business is conducted.
2. The execution and delivery by the Guarantor of the Loan Documents
to which it is a party and the performance by the Guarantor of its obligations
thereunder have been duly authorized by proper corporate proceedings on the part
of the Guarantor and will not:
(a) require any consent of the Guarantor's shareholders or members
(other than any such consent as has already been given and remains in full force
and effect);
(b) violate (i) any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Guarantor or any Subsidiary or (ii)
the Guarantor's or any Subsidiary's articles or certificate of incorporation,
partnership agreement, certificate of partnership, articles or certificate of
organization, bylaws, or operating or other management agreement, as the case
may be, or (iii) the provisions of any indenture, instrument or agreement to
which the Guarantor or any Subsidiary is a party or is subject, or by which it,
or its Property, is bound, or conflict with or constitute a default thereunder;
or
(c) result in, or require, the creation or imposition of any Lien in,
of or on the Property of the Guarantor or a Subsidiary pursuant to the terms of
any indenture, instrument or agreement binding upon the Guarantor or any
Subsidiary.
3. The Loan Documents to which the Guarantor is a party have been duly
executed and delivered by the Guarantor, and constitute legal, valid and binding
obligations of the Guarantor enforceable against the Guarantor, in accordance
with their terms except to the extent the enforcement thereof may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and subject also to the availability of equitable remedies if
equitable remedies are sought.
4. There is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the best of our knowledge after due
inquiry, threatened against the Guarantor or any Subsidiary which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect.
5. 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 Guarantor or any
Subsidiary, is required to be obtained by the Guarantor or any Subsidiary in
connection with the execution and delivery of the Loan Documents, the
performance by the Guarantor of its obligations arising under the Guaranty, or
the legality, validity, binding effect or enforceability of the Guaranty.
This opinion may be relied upon by the Agent, the LC Issuer, the
Lenders and their participants, assignees and other transferees.
Very truly yours,
EXHIBIT B
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain
Credit Agreement dated as of , 2000 (as amended, modified, renewed or
-----------
extended from time to time, the "Agreement") among American Transmission Company
LLC (the "Borrower"), the lenders party thereto and Bank One, NA, as Agent for
the Lenders and as LC Issuer. Unless otherwise defined herein, capitalized terms
used in this Compliance Certificate have the meanings ascribed thereto in the
Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected of the Borrower;
---------------------
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Borrower and its Subsidiaries during the period from the
Closing Date to the date of this Certificate (the "Compliance Period"; and
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Default or Unmatured Default during the Compliance Period, except as set forth
below.
Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
The foregoing are made and delivered this day of , .
-- -------- ----
EXHIBIT C
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between (the
"Assignor") and (the "Assignee") is dated as of , .
--------- -------------
The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit
---------------------
Agreement (which, as it may be amended, modified, renewed or extended from time
to time is herein called the "Credit Agreement") described in Item 1 of Schedule
1 attached hereto ("Schedule 1"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings attributed to them in the
Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
-------------------------
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents, such that after giving effect to such
assignment the Assignee shall have purchased pursuant to this Assignment
Agreement the percentage interest specified in Item 3 of Schedule 1 of all
outstanding rights and obligations under the Credit Agreement and the other Loan
Documents relating to the facilities listed in Item 3 of Schedule 1. The
Aggregate Commitment (or Outstanding Credit Exposure, if the applicable
Commitment has been terminated) purchased by the Assignee hereunder is set forth
in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement
--------------
(the "Effective Date") shall be the later of the date specified in Item 5 of
Schedule 1 or two Business Days (or such shorter period agreed to by the Agent)
after this Assignment Agreement, together with any consents required under the
Credit Agreement, are delivered to the Agent. In no event will the Effective
Date occur if the payments required to be made by the Assignee to the Assignor
on the Effective Date are not made on the proposed Effective Date.
4. PAYMENT OBLIGATIONS. In consideration for the sale and assignment
-------------------
of Outstanding Credit Exposure hereunder, the Assignee shall pay the Assignor,
on the Effective Date, the amount agreed to by the Assignor and the Assignee. On
and after the Effective Date, the Assignee shall be entitled to receive from the
Agent all payments of principal, interest, Reimbursement Obligations and fees
with respect to the interest assigned hereby. The Assignee will promptly remit
to the Assignor any interest on Loans and fees received from the Agent which
relate to the portion of the Commitment or Outstanding Credit Exposure assigned
to the Assignee hereunder for periods prior to the Effective Date and not
previously paid by the Assignee to the Assignor. In the event that either party
hereto receives any payment to which the other party hereto is entitled under
this Assignment Agreement, then the party receiving such amount shall promptly
remit it to the other party hereto.
5. RECORDATION FEE. The Assignor and Assignee each agree to pay
---------------
one-half of the recordation fee required to be paid to the Agent in connection
with this Assignment Agreement unless otherwise specified in Item 6 of Schedule
1.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
--------------------------------------------------------------
LIABILITY. The Assignor represents and warrants that (i) it is the legal and
---------
beneficial owner of the interest being assigned by it hereunder, (ii) such
interest is free and clear of any adverse claim created by the Assignor and
(iii) the execution and delivery of this Assignment Agreement by the Assignor is
duly authorized. It is understood and agreed that the assignment and assumption
hereunder are made without recourse to the Assignor and that the Assignor makes
no other representation or warranty of any kind to the Assignee. Neither the
Assignor nor any of its officers, directors, employees, agents or attorneys
shall be responsible for (i) the due execution, legality, validity,
enforceability, genuineness, sufficiency or collectability of any Loan Document,
(ii) any representation, warranty or statement made in or in connection with any
of the Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
property, books or records of the Borrower, or (vi) any mistake, error of
judgment, or action taken or omitted to be taken in connection with the Loans or
the Loan Documents.
7. REPRESENTATIONS AND UNDERTAKINGS OF THE ASSIGNEE. The Assignee (i)
------------------------------------------------
confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements requested by the Assignee and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment Agreement, (ii) agrees that
it will, independently and without reliance upon the Agent, the Assignor or any
other Lender and based on such documents and information at it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents, (iii) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under the Loan Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto, (iv) confirms
that the execution and delivery of this Assignment Agreement by the Assignee is
duly authorized, (v) agrees that it will perform in accordance with their terms
all of the obligations which by the terms of the Loan Documents are required to
be performed by it as a Lender, (vi) agrees that its payment instructions and
notice instructions are as set forth in the attachment to Schedule 1, (vii)
confirms that none of the funds, monies, assets or other consideration being
used to make the purchase and assumption hereunder are "plan assets" as defined
under ERISA and that its rights, benefits and interests in and under the Loan
Documents will not be "plan assets" under ERISA, (viii) agrees to indemnify and
hold the Assignor harmless against all losses, costs and expenses (including,
without limitation, reasonable attorneys' fees) and liabilities incurred by the
Assignor in connection with or arising in any manner from the Assignee's
nonperformance of the obligations assumed under this Assignment Agreement, and
(ix) if applicable, attaches the forms prescribed by the Internal Revenue
Service of the United States certifying that the Assignee is entitled to receive
payments under the Loan Documents without deduction or withholding of any United
States federal income taxes.
8. GOVERNING LAW. This Assignment Agreement shall be governed by the
-------------
internal law, and not the law of conflicts, of the State of Illinois.
9. NOTICES. Notices shall be given under this Assignment Agreement in
-------
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall be
the address set forth in the attachment to Schedule 1.
10. COUNTERPARTS; DELIVERY BY FACSIMILE. This Assignment Agreement may
-----------------------------------
be executed in counterparts. Transmission by facsimile of an executed
counterpart of this Assignment Agreement shall be deemed to constitute due and
sufficient delivery of such counterpart and such facsimile shall be deemed to be
an original counterpart of this Assignment Agreement.
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto
have executed this Assignment Agreement by executing Schedule 1 hereto as of the
date first above written.
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement:
2. Date of Assignment Agreement: ,
----------- ------
3. Amounts (As of Date of Item 2 above):
Facility Facility Facility Facility
1* 2* 3* 4*
-------- -------- -------- --------
a. Assignee's percentage
of each Facility purchased
under the Assignment
Agreement** % % % %
-------- -------- -------- --------
b. Amount of
each Facility
purchased
under the Assignment
Agreement $ $ $ $
-------- -------- -------- --------
4. Assignee's Commitment (or
Outstanding Credit Exposure
with respect to terminated
Commitments) purchased
hereunder: $
--------------
5. Proposed Effective Date:
---------------------
6. Non-standard Recordation Fee
Arrangement N/A***
[Assignor/Assignee
to pay 100% of fee]
[Fee waived by Agent]
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
------------------------------- --------------------------------
Title: Title:
----------------------------- -----------------------------
ACCEPTED AND CONSENTED TO**** BY ACCEPTED AND CONSENTED TO**** BY
[NAME OF BORROWER] [NAME OF AGENT]
By: By:
------------------------------- --------------------------------
Title: Title:
----------------------------- -----------------------------
* Insert specific facility names per Credit Agreement
** Percentage taken to 10 decimal places
*** If fee is split 50-50, pick N/A as option
**** Delete if not required by Credit Agreement
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMATION SHEET
--------------------------------
Attach Assignor's Administrative Information Sheet, which must
include notice addresses for the Assignor and the Assignee
(Sample form shown below)
ASSIGNOR INFORMATION
--------------------
CONTACT:
-------
Name: Telephone No.:
----------------------------- --------------------------
Fax No.: Telex No.:
-------------------------- ------------------------------
Answerback:
-----------------------------
PAYMENT INFORMATION:
-------------------
Name & ABA # of Destination Bank:
----------------------------------------------
----------------------------------------------
Account Name & Number for Wire Transfer:
-----------------------------------
-----------------------------------
Other Instructions:
-------------------------------------------------------------
ADDRESS FOR NOTICES FOR ASSIGNOR:
-------------------------------- ----------------------------------------------
----------------------------------------------
----------------------------------------------
ASSIGNEE INFORMATION
--------------------
CREDIT CONTACT:
--------------
Name: Telephone No.:
----------------------------- --------------------------
Fax No.: Telex No.:
-------------------------- ------------------------------
Answerback:
-----------------------------
KEY OPERATIONS CONTACTS:
-----------------------
Booking Installation: Booking Installation:
-------------- -------------------
Name: Name:
----------------------------- -----------------------------------
Telephone No.: Telephone No.:
--------------------- --------------------------
Fax No.: Fax No.:
-------------------------- --------------------------------
Telex No.: Telex No.:
------------------------ ------------------------------
Answerback: Answerback:
----------------------- -----------------------------
PAYMENT INFORMATION:
-------------------
Name & ABA # of Destination Bank:
----------------------------------------------
----------------------------------------------
Account Name & Number for Wire Transfer:
----------------------------------------
----------------------------------------
Other Instructions:
-------------------------------------------------------------
--------------------------------------------------------------------------------
ADDRESS FOR NOTICES FOR ASSIGNEE:
-------------------------------- -----------------------------------------------
-----------------------------------------------
-----------------------------------------------
BANK ONE INFORMATION
--------------------
Assignee will be called promptly upon receipt of the signed agreement.
INITIAL FUNDING CONTACT: SUBSEQUENT OPERATIONS CONTACT:
----------------------- -----------------------------
Name: Name:
----------------------------- -----------------------------------
Telephone No.: (312) Telephone No.: (312)
-------------------- --------------------------
Fax No.: (312) Fax No.: (312)
-------------------------- --------------------------------
Bank One Telex No.:
---------------------
INITIAL FUNDING STANDARDS:
-------------------------
BANK ONE WIRE INSTRUCTIONS: Bank One, NA, ABA #
-------------------------- LS2 Incoming Account #
Ref:
----------------
ADDRESS FOR NOTICES FOR BANK ONE: ▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------- Attn:
Fax No. (312) or (312)
EXHIBIT D
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To Bank One, NA,
as Agent (the "Agent") under the Credit Agreement
Described Below.
Re: Credit Agreement, dated , 2000 (as the same may be amended
--------------
or modified, the "Credit Agreement"), among American Transmission
Company LLC (the "Borrower"), the Lenders named therein, the LC Issuer
and the Agent.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned thereto in the Credit Agreement.
The Agent is specifically authorized and directed to act upon the
following standing money transfer instructions with respect to the proceeds of
Ratable Advances or other extensions of credit from time to time until receipt
by the Agent of a specific written revocation of such instructions by the
Borrower, provided, however, that the Agent may otherwise transfer funds as
hereafter directed in writing by the Borrower in accordance with Section 13.1 of
the Credit Agreement or based on any telephonic notice made in accordance with
Section 2.11 of the Credit Agreement.
Facility Identification Number(s)
-----------------------------------------------
Customer/Account Name
-----------------------------------------------------------
Transfer Funds To
---------------------------------------------------------------
---------------------------------------------------------------
For Account No.
----------------------------------------------------------------
Reference/Attention To
----------------------------------------------------------
Authorized Officer (Customer Representative) Date
-------------------------
------------------------------
(Please Print) Signature
Bank Officer Name Date
--------------------------
------------------------------
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
EXHIBIT E
RATABLE NOTE
[Date]
American Transmission Company LLC, a Wisconsin limited liability
company (the "Borrower"), promises to pay to the order of
(the "Lender") the aggregate unpaid
------------------------------------
principal amount of all Ratable Loans made by the Lender to the Borrower
pursuant to Section 2.2 of the Agreement (as hereinafter defined), in
immediately available funds at the main office of Bank One, NA in Chicago,
Illinois, as Agent, together with interest on the unpaid principal amount hereof
at the rates and on the dates set forth in the Agreement. The Borrower shall pay
the principal of and accrued and unpaid interest on the Ratable Loans in full on
the Facility Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Ratable Loan and the date and amount of each
principal payment hereunder.
This Ratable Note is one of the Notes issued pursuant to, and is
entitled to the benefits of, the Credit Agreement dated as of , 2000
-----------
(which, as it may be amended or modified and in effect from time to time, is
herein called the "Agreement"), among the Borrower, the lenders party thereto,
including the Lender, and Bank One, NA, as Agent, to which Agreement reference
is hereby made for a statement of the terms and conditions governing this
Ratable Note, including the terms and conditions under which this Ratable Note
may be prepaid or its maturity date accelerated. This Ratable Note is secured
pursuant to the Guaranty, all as more specifically described in the Agreement,
and reference is made thereto for a statement of the terms and provisions
thereof. Capitalized terms used herein and not otherwise defined herein are used
with the meanings attributed to them in the Agreement.
AMERICAN TRANSMISSION COMPANY LLC
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
RATABLE NOTE OF ,
----------------------------------
DATED ,
---------------------
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
--------------------------------------------------------------------------------
SCHEDULE 1
SUBSIDIARIES AND OTHER INVESTMENTS
(See Sections 5.7 and 6.13)
Investment Jurisdiction of Owned Amount of Percent
In Organization By Investment Ownership
--------------------------------------------------------------------------------
SCHEDULE 2
INDEBTEDNESS AND LIENS
(See Sections 5.13, 6.10 and 6.14)
Maturity
Indebtedness Indebtedness Property and Amount
Incurred By Owed To Encumbered (If Any) of Indebtedness
--------------------------------------------------------------------------------
SCHEDULE 5.6
LITIGATION AND CONTINGENT OBLIGATIONS
TABLE OF CONTENTS
-----------------
PAGE
----
ARTICLE I DEFINITIONS.....................................................1
ARTICLE II THE CREDITS....................................................12
2.1. The Facility...................................................12
21.1. Amount of Facility...................................12
21.2. Availability of Facility.............................12
2.1.3. Repayment of Facility................................12
2.2. Ratable Advances...............................................12
2.2.1. Ratable Advances.....................................12
2.2.2. Types of Ratable Advances............................12
2.2.3. Method of Selecting Types and Interest Periods
for Ratable Advances.................................12
2.2.4. Conversion and Continuation of Outstanding Ratable
Advances.............................................13
2.3. Method of Borrowing............................................13
2.4. Facility Fee; Reductions in Aggregate Commitment...............13
2.5. Minimum Amount of Each Advance.................................14
2.6. Optional Principal Payments....................................14
2.7. Changes in Interest Rate, etc..................................14
2.8. Rates Applicable After Default.................................14
2.9. Method of Payment..............................................15
2.10. Noteless Agreement; Evidence of Indebtedness...................15
2.11. Telephonic Notices.............................................16
2.12. Interest Payment Dates; Interest and Fee Basis.................16
2.13. Notification of Ratable Advances, Interest Rates, Prepayments
and Commitment Reductions......................................16
2.14. Lending Installations..........................................17
2.15. Non-Receipt of Funds by the Agent..............................17
2.16. Facility LCs...................................................17
2.16.1. Issuance.............................................17
2.16.2. Participations.......................................18
2.16.3. Notice...............................................18
2.16.4. LC Fees..............................................18
2.16.5. Administration; Reimbursement by Lenders.............18
2.16.6. Reimbursement by Borrower............................19
2.16.7. Obligations Absolute.................................19
2.16.8. Actions of LC Issuer.................................20
2.16.9. Indemnification......................................20
2.16.10. Lenders' Indemnification.............................21
2.16.11. Facility LC Collateral Account.......................21
i
2.16.12. Rights as a Lender...................................21
ARTICLE III YIELD PROTECTION; TAXES........................................21
3.1. Yield Protection...............................................21
3.2. Changes in Capital Adequacy Regulations........................22
3.3. Availability of Types of Ratable Advances......................23
3.4. Funding Indemnification........................................23
3.5. Taxes..........................................................23
3.6. Lender Statements; Survival of Indemnity.......................25
3.7. Replacement of Affected Lender.................................25
ARTICLE IV CONDITIONS PRECEDENT...........................................26
4.1. Initial Credit Extension.......................................26
4.2. Each Credit Extension..........................................27
ARTICLE V REPRESENTATIONS AND WARRANTIES.................................27
5.1. Existence and Standing.........................................27
5.2. Authorization and Validity.....................................28
5.3. No Conflict; Government Consent................................28
5.4. Material Adverse Change........................................28
5.5. Taxes..........................................................28
5.6. Litigation and Contingent Obligations..........................29
5.7. Subsidiaries...................................................29
5.8. ERISA..........................................................29
5.9. Accuracy of Information........................................29
5.10. Regulation U...................................................29
5.11. Material Agreements............................................29
5.12. Compliance With Laws...........................................29
5.13. Ownership of Properties........................................29
5.14. Environmental Matters..........................................30
5.15. Investment Company Act.........................................30
5.16. Year 2000......................................................30
ARTICLE VI COVENANTS......................................................30
6.1. Financial Reporting............................................30
6.2. Use of Proceeds................................................31
6.3. Notice of Default..............................................31
6.4. Conduct of Business............................................31
6.5. Taxes..........................................................32
6.6. Insurance......................................................32
6.7. Compliance with Laws...........................................32
6.8. Maintenance of Properties......................................32
6.9. Books and Records; Inspection..................................32
6.10. Indebtedness...................................................33
6.11. Merger.........................................................33
6.12. Sale of Assets.................................................33
6.13. Investments and Acquisitions...................................33
6.14. Liens..........................................................34
6.15. Year 2000......................................................34
6.16. Affiliates.....................................................34
ii
6.17. Sale of Accounts...............................................34
6.18. Contingent Obligations.........................................35
6.19. Letters of Credit..............................................35
6.20. Prepayment of Other Debt.......................................35
ARTICLE VII DEFAULTS.......................................................35
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES.................37
8.1. Acceleration; Facility LC Collateral Account...................37
8.2. Amendments.....................................................38
8.3. Preservation of Rights.........................................39
ARTICLE IX GENERAL PROVISIONS.............................................39
9.1. Survival of Representations....................................39
9.2. Governmental Regulation........................................39
9.3. Headings.......................................................40
9.4. Entire Agreement...............................................40
9.5. Several Obligations; Benefits of this Agreement................40
9.6. Expenses; Indemnification......................................40
9.7. Numbers of Documents...........................................41
9.8. Accounting.....................................................41
9.9. Severability of Provisions.....................................41
9.10. Nonliability of Lenders........................................41
9.11. Confidentiality................................................41
9.12. Nonreliance....................................................41
9.13. Disclosure.....................................................42
ARTICLE X THE AGENT......................................................42
10.1. Appointment; Nature of Relationship............................42
10.2. Powers.........................................................42
10.3. General Immunity...............................................42
10.4. No Responsibility for Loans, Recitals, etc.....................43
10.5. Action on Instructions of Lenders..............................43
10.6. Employment of Agents and Counsel...............................43
10.7. Reliance on Documents; Counsel.................................43
10.8. Agent's Reimbursement and Indemnification......................43
10.9. Notice of Default..............................................44
10.10. Rights as a Lender.............................................44
10.11. Lender Credit Decision.........................................44
10.12. Successor Agent................................................45
10.13. Agent's Fee....................................................45
10.14. Delegation to Affiliates.......................................45
ARTICLE XI SETOFF; RATABLE PAYMENTS.......................................46
11.1. Setoff.........................................................46
11.2. Ratable Payments...............................................46
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS..............46
12.1. Successors and Assigns.........................................46
12.2. Participations.................................................47
12.2.1 Permitted Participants; Effect.......................47
iii
12.2.2 Voting Rights........................................47
12.2.3 Benefit of Setoff....................................47
12.3. Assignments....................................................48
12.3.1 Permitted Assignments................................48
12.3.2 Effect; Effective Date...............................48
12.4. Dissemination of Information...................................49
12.5. Tax Treatment..................................................49
ARTICLE XIII NOTICES........................................................49
13.1. Notices........................................................49
13.2. Change of Address..............................................49
ARTICLE XIV COUNTERPARTS...................................................49
ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL...50
15.1. CHOICE OF LAW..................................................50
15.2. CONSENT TO JURISDICTION........................................50
15.3. WAIVER OF JURY TRIAL...........................................50
SCHEDULES AND EXHIBITS
Schedule 1 Subsidiaries and Other Investments
Schedule 2 Indebtedness and Liens
Schedule 5.6 Litigation and Contingent Obligations
Exhibit A-1 Form of Opinion (Borrower's Counsel)
Exhibit A-2 Form of Opinion (Guarantor's Counsel)
Exhibit B Compliance Certificate
Exhibit C Assignment Agreement
Exhibit D Loan/Credit Related Money Transfer Authorization
Exhibit E Note
Exhibit F Telephonic Notices
iv