$435,000,000
CREDIT AGREEMENT
Arranged by
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., ▇▇▇▇▇▇▇ LYNCH, PIERCE,
▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
Dated as of June 29, 2000
among
VECTREN CORPORATION,
VECTREN UTILITY HOLDINGS, INC.,
CERTAIN LENDERS,
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., ▇▇▇▇▇▇▇ LYNCH, PIERCE,
▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED,
as Sole Lead Arranger and Syndication Agent,
ABN AMRO,
as Documentation Agent,
and
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
DEFINITIONS ................................................................ 1
ARTICLE II
THE CREDITS
2.1. Commitment..........................................................13
2.2. Required Payments; Termination......................................13
2.3. Ratable Loans.......................................................13
2.4. Types of Advances...................................................13
2.5. Facility Fee; Utilization Fee; Reductions in Aggregate Commitment...13
2.6. Minimum Amount of Each Advance......................................14
2.7. Optional Principal Payments.........................................14
2.8. Method of Selecting Types and Interest Periods for New Advances.....14
2.9. Conversion and Continuation of Outstanding Advances.................15
2.10. Interest Rates, etc.................................................15
2.11. Rates Applicable After Default......................................16
2.12. Method of Payment...................................................16
2.13. Noteless Agreement; Evidence of Indebtedness........................16
2.14. Telephonic Notices..................................................17
2.15. Interest Payment Dates; Interest and Fee Basis......................17
2.16. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions.............................................18
2.17. Lending Installations...............................................18
2.18. Non-Receipt of Funds by the Administrative Agent....................18
2.19. Term-out Option.....................................................19
ARTICLE III
YIELD PROTECTION; TAXES
3.1. Yield Protection....................................................19
3.2. Changes in Capital Adequacy Regulations.............................20
3.3. Availability of Types of Advances...................................20
3.4. Funding Indemnification.............................................21
3.5. Taxes...............................................................21
3.6. Lender Statements; Survival of Indemnity............................23
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Advance.....................................................24
4.2. Each Advance........................................................25
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1. Existence and Standing..............................................26
5.2. Authorization and Validity..........................................26
5.3. No Conflict; Government Consent.....................................26
5.4. Financial Statements................................................27
5.5. Material Adverse Change.............................................27
5.6. Taxes...............................................................27
5.7. Litigation and Contingent Obligations...............................27
5.8. ERISA...............................................................28
5.9. Accuracy of Information.............................................28
5.10. Regulation U........................................................29
5.11. Material Agreements.................................................29
5.12. Compliance With Laws................................................29
5.13. Ownership of Properties.............................................29
5.14. Plan Assets; Prohibited Transactions................................29
5.15. Environmental Matters...............................................30
5.16. Investment Company Act..............................................30
5.17. Public Utility Holding Company Act..................................30
5.18. Pari Passu Indebtedness.............................................30
ARTICLE VI
COVENANTS
6.1. Financial Reporting.................................................30
6.2. Use of Proceeds.....................................................31
6.3. Notice of Default...................................................32
6.4. Conduct of Business.................................................32
6.5. Taxes...............................................................32
6.6. Insurance...........................................................32
6.7. Compliance with Laws................................................32
6.8. Maintenance of Properties...........................................32
6.9. Inspection..........................................................33
6.10. Consolidations, Mergers and Sale of Assets..........................33
6.11. Liens...............................................................34
6.12. Transactions with Affiliates........................................35
6.13. Maintenance of Indebtedness to Capitalization Ratio.................36
6.14. Limitation on Certain Restrictions Affecting Subsidiaries...........36
ARTICLE VII
DEFAULTS
DEFAULTS ................................................................... 36
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration........................................................38
8.2. Amendments..........................................................38
8.3. Preservation of Rights..............................................39
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations.........................................40
9.2. Governmental Regulation.............................................40
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.....................................................42
9.12. Nonreliance.........................................................42
9.13. Joint and Several Liability.........................................42
ARTICLE X
THE AGENTS
10.1. Appointment; Nature of Relationship.................................43
10.2. Powers..............................................................44
10.3. General Immunity....................................................44
10.4. No Responsibility for Loans, Recitals, etc..........................44
10.5. Action on Instructions of Lenders...................................45
10.6. Employment of Administrative Agents and Counsel.....................45
10.7. Reliance on Documents; Counsel......................................45
10.8. Administrative Agent's Reimbursement and Indemnification............45
10.9. Notice of Default...................................................46
10.10. Rights as a Lender..................................................46
10.11. Lender Credit Decision..............................................46
10.12. Successor Administrative Agent......................................47
10.13. Administrative Agent's Fee..........................................48
10.14. Delegation to Affiliates............................................48
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff..............................................................48
11.2. Ratable Payments....................................................48
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns..............................................49
12.2. Participations......................................................49
12.2.1. Permitted Participants; Effect...........................49
12.2.2. Voting Rights............................................50
12.2.3. Benefit of Setoff........................................50
12.3. Assignments.........................................................50
12.3.1. Permitted Assignments....................................50
12.3.2. Effect; Effective Date...................................51
12.4. Pledges to Federal Reserve Bank.....................................52
12.5. Dissemination of Information........................................52
12.6. Tax Treatment.......................................................52
12.7. Designation.........................................................53
ARTICLE XIII
NOTICES
NOTICES .....................................................................54
ARTICLE XIV
COUNTERPARTS
COUNTERPARTS ................................................................54
ARTICLE XV
CHOICE OF LAW; CONSENT TO
JURISDICTION; WAIVER OF JURY TRIAL
15.1. Choice of Law.......................................................54
15.2. Consent to Jurisdiction.............................................55
15.3. Waiver of Jury Trial................................................55
PRICING SCHEDULE............................................................P-1
SCHEDULE 1 LIENS..............................................S-1
SCHEDULE 2 ENCUMBRANCES AFFECTING SUBSIDIARIES................S-2
EXHIBIT A FORM OF OPINION....................................A-1
EXHIBIT B FORM OF COMPLIANCE CERTIFICATE.....................B-1
EXHIBIT C FORM OF ASSIGNMENT AGREEMENT.......................C-1
EXHIBIT D FORM OF LOAN/CREDIT-RELATED MONEY TRANSFER
INSTRUCTION......................................D-1
EXHIBIT E FORM OF NOTE.......................................E-1
EXHIBIT F FORM OF TAX REPRESENTATION CERTIFICATE.............F-1
CREDIT AGREEMENT
This Credit Agreement dated as of June 29, 2000 is among
Vectren Corporation, Vectren Utility Holdings, Inc., the Lenders party hereto
from time to time, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, as Sole Lead Arranger and Syndication Agent, ABN AMRO, as
Documentation Agent, and Credit Suisse First Boston, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquisition" means the acquisition of certain gas utility
assets of The Dayton Power and Light Company as contemplated by the Acquisition
Agreement.
"Acquisition Agreement" means the Asset Purchase Agreement
dated as of December 14, 1999, among Indiana Energy, Inc., The Dayton Power and
Light Company and Number-3 CHK, Inc. (subsequently named Vectren Energy of Ohio,
Inc.).
"Administrative Agent" means Credit Suisse First Boston, in
its capacity as contractual representative of the Lenders pursuant to Article X,
and not in its individual capacity as a Lender, and any successor Administrative
Agent appointed pursuant to Article X.
"Advance" means a borrowing hereunder (including any
conversion or continuation thereof) consisting of the aggregate amount of the
several Loans made on the same Borrowing Date by the Lenders to a Borrower of
the same Type and, in the case of Eurodollar Advances, for the same Interest
Period.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such Person.
For purposes of this definition, "control" (including, with correlative
meanings, the terms "controlled by" and "under common control with") shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities or by contract or otherwise.
"Aggregate Commitment" means the aggregate of the Commitments
of all the Lenders, as reduced from time to time pursuant to the terms hereof.
"Agreement" means this credit agreement, as it may be amended
or modified and in effect from time to time.
"Alternate Base Rate" means, for any day, a rate of interest
per annum equal to the higher of (i) the Prime Rate for such day and (ii) the
sum of the Federal Funds Effective Rate for such day plus 0.5% per annum.
"Applicable Facility Fee Rate" means, at any time, the
percentage rate per annum at which facility fees are accruing on the Aggregate
Commitment as set forth in the Pricing Schedule.
"Applicable Margin" means, at any time, the percentage rate
per annum which is applicable at such time with respect to Eurodollar Advances
or Floating Rate Advances, as applicable, as set forth in the Pricing Schedule.
"Applicable Utilization Fee Rate" means, at any time, the
percentage rate per annum at which utilization fees are accruing on the Loans as
set forth in the Pricing Schedule.
"Approved Fund" means, with respect to any Lender that is a
fund or commingled investment vehicle that invests in loans, any other fund that
invests in loans and is managed or advised by the same investment advisor as
such Lender or by an Affiliate of such investment advisor.
"Article" means an article of this Agreement unless another
document is specifically referenced.
"Assignment Agreement"-- see Section 12.3.1.
"Authorized Officer" means any of the President, any Vice
President, the chief financial officer, the Treasurer or any Assistant Treasurer
of Parent or VUHI, as the case may be, acting singly.
"Borrower" means either of Parent or VUHI.
"Borrowing Date" means a date on which an Advance is made
hereunder (excluding the date of conversion of Loans to Term Loans pursuant to
Section 2.19).
"Borrowing Notice"-- see Section 2.8.
"Business Day" means (i) with respect to any borrowing,
payment or rate selection of Eurodollar Advances, a day (other than a Saturday
or Sunday) on which banks generally are open in New York, New York and
Evansville, Indiana for the conduct of substantially all of their commercial
lending activities and on which dealings in United States dollars are carried on
in the London interbank market and (ii) for all other purposes, a day (other
than a Saturday or Sunday) on which banks generally are open in New York, New
York and Evansville, Indiana for the conduct of substantially all of their
commercial lending activities.
"Capitalized Lease" of a Person means any lease of Property by
such Person as lessee which would be capitalized on a balance sheet of such
Person prepared in accordance with GAAP.
"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
GAAP.
"Change" -- see Section 3.2.
"Change of Control" means either of the following events:
(a) any Person or group (within the meaning of Rule 13d-5
under the Securities Exchange Act of 1934 as in effect on the date
hereof (the "Act")) shall become the Beneficial Owner (as defined in
Rule 13d-3 under the Act) of 30% or more of the voting power of the
capital stock or other equity interests of Parent the holders of which
are entitled under ordinary circumstances (irrespective of whether at
the time the holders of such stock or other equity interests shall have
or might have voting power by reason of the happening of any
contingency) to vote for the election of the directors of Parent; or
(b) a majority of the members of the Board of Directors of
Parent shall cease to be Continuing Members.
"Code" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of such
Lender to make Loans not exceeding the amount set forth opposite its signature
below or as set forth in any Notice of 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.
"Consolidated Total Capitalization" means, at any date of
determination, the sum of (a) Parent's consolidated shareholders' equity plus
(b) Consolidated Total Indebtedness.
"Consolidated Total Indebtedness" means, at any date of
determination, all then outstanding Indebtedness of Parent and its Subsidiaries
(excluding Contingent Obligations except to the extent in respect of
Indebtedness of another Person and excluding undrawn letter of credit
availability), determined on a consolidated basis in accordance with GAAP.
"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.
"Continuing Member" means a member of the Board of Directors
of Parent who either (a) was a member of Parent's Board of Directors on the date
of this Agreement and has been such continuously thereafter or (b) became a
member of such Board of Directors after the date of this Agreement and whose
election or nomination for election was approved by a vote of the majority of
the Continuing Members then members of Parent's Board of Directors.
"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 Parent or any
Subsidiary, are treated as a single employer under Section 414 of the Code.
"Conversion/Continuation Notice" -- see Section 2.9.
"Conversion Request" -- see Section 2.19.
"Default" means an event described in Article VII.
"Documentation Agent" means ABN AMRO, in its capacity as
documentation agent for the Lenders.
"Eligible Person" means (i) a commercial bank organized under
the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100.0 million; (ii) a commercial bank organized
under the laws of any other country that is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or a political subdivision of
any such country, and having a combined capital and surplus in a dollar
equivalent amount of at least $100.0 million; provided, however, that such bank
is acting through a branch or agency located in the country in which it is
organized or another country that is also a member of the OECD; (iii) an
insurance company, mutual fund or other entity which is regularly engaged in
making, purchasing or investing in loans or securities; or any other financial
institution organized under the laws of the United States, any state thereof,
any other country that is a member of the OECD or a political subdivision of any
such country with assets, or assets under management, in a dollar equivalent
amount of at least $100.0 million; (iv) any Affiliate of a Lender; (v) any other
entity (other than a natural person) which is an "accredited investor" (as
defined in Regulation D under the United States Securities Act of 1933, as
amended) which extends credit or buys loans as one of its businesses or
investing activities including, but not limited to, insurance companies, mutual
funds and investment funds; and (vi) any other entity consented to by the Sole
Lead Arranger and Parent. With respect to any Lender that is a fund or
commingled investment vehicle that invests in loans, any other fund or
commingled investment vehicle that invests in loans and is managed or advised by
the same investment advisor of such Lender or by an Affiliate of such investment
advisor shall be treated as a single Eligible Person.
"Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any rule or regulation issued
thereunder.
"ERISA Entity" means Parent, any Subsidiary and any member of
the Controlled Group.
"ERISA Event" means (a) any "reportable event," as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived, the failure to make by its due date a required installment under Section
412(m) of the Code with respect to any Plan or the failure to make any required
contribution to a Multiemployer Plan; (c) the filing pursuant to Section 412(d)
of the Code or Section 303(d) of ERISA of an application for a waiver of the
minimum funding standard with respect to any Plan; (d) the incurrence by any
ERISA Entity of any liability under Title IV of ERISA with respect to the
distress or involuntary termination of any Plan; (e) the receipt by any ERISA
Entity from the PBGC or a plan administrator of any notice relating to an
intention to terminate any Plan or to appoint a trustee to administer any Plan,
or the occurrence of any event or condition which could reasonably be expected
to result in the termination of or the appointment of a trustee to administer
any Plan; (f) the incurrence by any ERISA Entity of any liability with respect
to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (g)
the receipt by an ERISA Entity of any notice, or the receipt by any
Multiemployer Plan from any ERISA Entity of any notice, concerning the
imposition of withdrawal liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA; (h) the imposition of a lien under Section 302(f) of ERISA or
Section 412(n) of the Code or the posting of a bond or other security under
Section 307 of ERISA or Section 401(a)(29) of the Code in connection with an
amendment to a Plan; or (i) the occurrence of a nonexempt prohibited transaction
(within the meaning of Section 4975 of the Code or Section 406 of ERISA) which
could result in liability to Parent or any Subsidiary.
"Eurodollar Advance" means an Advance which bears interest at
the applicable Eurodollar Rate.
"Eurodollar Base Rate" shall mean, with respect to any
Eurodollar Advance for any Interest Period, the rate per annum determined by the
Administrative Agent at approximately 11:00 a.m. (London time) on the date which
is two Business Days prior to the beginning of such Interest Period by reference
to the British Bankers' Association Interest Settlement Rates for deposits in
U.S. dollars (as set forth by any service selected by the Administrative Agent
which has been nominated by the British Bankers' Association as an authorized
information vendor for the purpose of displaying such rates) for a period equal
to such Interest; provided that, to the extent that an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition, the
"Eurodollar Base Rate" shall be the interest rate per annum determined by the
Administrative Agent to be the average of the rates per annum at which deposits
in U.S. dollars are offered for such Interest Period to major banks in the
London interbank market in London, England by the Administrative Agent at
approximately 11:00 a.m. (London time) on the date which is two Business Days
prior to the beginning of such Interest Period. Each determination by the
Administrative Agent pursuant to this definition shall be conclusive absent
manifest error.
"Eurodollar Loan" means a Loan which bears interest at the
applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance
for the relevant Interest Period, the sum of (i) the quotient of (a) the
Eurodollar Base Rate applicable to such Interest Period, divided by (b) one
minus the Reserve Requirement (expressed as a decimal) applicable to such
Interest Period, plus (ii) the Applicable Margin for Eurodollar Advances. The
Eurodollar Rate shall be rounded to the next higher multiple of 1/16 of 1% if
the rate is not such a multiple.
"Excluded Taxes" means, in the case of each Lender or
applicable Lending Installation and the Administrative Agent, taxes imposed on
its overall net income, and franchise taxes imposed on it, by (i) the
jurisdiction under the laws of which such Lender or the Administrative Agent is
incorporated or organized or (ii) the jurisdiction in which the Administrative
Agent's or such Lender's principal executive office or such Lender's applicable
Lending Installation is located.
"Exempt Lender"-- see Section 3.5(iv).
"Exhibit" refers to an exhibit to this Agreement, unless
another document is specifically referenced.
"Facility Termination Date" means June 28, 2001, or any
earlier date on which the Aggregate Commitment is reduced to zero or otherwise
terminated pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an interest
rate per annum equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published for such day (or, if such day is
not a Business Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York or, if such rate is not so published for any day which
is a Business Day, the average of the quotations at approximately 11:00 a.m.
(New York time) on such day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Fee Letter" means the fee letter dated December 16, 1999,
between Indiana Energy, Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation.
"Floating Rate" means, for any day, a rate per annum equal to
the sum of (i) the Alternate Base Rate for such day, changing when and as the
Alternate Base Rate changes, plus (ii) the Applicable Margin for Floating Rate
Advances.
"Floating Rate Advance" means an Advance which bears interest
at the applicable Floating Rate.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
statements of the Financial Accounting Standards Board.
"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 and (viii) all obligations, contingent
or otherwise, with respect to the face amount of letters of credit (whether or
not drawn) and bankers' acceptances issued for the account 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 first
selected by either Borrower pursuant to this Agreement. Such Interest Period
shall end on the day which corresponds numerically to such date one, two, three
or six months thereafter, provided, however, that if there is no such
numerically corresponding day in such next, second, third or sixth succeeding
month, such Interest Period shall end on the last Business Day of such next,
second, third or sixth succeeding month. If an Interest Period would otherwise
end on a day which is not a Business Day, such Interest Period shall end on the
next succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"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
Administrative Agent, the office, branch, subsidiary or affiliate of such Lender
or the Administrative Agent listed on the signature pages hereof or otherwise
selected by such Lender or the Administrative Agent pursuant to Section 2.17.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" -- see Section 2.1; from and after the Facility
Termination Date the word "Loan" shall refer to Term Loans, if any, then
outstanding.
"Loan Documents" means this Agreement and any Notes issued
pursuant to Section 2.13(iv).
"Margin Stock" means margin stock within the meaning of
Regulations T, U and X.
"Material Adverse Effect" means a material adverse effect on
(i) the business, results of operation or financial condition of Parent and the
Subsidiaries taken as a whole (after giving effect to the Transactions), (ii)
the ability of either Borrower to perform its obligations under the Loan
Documents or (iii) the validity or enforceability of any of the Loan Documents
or the rights or remedies of the Administrative Agent or the Lenders thereunder.
"Material Indebtedness"-- see Section 7.5.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"▇▇▇▇▇'▇ Rating"-- see Pricing Schedule.
"Multiemployer Plan" means a multiemployer plan within the
meaning of Section 4001(a)(3) of ERISA (i) to which any ERISA Entity is then
making or accruing an obligation to make contributions, or (ii) with respect to
which Parent or any Subsidiary could reasonably be expected to incur liability.
"Non-U.S. Lender"-- see Section 3.5(iv).
"Note"-- see Section 2.13(iv).
"Notice of Assignment" -- see Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and
unpaid interest on the Loans, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrowers to the
Lenders or to any Lender, the Administrative Agent or any indemnified party
arising under the Loan Documents.
"Other Taxes"-- see Section 3.5(ii).
"Parent" means Vectren Corporation, an Indiana corporation,
and, to the extent permitted by this Agreement, its successors and assigns.
"Participants"-- see Section 12.2.1.
"Payment Date" means the last Business Day of each March,
June, September and December.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor agency thereto).
"Person" means any natural person, corporation, firm, joint
venture, partnership, limited liability company, association, enterprise, trust
or other entity or organization, or any government or political subdivision or
any agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered
by Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Code as to which Parent or any member of the Controlled Group may
have any liability.
"Pricing Schedule" means the Schedule attached hereto
identified as such.
"Prime Rate" means a rate per annum equal to the prime rate of
interest announced by Credit Suisse First Boston (or any successor
Administrative Agent) from time to time, changing when and as said prime rate
changes.
"Property" of a Person means any and all property, whether
real, personal, tangible, intangible or mixed, of such Person, or other assets
owned, leased or operated by such Person.
"Purchasers"-- see Section 12.3.1.
"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.
"Required Lenders" means Lenders in the aggregate having more
than 50% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding more than 50% of the aggregate
unpaid principal amount of the outstanding Loans.
"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.
"Risk-Based Capital Guidelines" -- see Section 3.2.
"S&P" means Standard and Poor's Ratings Services, a division
of The McGraw Hill Companies, Inc.
"S&P Rating" -- see Pricing Schedule.
"Schedule" refers to a schedule to this Agreement, unless
another document is specifically referenced.
"SEC" means the Securities and Exchange Commission (or any
successor agency thereto).
"Section" means a numbered section of this Agreement, unless
another document is specifically referenced.
"Sole Lead Arranger" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, and its successors.
"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 Parent.
"Substantial Portion" means, with respect to the Property of
Parent and the Subsidiaries, Property which (i) represents more than 10% of the
consolidated assets of Parent and the Subsidiaries as would be shown in the
consolidated financial statements of Parent and the Subsidiaries as at the
beginning of the twelve-month period ending with the month in which such
determination is made or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of Parent and the
Subsidiaries as reflected in the financial statements referred to in clause (i)
above.
"Syndication Agent" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, in its capacity as syndication agent for
the Lenders.
"Tax Representation Certificate"-- see Section 3.5(iv).
"Taxes" means any and all present or future taxes, duties,
levies, fees, imposts, deductions, charges or withholdings, whether computed on
a separate, consolidated, unitary, combined or other basis and any and all
liabilities (including interest, fines, penalties or additions to tax) with
respect to the foregoing, but excluding Excluded Taxes.
"Term Loans"-- see Section 2.19.
"'34 Act Reports" means the periodic reports of Parent filed
with the SEC on Forms 10-K, 10-Q and 8-K (or any successor forms thereto).
"Transactions" means the Acquisition, the entering into and
borrowings under this Agreement and other transactions entered into and
consummated in connection with the Acquisition.
"Transferee"-- see Section 12.4.
"Type" means, with respect to any 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.
"U.S. Lender"-- see Section 3.5(iv).
"VUHI" means Vectren Utility Holdings, Inc., an Indiana
corporation and a Wholly-Owned Subsidiary of Parent, and, to the extent
permitted by this Agreement, its successors and assigns.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary
all of the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
The foregoing definitions shall be equally applicable to both
the singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. Commitment. From and including the date of this Agreement
and prior to the Facility Termination Date, each Lender severally agrees, on the
terms and conditions set forth in this Agreement, to make loans (each a "Loan")
to the Borrowers from time to time in amounts not to exceed in the aggregate at
any one time outstanding to the Borrowers collectively the amount of such
Lender's Commitment. Subject to the terms of this Agreement, either Borrower may
borrow, repay and reborrow hereunder at any time prior to the Facility
Termination Date. Subject to Section 2.19, the Commitments to lend hereunder
shall expire on the Facility Termination Date.
2.2. Required Payments; Termination. Any outstanding Advances
and all other unpaid Obligations shall be paid in full by the Borrowers on the
Facility Termination Date, except that all Term Loans shall be paid in full by
the Borrowers on the second anniversary of the date hereof.
2.3. Ratable Loans. Each Advance hereunder shall consist of
Loans made from the several Lenders ratably in proportion to the ratio that
their respective Commitments bear to the Aggregate Commitment from time to time
(and with respect to Section 2.19, immediately prior to the Facility Termination
Date).
2.4. Types of Advances. The Advances may be Floating Rate
Advances or Eurodollar Advances, or a combination thereof, as selected by either
Borrower in accordance with Sections 2.8 and 2.9.
2.5. Facility Fee; Utilization Fee; Reductions in Aggregate
Commitment. The Borrowers agree, jointly and severally, to pay to the
Administrative Agent for the account of each Lender a facility fee at a per
annum rate equal to the Applicable Facility Fee Rate on the amount of such
Lender's Commitment from the date hereof, to and including the Facility
Termination Date, payable on each Payment Date and on the Facility Termination
Date or, in the case of Term Loans, on each Payment Date and the date of
maturity of the Term Loans. The Borrowers agree, jointly and severally, to pay
to the Administrative Agent for the account of each Lender a utilization fee at
a per annum rate equal to the Applicable Utilization Fee Rate of such Lender's
daily average outstanding Loans for so long as the average outstanding Loans are
greater than 33.3% of the Aggregate Commitments (or, in the case of Term Loans,
on each date after the Facility Termination Date regardless of the percentage of
the commitments drawn at the Facility Termination Date), payable on each Payment
Date, the Facility Termination Date and the date of maturity of the Term Loans.
The Borrowers may permanently reduce the Aggregate Commitment in whole, or in
part ratably among the Lenders in integral multiples of $10,000,000, upon at
least three Business Days' prior written notice to the Administrative Agent,
which notice shall specify the amount of any such reduction; provided, however,
that the amount of the Aggregate Commitment may not be reduced below the
aggregate principal amount of the outstanding Advances. All accrued facility
fees and utilization fees shall be payable on the effective date of any
termination of the obligations of the Lenders to make Loans hereunder.
2.6. Minimum Amount of Each Advance. Each Eurodollar Advance
shall be in the amount of $10,000,000 or a higher integral multiple of
$2,500,000, and each Floating Rate Advance shall be in the amount of $2,500,000
or a higher integral multiple thereof.
2.7. Optional Principal Payments. The Borrowers may from time
to time pay, without penalty or premium, all outstanding Floating Rate Advances
or, in a minimum aggregate amount of $2,500,000 or a higher integral multiple
thereof, any portion of the outstanding Floating Rate Advances upon one Business
Day's prior notice to the Administrative Agent. The Borrowers 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, any outstanding Eurodollar
Advance or, in a minimum aggregate amount of $10,000,000 or a higher integral
multiple of $2,500,000, any portion of an outstanding Eurodollar Advance upon
three Business Days' prior notice to the Administrative Agent.
2.8. Method of Selecting Types and Interest Periods for New
Advances. The Borrower requesting an Advance shall select the Type of Advance
and, in the case of each Eurodollar Advance, the Interest Period applicable
thereto from time to time. The applicable Borrower shall give the Administrative
Agent irrevocable notice (a "Borrowing Notice") not later than 11:00 a.m. (New
York City time) on the Borrowing Date of each Floating Rate Advance and not
later than 11:00 a.m. (New York City time) three Business Days before the
Borrowing Date for each Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Interest
Period applicable thereto.
Not later than noon (New York City time) on each Borrowing Date, each Lender
shall make available its Loan or Loans in immediately available funds to the
Administrative Agent at its address specified pursuant to Article XIII. The
Administrative Agent will make the funds so received from the Lenders available
to the applicable Borrower at the Administrative Agent's aforesaid address.
2.9. Conversion and Continuation of Outstanding Advances. Each
Floating Rate Advance shall continue as a Floating Rate Advance unless and until
such Floating Rate Advance is converted into a Eurodollar Advance pursuant to
this Section 2.9 or is repaid in accordance with Section 2.7. Each Eurodollar
Advance shall continue as a Eurodollar Advance until the end of the then
applicable Interest Period therefor, at which time such Eurodollar Advance shall
be automatically converted into a Floating Rate Advance unless (x) such
Eurodollar Advance is or was repaid in accordance with Section 2.7 or (y) either
Borrower shall have given the Administrative Agent a Conversion/Continuation
Notice (as defined below) requesting that, at the end of such Interest Period,
such Eurodollar Advance continue as a Eurodollar Advance for the same or another
Interest Period. Subject to the terms of Section 2.6, either Borrower may elect
from time to time to convert all or any part of a Floating Rate Advance into a
Eurodollar Advance. Either Borrower shall give the Administrative Agent
irrevocable notice (a "Conversion/Continuation Notice") of each conversion of a
Floating Rate Advance into a Eurodollar Advance or continuation of a Eurodollar
Advance not later than 10:00 a.m. (New York City time) at least three Business
Days prior to the date of the requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to
be converted or continued, and
(iii) the amount of such Advance which is to be converted into
or continued as a Eurodollar Advance and the duration of the Interest
Period applicable thereto.
2.10. Interest Rates, etc. Each Floating Rate Advance shall
bear interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is automatically converted from a
Eurodollar Advance into a Floating Rate Advance pursuant to Section 2.9, but
excluding the date it is paid or is converted into a Eurodollar Advance pursuant
to Section 2.9, at a rate per annum equal to the Floating Rate for such day.
Changes in the rate of interest on that portion of any Advance maintained as a
Floating Rate Advance will take effect simultaneously with each change in the
Alternate Base Rate. Each Eurodollar Advance shall bear interest on the
outstanding principal amount thereof from and including the first day of each
Interest Period applicable thereto to (but not including) the last day of such
Interest Period at the interest rate determined by the Administrative Agent as
applicable to such Eurodollar Advance based upon either Borrower's selections
under Sections 2.8 and 2.9 and otherwise in accordance with the terms hereof.
With respect to any Loan, no Interest Period may end after the final scheduled
maturity date of such Loan.
2.11. Rates Applicable After Default. Notwithstanding anything
to the contrary contained in Section 2.8 or 2.9, during the continuance of a
Default or Unmatured Default, the Required Lenders may, at their option, by
notice to the Borrowers (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
Advance may be made as, converted into or continued as a Eurodollar Advance.
During the continuance of a Default, the Required Lenders may, at their option,
by notice to the Borrowers (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 overdue Eurodollar Advance shall bear interest for the remainder of the
applicable Interest Period at the rate otherwise applicable to such Interest
Period plus 2% per annum, and (ii) each overdue Floating Rate Advance shall bear
interest at a rate per annum equal to the Floating Rate in effect from time to
time plus 2% per annum; provided, however, that, during the continuance of a
Default under Section 7.6 or 7.7, the interest rates set forth in clauses (i)
and (ii) above shall be applicable to all Advances without any election or
action on the part of the Administrative Agent or any Lender.
2.12. Method of Payment. All payments of the Obligations
hereunder shall be made, without setoff, deduction or counterclaim, in
immediately available funds to the Administrative Agent at the Administrative
Agent's address specified pursuant to Article XIII, or at any other Lending
Installation of the Administrative Agent specified in writing by the
Administrative Agent to the Borrowers, by noon (New York City time) on the date
when due and shall be applied ratably by the Administrative Agent among the
Lenders. Each payment delivered to the Administrative Agent for the account of
any Lender shall be delivered promptly by the Administrative Agent to such
Lender in the same type of funds that the Administrative Agent received at its
address specified pursuant to Article XIII or at any Lending Installation of
such Lender specified in a notice timely received by the Administrative Agent
from such Lender.
2.13. 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 Borrowers 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 Administrative 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
Borrowers to each Lender hereunder and (c) the amount of any sum received by the
Administrative Agent hereunder from the Borrowers 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 Administrative Agent or any Lender to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrowers
to repay the Obligations in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by a
promissory note (a "Note"). In such event, the Borrowers shall prepare, execute
and deliver to such Lender a Note payable to the order of such Lender in
substantially the form of Exhibit E. 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 one or more Notes 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.
2.14. Telephonic Notices. Each Borrower hereby authorizes the
Lenders and the Administrative Agent to extend, convert or continue Advances,
effect selections of Types of Advances and to transfer funds based on telephonic
notices made by any person or persons the Administrative Agent or any Lender in
good faith believes to be acting on behalf of either Borrower. Each Borrower
agrees to deliver promptly to the Administrative Agent a written confirmation
signed by an Authorized Officer, if such confirmation is requested by the
Administrative Agent or any Lender, of each telephonic notice. If the written
confirmation differs in any material respect from the action taken by the
Administrative Agent and the Lenders, the records of the Administrative Agent
and the Lenders shall govern absent manifest error.
2.15. 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, and at
maturity. Interest accrued on each Eurodollar Advance shall be payable on the
last day of its applicable Interest Period, on any date on which the Eurodollar
Advance is prepaid, whether by acceleration or otherwise, and at maturity.
Interest accrued on each Eurodollar Advance having an Interest Period longer
than three months shall also be payable on the last day of each three-month
interval during such Interest Period. Interest, facility fees and utilization
fees shall be calculated for actual days elapsed on the basis of a 360-day year.
Interest shall be payable for the day an Advance is made but not for the day of
any payment on the amount paid if payment is received prior to noon (New York
City time) at the place of payment. If any payment of principal of or interest
on an Advance shall become due on a day which is not a Business Day, 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 (subject to the provisos in the
definition of "Interest Period").
2.16. Notification of Advances, Interest Rates, Prepayments
and Commitment Reductions. Promptly after receipt thereof, the Administrative
Agent will notify each Lender of the contents of each Aggregate Commitment
reduction notice, Borrowing Notice, Conversion/Continuation Notice, and
repayment notice received by it hereunder. The Administrative Agent will notify
each Lender of the interest rate applicable to each Eurodollar Advance promptly
upon determination of such interest rate and will give each Lender prompt notice
of each change in the Alternate Base Rate.
2.17. Lending Installations. Each Lender may book its Loans at
any Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Loans and any Notes issued hereunder shall be
deemed held by the applicable Lender for the benefit of such Lending
Installation. Each Lender may, by written notice to the Administrative Agent and
the Borrowers in accordance with Article XIII, designate replacement or
additional Lending Installations through which Loans will be made by it and for
whose account Loan payments are to be made.
2.18. Non-Receipt of Funds by the Administrative Agent. Unless
either Borrower or a Lender, as the case may be, notifies the Administrative
Agent prior to the date on which it is scheduled to make payment to the
Administrative Agent of (i) in the case of a Lender, the proceeds of a Loan or
(ii) in the case of either Borrower, a payment of principal, interest or fees to
the Administrative Agent for the account of the Lenders, that it does not intend
to make such payment, the Administrative Agent may assume that such payment has
been made. The Administrative Agent may, but shall not be obligated to, make the
amount of such payment available to the intended recipient in reliance upon such
assumption. If such Lender or Borrower, as the case may be, has not in fact made
such payment to the Administrative Agent, the recipient of such payment shall,
on demand by the Administrative Agent, repay to the Administrative Agent the
amount so made available together with interest thereon in respect of each day
during the period commencing on the date such amount was so made available by
the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (y) in the case of payment by
either Borrower, the interest rate applicable to the relevant Loan.
2.19. Term-out Option. The Borrowers may, subject to the terms
and conditions set forth below, convert on the Facility Termination Date
outstanding Advances to term loans ("Term Loans") in an amount not to exceed 50%
of the Aggregate Commitments then in effect. Term Loans shall mature and be due
and payable on the second anniversary of the date hereof. The effectiveness of
any conversion pursuant to this Section 2.19 shall be subject to (a) no Default
or Unmatured Default existing immediately after giving effect to such
conversion, (b) payment by the Borrowers of a fee to each Lender on its
aggregate principal amount of Terms Loans equal to a percentage of the amount
thereof to be mutually agreed to by the Borrowers and the Sole Lead Arranger not
fewer than 30 days prior to the Facility Termination Date, and (c) delivery by
the Borrowers of a request for conversion to the Administrative Agent (a
"Conversion Request") no more than 60 days and not fewer than 30 days prior to
the Facility Termination Date.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. Yield Protection. If, on or after the date of this
Agreement, the adoption of any law or any governmental or quasi-governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law), or any change in the interpretation or administration thereof by
any governmental or quasi-governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender or applicable Lending Installation with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
(i) subjects any Lender or any applicable Lending Installation
to any Taxes, or changes the basis of taxation of payments (other than
with respect to Excluded Taxes) to any Lender in respect of its
Eurodollar Loans, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation (other
than reserves and assessments taken into account in determining the
interest rate applicable to Eurodollar Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation
of making, funding or maintaining its Eurodollar Loans or reduces any
amount receivable by any Lender or any applicable Lending Installation
in connection with its Eurodollar Loans, or requires any Lender or any
applicable Lending Installation to make any payment calculated by
reference to the amount of Eurodollar Loans held or interest received
by it, by an amount deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation of making or maintaining its Eurodollar Loans or
Commitment or to reduce the return received by such Lender or applicable Lending
Installation in connection with such Eurodollar Loans or Commitment, then,
within 15 days of demand by such Lender, the Borrowers shall pay such Lender
such additional amount or amounts as will compensate such Lender for such
increased cost or reduction in amount received.
3.2. Changes in Capital Adequacy Regulations. If a Lender
determines the amount of capital required or expected to be maintained by such
Lender, any Lending Installation of such Lender or any corporation controlling
such Lender is increased as a result of a Change, then, within 15 days of demand
by such Lender, the Borrowers shall pay such Lender the amount necessary to
compensate for any shortfall in the rate of return on the portion of such
increased capital which such Lender determines is attributable to this
Agreement, its Loans or its Commitment to make Loans hereunder (after taking
into account such Lender's policies as to capital adequacy). "Change" means (i)
any change after the date of this Agreement in the Risk-Based Capital Guidelines
or (ii) any adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation or
directive (whether or not having the force of law) after the date of this
Agreement which affects the amount of capital required or expected to be
maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines" means (i) the risk-based
capital guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
3.3. Availability of Types of Advances. If (i) any Lender
determines that maintenance of its Eurodollar Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, or (ii) the Required Lenders determine
that (a) deposits of a type and maturity appropriate to match fund Eurodollar
Advances are not available or (b) the interest rate applicable to a Type of
Advance does not accurately reflect the cost of making or maintaining such
Advance, then the Administrative Agent shall suspend the availability of the
affected Type of Advance and, in the case of clause (i), require any affected
Eurodollar Advances to be repaid or converted to Floating Rate Advances, subject
to the payment of any funding indemnification amounts required by Section 3.4.
3.4. Funding Indemnification. If any payment of a Eurodollar
Advance occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment or otherwise, or a
Eurodollar Advance is not made on the date specified by a Borrower for any
reason other than default by the Lenders, the Borrowers will indemnify each
Lender for any loss or cost incurred by it resulting therefrom, including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain such Eurodollar Advance.
3.5. Taxes. (i) All payments by the Borrowers to or for the
account of any Lender or the Administrative Agent hereunder or under any Note
shall be made without setoff, counterclaim or other defense and free and clear
of, and without deduction or withholding for, any and all Taxes. If the
Borrowers shall be required by law to deduct or withhold any Taxes from or in
respect of any sum payable hereunder to any Lender or the Administrative Agent,
(a) the sum payable shall be increased as necessary so that after making all
required deductions or withholdings (including deductions or withholdings
applicable to additional sums payable under this Section 3.5) such Lender or the
Administrative Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions or withholdings been made, (b) the
Borrowers shall make such deductions or withholdings, (c) the Borrowers shall
pay the full amount deducted or withheld to the relevant authority in accordance
with applicable law and (d) the Borrowers shall furnish to the Administrative
Agent the original copy of a receipt evidencing payment thereof within 30 days
after such payment is made.
(ii) In addition, the Borrowers hereby agree 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 from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or any Note ("Other Taxes").
(iii) The Borrowers hereby agree to indemnify the Administrative
Agent and each Lender for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed on amounts payable under
this Section 3.5) paid by the Administrative Agent or such Lender and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. Payments due under this indemnification shall be made within 30
days of the date the Administrative Agent or such Lender makes demand therefor
pursuant to Section 3.6.
(iv) Each Lender that is not a United States person (as defined
in Section 7701(a)(30) of the Code) (each a "Non-U.S. Lender") agrees that it
will, not more than ten Business Days after the date of this Agreement, or, in
the case of a Lender that is an assignee or transferee of an interest under this
Agreement pursuant to Section 12.1 or 12.3 (unless the respective Lender was
already a Lender hereunder immediately prior to such assignment or transfer), on
the date of such assignment or transfer to such Lender, (i) deliver to each
Borrower and to the Administrative Agent two duly completed copies of United
States Internal Revenue Service Form W-8BEN or W-8ECI, certifying in either case
that such Lender is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes (or, with
respect to any assignee Lender, at least as extensive as the assigning Lender),
or (ii) if the Lender is not a "bank" within the meaning of Section 881(c)(3)(A)
of the Code and cannot deliver either Internal Revenue Service Form W-8BEN or
W-8ECI pursuant to clause (i) above, (x) a certificate substantially in the form
of Exhibit F (any such certificate, a "Tax Representation Certificate") and (y)
two accurate and complete original signed copies of Internal Revenue Service
Form W-8BEN certifying to such Lender's entitlement to a complete exemption from
United States withholding tax with respect to payments to be made under this
Agreement (or, with respect to any assignee Lender, at least as extensive as the
assigning Lender). At the request of either Borrower, each Lender that is a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) for U.S. federal income tax purposes (a "U.S. Lender"), other than a U.S.
Lender that is a corporation or financial institution (an "Exempt Lender"),
agrees to deliver to the Borrowers and to the Administrative Agent on or prior
to the Closing Date, or in the case of a U.S. Lender that is not an Exempt
Lender and that is an assignee or transferee of an interest under this Agreement
(unless the respective Lender was already a Lender hereunder immediately prior
to such assignment or transfer), on the date of such assignment or transfer to
such Lender, two accurate and complete original signed copies of Internal
Revenue Service Form W-9 (or successor form) in order to demonstrate such
Lender's entitlement to a complete exemption from United States back-up
withholding tax with respect to payments to be made under this Agreement. Each
Non-U.S. Lender further undertakes to deliver to each Borrower and to the
Administrative Agent (x) renewals or additional copies of such forms (or any
successor forms) 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 either Borrower or the Administrative
Agent. All forms or amendments described in the preceding sentence shall certify
that such Lender is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes, unless an
event (including without limitation any change in treaty, law or regulation or
any change in the interpretation or administration thereof) 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 Borrowers and the Administrative Agent that it is not capable
of receiving payments without any deduction or withholding of United States
federal income tax.
(v) For any period during which a Non-U.S. Lender has failed
to provide the Borrowers 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
Borrowers shall take such steps as such Non-U.S. Lender shall reasonably request
to assist such Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this Agreement or
any Note pursuant to the law of any relevant jurisdiction or any treaty shall
deliver to the Borrowers (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate.
3.6. Lender Statements; Survival of Indemnity. To the extent
reasonably possible and upon the request of either Borrower, each Lender shall
designate an alternate Lending Installation with respect to its Eurodollar Loans
to reduce any liability of the Borrowers to such Lender under Sections 3.1, 3.2
and 3.5 or to avoid the unavailability of Eurodollar Advances under Section 3.3,
so long as such designation is not, in the judgment of such Lender,
disadvantageous to such Lender. Each Lender shall deliver a written statement of
such Lender to the Borrowers (with a copy to the Administrative Agent) as to the
amount due, if any, under Section 3.1, 3.2, 3.4 or 3.5. Such written statement
shall set forth in reasonable detail the calculations upon which such Lender
determined such amount and shall be final, conclusive and binding on the
Borrowers in the absence of manifest error. Determination of amounts payable
under such Sections in connection with a Eurodollar Loan shall be calculated as
though each Lender funded its Eurodollar Loan through the purchase of a deposit
of the type and maturity corresponding to the deposit used as a reference in
determining the Eurodollar Rate applicable to such Loan, whether in fact that is
the case or not. Unless otherwise provided herein, the amount specified in the
written statement of any Lender shall be payable on demand after receipt by the
Borrowers of such written statement. The obligations of the Borrowers under
Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of the Obligations and
termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Advance.
The Lenders shall not be required to make the initial Advance
hereunder unless the following conditions have been satisfied:
(a) The Borrowers shall have furnished to the Sole Lead
Arranger and the Administrative Agent, with sufficient copies for the
Lenders, copies of the articles or certificate of incorporation of each
Borrower, together with all amendments, and a certificate of existence,
each certified by the appropriate governmental officer in its
jurisdiction of incorporation;
(b) The Borrowers shall have furnished to the Sole Lead
Arranger and the Administrative Agent, with sufficient copies for the
Lenders, copies, certified by the Secretary or Assistant Secretary of
each Borrower, of such Borrower's by-laws and of such Borrower's Board
of Directors' resolutions and of resolutions or actions of any other
body authorizing the execution of the Loan Documents;
(c) The Borrowers shall have furnished to the Sole Lead
Arranger and the Administrative Agent, with sufficient copies for the
Lenders, an incumbency certificate, executed by the Secretary or
Assistant Secretary of each Borrower, which shall identify by name and
title and bear the signatures of the Authorized Officers and any other
officers of such Borrower authorized to sign the Loan Documents, upon
which certificate the Administrative Agent and the Lenders shall be
entitled to rely until informed of any change in writing by such
Borrower;
(d) The Borrowers shall have furnished to the Sole Lead
Arranger and the Administrative Agent, with sufficient copies for the
Lenders, a written opinion of Borrowers' counsel in substantially the
form of Exhibit A;
(e) The Borrowers shall have furnished to the Sole Lead
Arranger and the Administrative Agent any Note requested by a Lender
pursuant to Section 2.13(iv);
(f) The Borrowers shall have furnished to the Sole Lead
Arranger and the Administrative Agent, written money transfer
instructions, in substantially the form of Exhibit D, addressed to the
Administrative Agent and signed by an Authorized Officer of each
Borrower, together with such other related money transfer
authorizations as the Administrative Agent may have reasonably
requested;
(g) Parent's long-term, senior unsecured, non-credit-enhanced
indebtedness shall be rated no lower than Baa1 by ▇▇▇▇▇'▇ or BBB+ by
S&P;
(h) The Sole Lead Arranger shall be reasonably satisfied with
the corporate structure and pro forma capitalization of Parent and the
Subsidiaries on a pro forma basis after giving effect to the
Transactions;
(i) The Transactions and the financing therefor shall be in
compliance with all material laws and regulations, or the Sole Lead
Arranger shall have determined such to be inapplicable to the
Transactions;
(j) Simultaneously with the making of the initial Advances,
the Acquisition shall have been consummated in all material respects in
accordance with the terms of the Acquisition Agreement;
(k) No law or regulation shall be applicable in the reasonable
judgment of the Sole Lead Arranger that restrains, prevents or imposes
material adverse conditions upon any material component of the
Transactions;
(l) There shall not have occurred or become known any Material
Adverse Effect or any condition or event that could reasonably be
expected to result in a Material Adverse Effect since December 31,
1999;
(m) All requisite governmental authorities and third parties
shall have approved or consented to the Transactions to the extent
required (without the imposition, in the reasonable judgment of the
Sole Lead Arranger, of any materially burdensome condition or
qualification), and all such approvals shall be in full force and
effect, and there shall be no governmental or judicial action, actual
or threatened, that has or could have a reasonable likelihood of
restraining, preventing or imposing materially burdensome conditions on
any of the Transactions;
(n) All accrued fees and expenses (including the reasonable
fees and expenses of counsel to the Sole Lead Arranger) of the Lenders
and the Sole Lead Arranger in connection with this Agreement and the
Fee Letter shall have been paid; and
(o) The Sole Lead Arranger shall have received such other
legal opinions, corporate documents and other instruments and/or
certificates as it may reasonably request.
4.2. Each Advance. The Lenders shall not be required to make
any Advance unless on the applicable Borrowing Date:
(i) No Default or Unmatured Default exists; and
(ii) The representations and warranties contained in Article V
are true and correct as of such Borrowing Date in all material respects
(except where such representation or warranty is already qualified as
to materiality, in which case such representation or warranty is true
in all respects) 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.
Each Borrowing Notice shall constitute a representation and warranty by each
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 an Advance. This
Section 4.2 shall not apply to conversions or continuations of outstanding
Advances.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Lenders that:
5.1. Existence and Standing. Each Borrower is a corporation
properly organized and validly existing under the laws of the State of Indiana;
each Subsidiary is a corporation, partnership or limited liability company duly
incorporated or organized, as the case may be, validly existing and (to the
extent such concept applies to such entity) in good standing under the laws of
its jurisdiction of incorporation or organization; and each Borrower and each
Subsidiary has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
5.2. Authorization and Validity. Each Borrower has the power
and authority and legal right to execute and deliver this Agreement and the
Notes (if any) and to perform its obligations hereunder and thereunder. The
execution and delivery by each Borrower of this Agreement and the Notes (if any)
and the performance of its obligations hereunder and thereunder have been duly
authorized by proper corporate proceedings. This Agreement constitutes, and when
duly executed and delivered any Note will constitute, a legal, valid and binding
obligation of each Borrower enforceable against each 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.
5.3. No Conflict; Government Consent. Neither the execution
and delivery by the Borrowers of this Agreement or any Note, nor the
consummation of the transactions contemplated hereby, nor compliance with the
provisions hereof, will violate (i) any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on either Borrower or any
Subsidiary or (ii) either Borrower's articles or certificate of incorporation or
by-laws or (iii) the provisions of any indenture, instrument or agreement to
which either Borrower or any Subsidiary is a party or is subject, or by which
either Borrower or any Subsidiary, or any of their respective 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 any Property of
either 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, that has not been obtained by the
Borrowers is required to be obtained by the Borrowers in connection with the
execution and delivery of this Agreement or any Note, the borrowings under this
Agreement, the payment and performance by the Borrowers of the Obligations or
the legality, validity, binding effect or enforceability of this Agreement or
any Note.
5.4. Financial Statements. The December 31, 1999 consolidated
financial statements of Parent and its Subsidiaries heretofore delivered to the
Lenders were prepared in accordance with GAAP and fairly present the
consolidated financial condition and operations of Parent and its Subsidiaries
at such date and the consolidated results of their operations for the period
then ended.
5.5. Material Adverse Change. Since December 31, 1999, there
has been no change in the business, Property, prospects, condition (financial or
otherwise) or results of operations of Parent and its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect.
5.6. Taxes. Each Borrower and its Subsidiaries have filed all
United States federal tax returns and all other tax returns, statements, forms
and reports for taxes which are required to be filed and have paid all taxes
which have become due or any assessment received by such Borrower or any of its
Subsidiaries, except such taxes, if any, as are being contested in good faith
and as to which adequate reserves have been provided in accordance with GAAP and
as to which no Lien exists. No tax liens have been filed and no material claims
are being asserted or, to the knowledge of each Borrower, threatened in writing
with respect to any such taxes. The charges, accruals and reserves on the books
of each Borrower and its Subsidiaries in respect of any taxes or other
governmental charges are adequate.
5.7. Litigation and Contingent Obligations. Except as set
forth in Parent's '34 Act Reports filed prior to the date hereof, (a) there is
no litigation, arbitration, governmental investigation, proceeding or inquiry
pending or, to the best of the knowledge of any of their officers, threatened
against or affecting either 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 Loan; and (b) as of the date hereof, the Borrowers and
its Subsidiaries have no material contingent obligations not provided for or
disclosed in the financial statements referred to in Section 5.4.
5.8. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations of all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the date of the most recent financial statements reflecting such amounts, exceed
the fair market value of the assets of all such underfunded Plans by an amount
that would be reasonably likely to result in a Material Adverse Effect. Each
ERISA Entity is in compliance with the presently applicable provisions of ERISA
and the Code with respect to each Plan and all other employee benefit plans
maintained or contributed to by the Borrowers or the Subsidiaries, except where
failure to comply could not reasonably be expected to have a Material Adverse
Effect. Using actuarial assumptions and computation methods consistent with
subpart 1 of subtitle E of Title IV of ERISA, the aggregate liabilities of any
of either Borrower or any Subsidiary in the event of a complete withdrawal from
a Multiemployer Plan, as of the close of the most recent fiscal year of each
Multiemployer Plan from which any ERISA Entity is reasonably expected to
withdraw, would not reasonably be expected to result in a Material Adverse
Effect. Each Foreign Plan (as defined below) has been maintained in compliance
with the requirements of any and all applicable laws, statutes, rules,
regulations and orders, except where failure to do so would not reasonably be
expected to result in a Material Adverse Effect. Neither Borrower nor any
Subsidiary have incurred any liability in connection with the termination of or
withdrawal from any Foreign Plan that could reasonably be expected to result in
a Material Adverse Effect. For purposes hereof, "Foreign Plan" shall mean any
pension benefit plan, program, policy, arrangement or agreement that is required
to be funded and that is maintained or contributed to by, or entered into with,
either Borrower or any Subsidiary with respect to employees employed outside the
United States.
5.9. Accuracy of Information. No information, exhibit,
financial statement, schedule or report furnished by either Borrower or any
Subsidiary to the Administrative Agent or to any Lender in connection with the
negotiation, preparation or delivery of, compliance with, the Loan Documents or
distributed in connection with the syndication of the Commitments and Loans and
the Loan Documents themselves, but in each case excluding all projections,
whether prior to or after the date of this Agreement, when taken as a whole,
contain any material misstatement of fact or omitted to state a material fact or
any fact necessary to make the statements contained therein not materially
misleading. The projections and pro forma financial information furnished at any
time by the Borrowers or any Subsidiary to any Lender pursuant to this Agreement
have been prepared in good faith based on assumptions believed by the Borrowers
to be reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein by a
material amount and no Borrower or Subsidiary, however, makes any representation
as to the ability of either Borrower or any Subsidiary to achieve the results
set forth in any such projections. Each Borrower and Subsidiary understands that
all such statements, representations and warranties shall be deemed to have been
relied upon by the Lenders as a material inducement to make each extension of
credit hereunder.
5.10. Regulation U. Neither Borrower nor any Subsidiary is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose, whether immediate, incidental or ultimate, of
buying or carrying Margin Stock. Margin Stock constitutes less than 25% of the
value of the assets (of Parent and its Subsidiaries taken as a whole) which are
subject to any limitation on sale, pledge or other restriction hereunder.
5.11. Material Agreements. Neither Borrower nor any Subsidiary
is a party to any agreement or instrument or subject to any charter or other
corporate restriction which is reasonably likely to have a Material Adverse
Effect. Neither 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.
5.12. Compliance With Laws. The Borrowers and the Subsidiaries
have complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property except for any failure
to comply with any of the foregoing which could not reasonably be expected to
have a Material Adverse Effect.
5.13. Ownership of Properties. Except as set forth on Schedule
1, on the date of this Agreement, the Borrowers and the Subsidiaries will have
good title, free of all Liens other than those permitted by Section 6.11, to all
of the Property and assets reflected in Parent's most recent consolidated
financial statements provided to the Administrative Agent as owned by Parent and
the Subsidiaries.
5.14. Plan Assets; Prohibited Transactions.Neither Borrower is
an entity deemed to hold "plan assets" within the meaning of 29 C.F.R. ss.
2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan (within the meaning of Section
4975 of the Code).
5.15. Environmental Matters. Except as set forth in Parent's
'34 Act Reports filed prior to the date hereof, there are no risks and
liabilities accruing to either Borrower due to Environmental Laws that could
reasonably be expected to have a Material Adverse Effect.
5.16. Investment Company Act. Neither Borrower nor any
Subsidiary is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
5.17. Public Utility Holding Company Act. Parent is a "holding
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended, but is exempt from registration thereunder pursuant to Section 3(a)
thereof.
5.18. Pari Passu Indebtedness. The Indebtedness under the Loan
Documents ranks at least pari passu with all other unsecured Indebtedness of the
Borrowers.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders
shall otherwise consent in writing:
6.1. Financial Reporting. Each Borrower will maintain, for
itself and each Subsidiary, a system of accounting established and administered
in accordance with GAAP, and furnish to the Lenders:
(i) Within 90 days after the close of each fiscal year, an
unqualified audit report certified by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or another
firm of independent certified public accountants that is a member of
the "Big Five", prepared in accordance with GAAP on a consolidated
basis for itself and its Subsidiaries, including balance sheets as of
the end of such period and related statements of income, retained
earnings and 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 audit
report, 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.
(ii) Within 45 days after the close of the first three
quarterly periods of each fiscal year, for itself and its Subsidiaries,
either (i) consolidated and consolidating unaudited balance sheets as
at the close of each 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, or (ii) if Parent is then a "registrant" within the
meaning of Rule 1-01 of Regulation S-X of the SEC and required to file
a report on Form 10-Q with the SEC, a copy of Parent's report on Form
10-Q for such quarterly period.
(iii) Together with the financial statements required under
Sections 6.1(i) and (ii), a compliance certificate in substantially the
form of Exhibit B, signed by each Borrower's Vice President and
Treasurer stating that no Default or Unmatured Default exists, or if
any Default or Unmatured Default exists, stating the nature and status
thereof.
(iv) Promptly, upon the occurrence of any ERISA Event that,
alone or together with any other ERISA Events that have occurred, could
reasonably be expected to result in liability of the Borrowers and the
Subsidiaries in an aggregate amount exceeding $20,000,000, a written
notice specifying the nature thereof, what action the Borrowers, the
Subsidiaries or other ERISA Entity have taken, are taking or propose to
take with respect thereto, and, when known, any action taken or
threatened by the Internal Revenue Service, Department of Labor, PBGC
or Multiemployer Plan sponsor with respect thereto.
(v) Upon request by the Administrative Agent, copies of: (i)
each Schedule B (Actuarial Information) to the annual report (Form 5500
Series) filed by any ERISA Entity with the Internal Revenue Service
with respect to each Plan maintained or contributed to by either
Borrower or any Subsidiary; (ii) the most recent actuarial valuation
report for each Plan; (iii) all notices received by any ERISA Entity
from a Multiemployer Plan sponsor or any governmental agency concerning
an ERISA Event; and (iv) such other documents or governmental reports
or filings relating to any Plan as the Administrative Agent shall
reasonably request.
(vi) Promptly upon the furnishing thereof to the shareholders
of Parent, copies of all financial statements, reports and proxy
statements so furnished.
(vii) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other regular
reports which Parent files with the SEC.
(viii) Such other information (including non-financial
information) as the Administrative Agent or any Lender may from time to
time reasonably request.
6.2. Use of Proceeds. No part of the proceeds of any extension
of credit hereunder will be used directly or indirectly and whether immediately,
incidentally or ultimately to purchase or carry any Margin Stock or to extend
credit to others for such purpose or to refund Indebtedness originally incurred
for such purpose. Each Borrower will use the proceeds of the Advances made to it
for general corporate purposes (including, without limitation, to finance the
Acquisition).
6.3. Notice of Default. Each 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, which could reasonably be
expected to have a Material Adverse Effect.
6.4. Conduct of Business. Each Borrower will, and will cause
each Subsidiary to, carry on and conduct its business 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 maintain all requisite authority to
conduct its business in each jurisdiction in which its business is conducted.
6.5. Taxes. Each Borrower will, and will cause each Subsidiary
to, timely file United States federal and applicable foreign, state and local
tax returns, statements, forms and reports required by law and pay when due all
taxes, assessments and governmental charges and levies upon it or its income,
profits or Property, except those which are being contested in good faith by
appropriate proceedings and as to which adequate reserves have been provided in
accordance with GAAP.
6.6. Insurance. Each 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 each Borrower will furnish to any
Lender upon request full information as to the insurance carried.
6.7. Compliance with Laws. Each Borrower will, and will cause
each Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject including,
without limitation, all Environmental Laws.
6.8. Maintenance of Properties. Each 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, and make all
necessary and proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted at all times.
6.9. Inspection. Each Borrower will, and will cause each
Subsidiary to, permit the Administrative Agent and the Lenders, by their
respective representatives and agents, to inspect any of the Property, books and
financial records of each Borrower and each Subsidiary, to examine and make
copies of the books of accounts and other financial records of each Borrower and
each Subsidiary, and to discuss the affairs, finances and accounts of each
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 Administrative
Agent or any Lender may designate. After the occurrence and during the
continuance of a Default, any such inspection shall be at the Borrowers'
expense; at all other times, the Borrowers shall not be liable to pay the
expenses of the Administrative Agent or any Lender in connection with such
inspections.
6.10. Consolidations, Mergers and Sale of Assets. (a) No
Borrower will, nor will it permit any Subsidiary to, sell, lease, transfer or
otherwise dispose of all or substantially all of the assets of Parent and its
Subsidiaries taken as a whole (whether by a single transaction or a number of
related transactions and whether at one time or over a period of time) or
consolidate with or merge into any Person or permit any Person to merge into it,
except
(i) Any Subsidiary of Parent may be merged into Parent (so
long as Parent is the survivor).
(ii) Any Subsidiary of Parent may sell all or substantially all
of its assets to, or consolidate with or into, Parent (subject to
clause (iii) below) or any Wholly-Owned Subsidiary of Parent.
(iii) Parent may sell all or substantially all of its assets to,
or consolidate with or merge into, any other corporation, or permit
another corporation to merge into it; provided, however, that (a) the
surviving corporation, if such surviving corporation is not of Parent,
or the transferee corporation in the case of a sale of all or
substantially all of Parent's assets, (1) shall be a corporation
organized and existing under the laws of the United States of America
or a state thereof or the District of Columbia, and (2) shall expressly
assume in writing the due and punctual payment of the Obligations and
the due and punctual performance of and compliance with all of the
terms of this Agreement and the Notes to be performed or complied with
by Parent, (b) immediately before and after such merger, consolidation
or sale, there shall not exist any Default or Unmatured Default and (c)
the surviving corporation of such merger or consolidation, or the
transferee corporation of the assets of Parent, as applicable, has,
both immediately before and after such merger, consolidation or sale, a
▇▇▇▇▇'▇ Rating of Baa3 or better or an S&P Rating of BBB- or better.
(b) No Borrower will, nor will it permit any Subsidiary to,
sell, lease, transfer or otherwise dispose of (each, a "Disposition") less than
all or substantially of the assets of Parent and its Subsidiaries taken as a
whole (whether by a single transaction or a number of related transactions and
whether at one time or over a period of time), except
(i) Sales of Property and services in the ordinary course of
business.
(ii) The pledge of Property pursuant to Section 6.11.
(iii) Dispositions by either Borrower to any Subsidiary of
Parent or by any Subsidiary of Parent to any other Subsidiary or to
either Borrower.
(iv) Dispositions of used, worn-out, obsolete or surplus
Property in the ordinary course of business and the abandonment or
other Disposition of intellectual property that is, in the reasonable
judgment of either Borrower, no longer economically practicable to
maintain or useful in the conduct of the business of Parent and its
Subsidiaries taken as a whole.
(v) The sale or discount without recourse of accounts
receivable or notes receivable arising in the ordinary course of
business, or the conversion or exchange of accounts receivable into or
for notes receivable, in connection with the compromise or collection
thereof.
(vi) Dispositions of Property that, together with all other
Property of Parent and its Subsidiaries previously leased, sold or
disposed of (other than inventory in the ordinary course of business)
as permitted by this Section 6.10 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
Parent and its Subsidiaries taken as a whole (except that for purposes
of this Section 6.10(b)(vi), references to "10%" in the definition of
Substantial Portion shall be deemed to be "20%").
6.11. Liens. No Borrower will, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Lien in, of or on the
Property of either Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or
levies 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 GAAP shall have been set aside on its books;
(ii) Liens imposed by law, such as carriers', warehousemen's
and mechanics' liens and other similar liens arising in the ordinary
course of business which secure payment of obligations not more than 60
days past due or which are being contested in good faith by appropriate
proceedings and for which adequate reserves shall have been set aside
on its books;
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions or other
social security or retirement benefits, or similar legislation;
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character
and which do not in any material way affect the marketability of the
same or interfere with the use thereof in the business of the Borrowers
or the Subsidiaries;
(v) Deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business by the Borrowers or any Subsidiary;
(vi) Liens existing on the date hereof and described in
Schedule 1;
(vii) Judgment Liens which secure payment of legal obligations
that would not constitute a Default under Section 7.9;
(viii) Liens on Property acquired by either Borrower or a
Subsidiary after the date hereof, existing on such Property at the time
of acquisition thereof (and not created in anticipation thereof),
provided that in any such case no such Lien shall extend to or cover
any other Property of such Borrower or such Subsidiary, as the case may
be; and
(ix) Liens which would otherwise not be permitted by clauses
(i) through (viii) securing additional Indebtedness of either Borrower
or a Subsidiary; provided that after giving effect thereto the
aggregate unpaid principal amount of Indebtedness (including, without
limitation, Capitalized Lease Obligations) of Parent and the
Subsidiaries secured by such Liens permitted by this clause (ix) shall
not exceed $75,000,000.
6.12. Transactions with Affiliates. No Borrower will, nor will
it permit any Subsidiary to, enter into any transaction (including, without
limitation, the purchase or sale of any Property or service) with, or make any
payment or transfer to, any Affiliate (other than either Borrower or a
Wholly-Owned Subsidiary) except in the ordinary course of business and pursuant
to the reasonable requirements of such Borrower's or such Subsidiary's business
and upon fair and reasonable terms no less favorable to such Borrower or such
Subsidiary than such Borrower or such Subsidiary would obtain in a comparable
arm's-length transaction.
6.13. Maintenance of Indebtedness to Capitalization Ratio.
Parent will not at any time permit the ratio of Consolidated Total Indebtedness
to Consolidated Total Capitalization to be greater than 0.65 to 1.
6.14. Limitation on Certain Restrictions Affecting
Subsidiaries. Neither Borrower shall, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any direct or indirect
encumbrance or restriction on the ability of any Subsidiary of such Borrower to
(a) pay dividends or make any other distributions on such Subsidiary's capital
stock or any other interest or participation in its profits owned by either
Borrower, or pay any Indebtedness or any other obligation owed to either
Borrower, (b) make investments in or to either Borrower, or (c) transfer any of
its Property to either Borrower, except that each of the following shall be
permitted: (i) any such encumbrances or restrictions existing on the date of
this Agreement and described on Schedule 2 or existing under or by reason of (x)
applicable law or (y) the Loan Documents, (ii) restrictions on the transfer of
Property subject to a Lien permitted under Section 6.11, and (iii) customary
restrictions on subletting or assignment of any lease governing a leasehold
interest of any Borrower.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events
shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or
on behalf of either Borrower to the Lenders or the Administrative Agent under or
in connection with this Agreement or any Loan, or any certificate or information
delivered in connection with this Agreement, shall be false in any material
respect on the date as of which made.
7.2. Nonpayment of principal of any Loan when due; or
nonpayment of interest upon any Loan or of any facility fee or utilization fee
or other obligation under any of the Loan Documents within five days after the
same becomes due.
7.3. The breach by either Borrower of any of the terms or
provisions of Section 6.2, 6.10, 6.11, 6.12 or 6.13.
7.4. The breach by either Borrower (other than a breach which
constitutes a Default under another Section of this Article VII) of any term or
provision of this Agreement which is not remedied within 30 days after written
notice from the Administrative Agent or any Lender.
7.5. Failure of either Borrower or any Subsidiary to pay when
due any Indebtedness (other than the Loans) aggregating in excess of $20,000,000
("Material Indebtedness"); or default by either Borrower or any Subsidiary in
the performance of any term, provision or condition contained in any agreement
or agreements under which any Material Indebtedness was created or is governed,
or the occurrence of any other event or the existence of any other condition,
the effect of which default or event or condition 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 either 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 either Borrower or
any Subsidiary shall not pay, or admit in writing its inability to pay, its
debts generally as they become due.
7.6. Either 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 other organizational action to authorize or effect any of
the foregoing actions set forth in this Section 7.6 or (vi) fail to contest in
good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of either
Borrower or any Subsidiary, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for such Borrower or such Subsidiary or any
Substantial Portion of its Property, or a proceeding described in Section
7.6(iv) shall be instituted against either Borrower or any Subsidiary, and such
appointment shall continue undischarged or such proceeding shall continue
undismissed or unstayed for a period of 60 consecutive days.
7.8. Any court, government or governmental agency shall
condemn, seize or otherwise appropriate, or take custody or control of, all or
any portion of the Property of either Borrower or any Subsidiary which, when
taken together with all other Property of the Borrowers and the Subsidiaries so
condemned, seized, appropriated, or taken custody or control of, during the
twelve-month period ending with the month in which any such action occurs,
constitutes a Substantial Portion.
7.9. Either Borrower or any Subsidiary shall fail within 30
days to pay, bond or otherwise discharge any judgment or order for the payment
of money in excess of $20,000,000 (either singly or in the aggregate with other
such judgments), which is not stayed on appeal or otherwise being appropriately
contested in good faith.
7.10. Any Change of Control shall occur.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. If any Default described in Section 7.6 or
7.7 occurs with respect to either Borrower, the obligations of the Lenders to
make Loans hereunder (and to effect any conversion pursuant to Section 2.19)
shall automatically terminate and the Obligations shall immediately become due
and payable without any election or action on the part of the Administrative
Agent or any Lender. If any other Default occurs, the Required Lenders (or the
Administrative Agent with the consent of the Required Lenders) may terminate or
suspend the obligations of the Lenders to make Loans hereunder, or declare the
Obligations to be due and payable, or both, whereupon the obligations of the
Lenders to make Loans hereunder shall immediately 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 each Borrower
hereby expressly waives.
If, within 30 days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
hereunder as a result of any Default (other than any Default as described in
Section 7.6 or 7.7 with respect to either 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
Administrative Agent shall, by notice to the Borrowers, rescind and annul such
acceleration and/or termination.
8.2. Amendments. Subject to the provisions of this Article
VIII, the Required Lenders (or the Administrative Agent with the consent in
writing of the Required Lenders) and the Borrowers 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
Borrowers hereunder or waiving any Default hereunder; provided, however, that no
such supplemental agreement shall, without the consent of (a) in the case of
clauses (i) and (iii), all Lenders directly affected thereby and (b) in clauses
(ii), (iv), (v) and (vi) all of the Lenders:
(i) Increase the commitment of any Lender or extend the final
maturity of any Loan, forgive all or any portion of the principal
amount thereof, or reduce the rate (including by virtue of any change
to the Pricing Schedule) or extend the time of payment of interest or
fees thereon.
(ii) Reduce the percentage specified in the definition of
Required Lenders.
(iii) Extend the Facility Termination Date, or reduce the
amount or extend the payment date for, the mandatory payments required
under Section 2.2, or increase the amount of the Commitment of any
Lender hereunder, or permit the Borrowers to assign their rights under
this Agreement (except as permitted by Section 6.10(iii)).
(iv) Change the currency in which any Loan is payable;
(v) Amend this Section 8.2 or Section 11.2; or
(vi) Change any term or provision of Section 2.19 or Section
9.13.
No amendment of any provision of this Agreement relating to
the Administrative Agent shall be effective without the written consent of the
Administrative Agent. The Administrative Agent may waive payment of the fee
required under Section 12.3.2 without obtaining the consent of any other party
to this Agreement.
8.3. Preservation of Rights. No delay or omission of the
Lenders or the Administrative 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 Loan notwithstanding the
existence of a Default or the inability of the Borrowers to satisfy the
conditions precedent to such Loan 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 Administrative Agent and the Lenders until the Obligations have been paid
in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and
warranties of each Borrower contained in this Agreement shall survive the making
of the Loans herein contemplated.
9.2. Governmental Regulation. Anything contained in this
Agreement to the contrary notwithstanding, no Lender shall be obligated to
extend credit to either Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.
9.3. Headings. Section headings in this Agreement are for
convenience of reference only and shall not govern the interpretation of any
provision of this Agreement.
9.4. Entire Agreement. The Loan Documents embody the entire
agreement and understanding among the Borrowers, the Administrative Agent and
the Lenders and supersede all prior agreements and understandings among the
Borrowers, the Administrative Agent and the Lenders relating to the subject
matter thereof other than the fee letter described in Section 10.13.
9.5. Several Obligations; Benefits of This Agreement. The
respective obligations of the Lenders hereunder are several and not joint and no
Lender shall be the partner or agent of any other (except to the extent to which
the Administrative Agent is authorized to act as such). The failure of any
Lender to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns; provided,
however, that the parties hereto expressly agree that the Sole Lead Arranger
shall enjoy the benefits of the provisions of Sections 9.6, 9.10 and 10.11 to
the extent specifically set forth therein and shall have the right to enforce
such provisions on its own behalf and in its own name to the same extent as if
it were a party to this Agreement.
9.6. Expenses; Indemnification. (i) The Borrowers agree,
jointly and severally, to reimburse the Administrative Agent and the Sole Lead
Arranger for any reasonable costs, internal charges and out-of-pocket expenses
(including attorneys' fees and time charges of attorneys for the Administrative
Agent and the Sole Lead Arranger, which attorneys may be employees of the
Administrative Agent and all local counsel deemed necessary by the
Administrative Agent) paid or incurred by the Administrative Agent or the Sole
Lead Arranger in connection with the preparation, negotiation, execution,
delivery, syndication, review, amendment, modification, and administration of
the Loan Documents whether or not any Loans are made hereunder (and, with
respect to any amendment or modification, whether or not effective). The
Borrowers also agree, jointly and severally, to reimburse the Administrative
Agent, the Sole Lead Arranger and the Lenders for any costs, internal charges
and out-of-pocket expenses (including attorneys' fees and time charges of
attorneys for the Administrative Agent, the Sole Lead Arranger and the Lenders,
which attorneys may be employees of the Administrative Agent, the Sole Lead
Arranger or the Lenders) paid or incurred by the Administrative Agent, the Sole
Lead Arranger or any Lender in connection with the collection and enforcement of
the Loan Documents.
(ii) The Borrowers hereby further agree, jointly and
severally, to indemnify the Administrative Agent, the Sole Lead Arranger, the
Syndication Agent and each Lender, its directors, officers and employees against
all losses, claims, damages, penalties, judgments, liabilities and expenses
(including, without limitation, all expenses of litigation or preparation
therefor whether or not the Administrative Agent, the Sole Lead Arranger, the
Syndication Agent or any Lender is a party thereto) which any of them may pay or
incur arising out of or relating to this Agreement, the other Loan Documents,
the transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Loan hereunder except to the extent
that they are determined in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the party seeking indemnification. The obligations of the
Borrowers under this Section 9.6 shall survive the payment of the Obligations
and termination of this Agreement.
9.7. Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Administrative Agent
with sufficient counterparts so that the Administrative Agent may furnish one to
each of the Lenders.
9.8. Accounting. Except as provided to the contrary herein,
all accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP.
9.9. Severability of Provisions. Any provision in any Loan
Document that is held to be inoperative, unenforceable or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable or
invalid without affecting the remaining provisions in that jurisdiction or the
operation, enforceability or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.10. Nonliability of Lenders. The relationship between the
Borrowers on the one hand and the Lenders and the Administrative Agent on the
other hand shall be solely that of borrower and lender. None of the
Administrative Agent, the Sole Lead Arranger, the Syndication Agent or any
Lender shall have any fiduciary responsibility to the Borrowers. None of the
Administrative Agent, the Sole Lead Arranger or any Lender undertakes any
responsibility to the Borrowers to review or inform the Borrowers of any matter
in connection with any phase of the Borrowers' business or operations. Each
Borrower agrees that none of the Administrative Agent, the Sole Lead Arranger or
any Lender shall have liability to the Borrowers (whether sounding in tort,
contract or otherwise) for losses suffered by either 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. None of the Administrative Agent, the Sole Lead Arranger,
the Syndication Agent or any Lender shall have any liability with respect to,
and each Borrower hereby waives, releases and agrees not to ▇▇▇ for, any
special, indirect or consequential damages suffered by either Borrower in
connection with, arising out of, or in any way related to the Loan Documents or
the transactions contemplated thereby.
9.11. Confidentiality. Each Lender agrees to hold any
confidential information which it may receive from either 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, (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.
9.12. Nonreliance. Each Lender hereby represents that it is
not relying on or looking to any Margin Stock for the repayment of any Loan
provided for herein.
9.13. Joint and Several Liability. (a) The Borrowers shall
have joint and several liability in respect of all Obligations hereunder and
under any other Loan Documents to which either Borrower is a party, without
regard to any defense (other than the defense that payment in full has been
made), set-off or counterclaim which may at any time be available to or be
asserted by the other Borrower against the Lenders, or by any other circumstance
whatsoever (with or without notice to or knowledge of the Borrowers) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of the Borrowers' liability hereunder, in bankruptcy or in any other
instance, and the Obligations of the Borrowers hereunder shall not be
conditioned or contingent upon the pursuit by the Lenders or any other Person at
any time of any right or remedy against the Borrowers or against any other
Person which may be or become liable in respect of all or any part of the
Obligations or against any guarantee therefor or right of offset with respect
thereto. The Borrowers hereby acknowledge that this Agreement is the independent
and several obligation of each Borrower (regardless of which Borrower shall have
delivered a Notice of Borrowing) and may be enforced against each Borrower
separately, whether or not enforcement of any right or remedy hereunder has been
sought against the other Borrower. Each Borrower hereby expressly waives, with
respect to any of the Loans made to the other Borrower hereunder and any of the
amounts owing hereunder by such other Borrower in respect of such Loans,
diligence, presentment, demand of payment, protest and all notices whatsoever,
and any requirement that the Administrative Agent or any Lender exhaust any
right, power or remedy or proceeds against such other Borrower under this
Agreement or any other agreement or instrument referred to herein, or against
any other Person under any other guarantee of, or security for, any of such
amounts owing hereunder.
(b) Notwithstanding any other provisions of this Agreement or
the other Loan Documents, the maximum aggregate amount for which VUHI shall be
liable hereunder with respect to Loans to Parent and other Obligations of Parent
shall equal the greater of (i) 95% of the excess of the fair saleable value of
the property of VUHI over the total liabilities of VUHI (including the maximum
amount reasonably expected to become due in respect of contingent liabilities,
other than any such contingent liabilities hereunder and under the other Loan
Documents), such excess to be determined on the date hereof or the date on
which, from time to time, enforcement against VUHI of its joint and several
liability hereunder is sought by the Administrative Agent or a Lender or
realization against any of the property or assets of VUHI is effected by the
Administrative Agent or a Lender, whichever is higher, and (ii) the maximum
aggregate amount of Obligations which does not render this Section 9.13, as it
relates to VUHI, void or voidable under applicable laws relating to fraudulent
conveyance or fraudulent transfer. Subject to the preceding sentence, each
Borrower understands, agrees and confirms that each Borrower shall be liable for
payment of Obligations when due and not for collection thereof and that each
Lender may, from time to time, enforce this provision against either Borrower up
to the full amount of the Obligations owed to such Lender without proceeding
against the other Borrower, against any security for the Obligations, against
any guarantor or under any guarantee covering the Obligations.
ARTICLE X
THE AGENTS
10.1. Appointment; Nature of Relationship. Credit Suisse First
Boston is hereby appointed by each of the Lenders as Administrative Agent
hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Administrative Agent to act as the contractual
representative of such Lender with the rights and duties expressly set forth
herein and in the other Loan Documents. The Administrative Agent agrees to act
as such contractual representative upon the express conditions contained in this
Article X. Notwithstanding the use of the defined term "Administrative Agent,"
it is expressly understood and agreed that the Administrative Agent shall not
have any fiduciary responsibility to any Lender by reason of this Agreement or
any other Loan Document and that the Administrative Agent is merely acting as
the contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Administrative Agent
(i) does not hereby assume any fiduciary duty to any Lender, (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 Administrative Agent on any agency theory or any other theory of
liability for breach of fiduciary duty, all of which claims each Lender hereby
waives. Each Lender hereby appoints ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated as Syndication Agent and ABN AMRO as Documentation
Agent. Neither the Syndication Agent nor the Documentation Agent, in its
capacity as such, shall have any rights, duties or responsibilities hereunder or
under any other Loan Document.
10.2. Powers. The Administrative Agent shall have and may
exercise such powers under the Loan Documents as are specifically delegated to
the Administrative Agent by the terms of each thereof, together with such powers
as are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Administrative Agent.
10.3. General Immunity. Neither the Administrative Agent nor
any of its directors, officers, agents or employees shall be liable to either
Borrower or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is determined in a final
non-appealable judgment by a court of competent jurisdiction to have arisen from
the gross negligence or willful misconduct of such Person.
10.4. No Responsibility for Loans, Recitals, etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into or verify
(a) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (b) the performance or observance of any
covenant or agreement of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Administrative Agent;
(d) the existence or possible existence of any Default or Unmatured Default; (e)
the validity, enforceability, effectiveness, sufficiency or genuineness of any
Loan Document or any other instrument or writing furnished in connection
therewith; (f) the value, sufficiency, creation, perfection or priority of any
Lien in any collateral security; or (g) the financial condition of Parent, VUHI
or any guarantor of any of the Obligations or of any of Parent's, VUHI's or any
such guarantor's respective Subsidiaries. The Administrative Agent shall have no
duty to disclose to the Lenders information that is not required to be furnished
by the Borrowers to the Administrative Agent at such time, but is voluntarily
furnished by either Borrower to the Administrative Agent (either in its capacity
as Administrative Agent or in its individual capacity).
10.5. Action on Instructions of Lenders. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders, and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders. The Lenders hereby acknowledge that the Administrative Agent shall be
under no duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement or any other Loan Document unless
it shall be requested in writing to do so by the Required Lenders. The
Administrative Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
10.6. Employment of Administrative Agent and Counsel. The
Administrative Agent may execute any of its duties as Administrative Agent
hereunder and under any other Loan Document by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Lenders, except as to money
or securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Administrative Agent shall be entitled to advice of counsel
concerning the contractual arrangement between the Administrative Agent and the
Lenders and all matters pertaining to the Administrative Agent's duties
hereunder and under any other Loan Document.
10.7. Reliance on Documents; Counsel. The Administrative Agent
shall be entitled to rely upon any Note, notice, consent, certificate,
affidavit, letter, telegram, statement, paper or document believed by it to be
genuine and correct and to have been signed or sent by the proper person or
persons, and, in respect to legal matters, upon the opinion of counsel selected
by the Administrative Agent, which counsel may be employees of the
Administrative Agent.
10.8. Administrative Agent's Reimbursement and
Indemnification. The Lenders agree to reimburse and indemnify the Administrative
Agent ratably in proportion to their respective Commitments (or, if the
Commitments have been terminated, in proportion to their Commitments immediately
prior to such termination) (i) for any out-of-pocket costs and expenses (but not
internal charges) not reimbursed by the Borrowers for which the Administrative
Agent is entitled to reimbursement by the Borrowers under the Loan Documents,
(ii) for any other expenses incurred by the Administrative Agent on behalf of
the Lenders in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents (including, without
limitation, for any expenses incurred by the Administrative Agent in connection
with any dispute between the Administrative Agent and any Lender or between two
or more of the Lenders) and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Administrative Agent in any way relating to or arising out
of the Loan Documents or any other document delivered in connection therewith or
the transactions contemplated thereby (including, without limitation, for any
such amounts incurred by or asserted against the Administrative Agent in
connection with any dispute between the Administrative Agent and any Lender or
between two or more of the Lenders), or the enforcement of any of the terms of
the Loan Documents or of any such other documents; provided that no Lender shall
be liable for any of the foregoing to the extent any of the foregoing is found
in a final non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Administrative
Agent. The obligations of the Lenders under this Section 10.8 shall survive
payment of the Obligations and termination of this Agreement.
10.9. Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Unmatured
Default hereunder unless the Administrative Agent has received written notice
from a Lender or Borrower referring to this Agreement describing such Default or
Unmatured Default and stating that such notice is a "notice of default." In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give prompt notice thereof to the Lenders.
10.10. Rights as a Lender. In the event the Administrative
Agent is a Lender, the Administrative Agent shall have the same rights and
powers hereunder and under any other Loan Document with respect to its
Commitment and its Loans as any Lender and may exercise the same as though it
were not the Administrative Agent, and the term "Lender" or "Lenders" shall, at
any time when the Administrative Agent is a Lender, unless the context otherwise
indicates, include the Administrative Agent in its individual capacity. The
Administrative Agent and its Affiliates may accept deposits from, lend money to,
and generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with either Borrower or any of its Subsidiaries, in which such Borrower or such
Subsidiary is not restricted hereby from engaging with any other Person.
10.11. Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon the Administrative Agent, the
Sole Lead Arranger or any other Lender and based on the financial statements
prepared by Parent and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and the other Loan Documents. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent, the Sole
Lead Arranger or any other Lender and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement and the other Loan
Documents.
10.12. Successor Administrative Agent. The Administrative
Agent may resign at any time by giving written notice thereof to the Lenders and
the Borrowers, such resignation to be effective upon the appointment of a
successor Administrative Agent or, if no successor Administrative Agent has been
appointed, forty-five days after the retiring Administrative Agent gives notice
of its intention to resign. The Administrative Agent may be removed at any time
with or without cause by written notice received by the Administrative Agent
from the Required Lenders, such removal to be effective on the date specified by
the Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint, on behalf of the Borrowers and the Lenders, a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Required Lenders within thirty days after the resigning
Administrative Agent's giving notice of its intention to resign, then the
resigning Administrative Agent may appoint, on behalf of the Borrowers and the
Lenders, a successor Administrative Agent. Notwithstanding the previous
sentence, the Administrative Agent may at any time without the consent of the
Borrowers or any Lender, appoint any of its Affiliates which is a commercial
bank as a successor Administrative Agent hereunder. If the Administrative Agent
has resigned or been removed and no successor Administrative Agent has been
appointed, the Lenders may perform all the duties of the Administrative Agent
hereunder, and the Borrowers shall make all payments in respect of the
Obligations to the applicable Lender and for all other purposes shall deal
directly with the Lenders. No successor Administrative Agent shall be deemed to
be appointed hereunder until such successor Administrative Agent has accepted
the appointment. Any such successor Administrative Agent shall be a commercial
bank having capital and retained earnings of at least $100,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the resigning or removed Administrative Agent. Upon the effectiveness of the
resignation or removal of the Administrative Agent, the resigning or removed
Administrative 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 Administrative Agent, the provisions of this
Article X shall continue in effect for the benefit of such Administrative Agent
in respect of any actions taken or omitted to be taken by it while it was acting
as the Administrative Agent hereunder and under the other Loan Documents. In the
event that there is a successor to the Administrative Agent by merger, or the
Administrative Agent assigns its duties and obligations to an Affiliate pursuant
to this Section 10.12, then the term "Prime Rate" as used in this Agreement
shall mean the prime rate, base rate, corporate base rate or other analogous
rate of the new Administrative Agent.
10.13. Administrative Agent's Fee. The Borrowers agree,
jointly and severally, to pay to the Administrative Agent, for its own account,
the fees agreed to by Parent and the Administrative Agent from time to time.
10.14. Delegation to Affiliates. The Borrowers and the Lenders
agree that the Administrative Agent may delegate any of its duties under this
Agreement to any of its Affiliates. Any such Affiliate (and such Affiliate's
directors, officers, agents and employees) that performs duties in connection
with this Agreement shall be entitled to the same benefits of the
indemnification, waiver and other protective provisions to which the
Administrative Agent is entitled under Articles IX and X.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any
rights of the Lenders under applicable law, if either Borrower becomes
insolvent, however evidenced, or any Default occurs, any and all deposits
(including all account balances, whether provisional or final and whether or not
collected or available) and any other Indebtedness at any time held or owing by
any Lender or any Affiliate of any Lender to or for the credit or account of the
Borrowers may be offset and applied toward the payment of the Obligations owing
to such Lender, whether or not the Obligations, or any part hereof, shall then
be due.
11.2. Ratable Payments. Each of the Lenders agrees that if any
Lender, whether by voluntary payment, by realization upon security, by the
exercise of the right to setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Loan Documents or otherwise,
has payment made to it upon any amount hereunder (other than payments received
pursuant to Section 3.1, 3.2, 3.4 or 3.5) which is applicable to the payment of
principal of or interest on the Loans or fees the sum of which with respect to
the related sum or sums received by other Lenders is in a greater proportion
than the total of such amounts then owed and due to such Lender bears to the
total of such amounts then owed and due to all of the Lenders immediately prior
to such receipt, such Lender agrees, to purchase for cash, without recourse or
warranty, a portion of the Loans held by the other Lenders so that after such
purchase each Lender will hold its ratable proportion of Loans, provided,
however, that if all or any portion of such excess amount is thereafter
recovered from such Lender, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest. 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 Loans. In case any
such payment is distributed by legal process, or otherwise, appropriate further
adjustments shall be made. Each Borrower consents to the foregoing arrangements.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and provisions of the
Loan Documents shall be binding upon and inure to the benefit of the Borrowers
and the Lenders and their respective successors and assigns, except that (i) the
Borrowers shall not have the right to assign their rights or obligations under
the Loan Documents (except as provided in Section 6.10(iii)), and (ii) any
assignment by any Lender must be made in compliance with Section 12.3.
Notwithstanding clause (ii) above, any Lender may at any time, without the
consent of the Borrowers or the Administrative Agent, assign all or any portion
of its rights under this Agreement and any Note to a Federal Reserve Bank;
provided, however, that no such assignment to a Federal Reserve Bank shall
release the transferor Lender from its obligations hereunder. The Administrative
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 in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with the Administrative
Agent. Any assignee or transferee of the rights to any Loan or any Note agrees
by acceptance of such transfer or 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, transferee or assignee of the rights to such Loan.
12.2. Participations.
12.2.1. Permitted Participants; Effect. Any Lender
may, in the ordinary course of its business and in accordance with
applicable law, at any time sell or agree to sell to one or more banks
or other Persons (each, a "Participant") participating interests in all
or any part of any Loan owing to such Lender, any Note held by such
Lender, any Commitment of such Lender or any other interest of such
Lender under the Loan Documents, in which each Participant shall be
entitled to the rights and benefits of the provisions of Article III
(provided, however, that no Participant shall be entitled to receive
any greater amount pursuant to Article III than the transferor Lender
would have been entitled to receive in respect of the participation
effected by such transferor Lender had no participation occurred) with
respect to its participation in such Loans, Notes and Commitments as if
such Participant were a "Lender" for purposes of Article III, but,
except as otherwise provided in Section 12.2.3, shall not have any
other rights or benefits under any Loan Document (the Participant's
rights against such Lender in respect of such participation to be those
set forth in the agreements executed by such Lender in favor of the
Participant). All amounts payable by either Borrower to any Lender
under Article III in respect of Loans, Notes and its Commitments shall
be no greater than the amount that would have applied if such Lender
had not sold or agreed to sell any participation in such Loans, Notes
and Commitments, and as if such Lender were funding each of such Loan,
Notes and Commitments in the same way that it is funding the portion of
such Loan, Notes and Commitments in which no participations have been
sold.
12.2.2. Voting Rights. In no event shall a Lender
that sells a participation agree with the Participant to take or
refrain from taking any action hereunder or under any other Loan
Document, except that such Lender may agree with the Participant that
it will not, without the consent of the Participant, agree to any
modification or amendment set forth in clauses (i), (iii), (iv), (v) or
(vi) of the proviso to Section 8.2 to the extent such Lender's consent
is required therefor.
12.2.3. Benefit of Setoff. Each 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.
12.3. Assignments.
12.3.1. Permitted Assignments. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time assign (which may be non-pro rata among Loans and
Commitments) to one or more Eligible Persons (each, a "Purchaser") all
or any part of its rights and obligations under the Loan Documents only
with the consent (which shall not be unreasonably withheld, delayed or
conditioned) of each Borrower, the Sole Lead Arranger and the
Administrative Agent; provided, however, that (i) no consent of either
Borrower, the Sole Lead Arranger or the Administrative Agent shall be
required in the case of any assignment to another Lender or any
Lender's Affiliate or an Approved Fund of any Lender (in which case,
the assignee and assignor Lenders shall give notice of the assignment
to the Sole Lead Arranger and the Administrative Agent); (ii) no
consent of either Borrower, the Sole Lead Arranger or the
Administrative Agent need be obtained if any Default shall have
occurred and be continuing; (iii) each assignment, other than to a
Lender or any Lender's Affiliate or an Approved Fund of any Lender and
other than any assignment effected by the Sole Lead Arranger or any of
its Affiliates in connection with the syndication of the Commitments
and/or Loans or otherwise, shall not reduce the assignor's Loans and
Commitments to less than $5.0 million (unless reduced to $0 or unless
each Borrower and the Sole Lead Arranger otherwise consent) and shall
be in an aggregate amount of at least $5.0 million (unless the
assignor's Loans and Commitments are reduced to $0 or unless each
Borrower and the Sole Lead Arranger otherwise consent) and (iv) in no
event may any such assignment be made to either Borrower or any of its
Affiliates without consent of all Lenders unless the Purchaser agrees
in writing that its Loans or Notes shall not be deemed outstanding for
any matter under Section 8.2 or any other vote or consent of the
Lenders under the Loan Documents of the Loans or Commitments. Each
assignment shall be made pursuant to an agreement substantially in the
form of Exhibit C or such other form as shall be consented to by the
Sole Lead Arranger (an "Assignment Agreement").
12.3.2. Effect; Effective Date. Upon (i) delivery to
the Administrative Agent of a notice of assignment, substantially in
the form attached as Exhibit I to Exhibit C (a "Notice of Assignment"),
together with any consents required by Section 12.3.1, and (ii) for any
assignment by Persons other ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation and
its Affiliates, payment of a $3,500 fee to the Administrative Agent for
processing such assignment, such assignment shall become effective on
the effective date specified in such Notice of Assignment. The
Assignment Agreement shall contain a representation by the Purchaser to
the effect that none of the consideration used to make the purchase of
the Commitment and Loans under the applicable assignment agreement are
"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 Borrowers, the Lenders
or the Administrative 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 Administrative Agent and the Borrowers 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.
12.4. Pledges to Federal Reserve Bank. In addition to the
assignments and participations permitted under the foregoing provisions of this
Article XII, any Lender may assign and pledge all or any part of its rights and
obligations under the Loan Documents to any United States Federal Reserve Bank
as collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank and, in the case of a Lender that is a fund that invests in bank loans, any
such Lender may assign or pledge all or any part of rights and obligations under
the Loan Documents to any holders of obligations owed, or securities issued, by
such fund, as security for such obligations or securities, or to any trustee
for, or any other representative of, such holders, without notice to or consent
of the Borrowers, the Administrative Agent or the Sole Lead Arranger. Any
transfer as a result of the foreclosure on such pledge shall be subject to
Section 12.3. No such assignment shall release the assigning Lender from its
obligations hereunder.
12.5. Dissemination of Information. A Lender may furnish any
information concerning the Borrowers and the Subsidiaries in the possession of
such Lender from time to time to assignees and participants (including
prospective assignees and participants) subject, however, to and so long as the
recipient agrees to be bound by the provisions of Section 9.11. In addition, the
Sole Lead Arranger may furnish any information concerning the Borrowers and the
Subsidiaries in the Sole Lead Arranger's possession to any of its Affiliates,
subject, however, to the provisions of Section 9.11. The Borrower and the
Subsidiaries shall assist the Sole Lead Arranger and any Lender in effectuating
any assignment or participation pursuant to this Article XII (including during
syndication) in whatever manner the Sole Lead Arranger or such Lender reasonably
deems necessary.
12.6. 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).
12.7. Designation. (a) Notwithstanding anything to the
contrary contained herein, any Lender (a "Designating Lender") may grant to one
or more special purpose funding vehicles (each, an "SPV"), identified as such in
writing from time to time by the Designating Lender to the Administrative Agent
and Parent, the option to provide to the Borrowers all or any part of any Loan
that such Designating Lender would otherwise be obligated to make to the
Borrowers pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPV to make any Loan, (ii) if an SPV elects not
to exercise such option or otherwise fails to provide all or any part of such
Loan, the Designating Lender shall be obligated to make such Loan pursuant to
the terms hereof, and (iii) the Designating Lender shall remain liable for any
indemnity or other payment obligation with respect to its Commitment hereunder.
The making of a Loan by an SPV hereunder shall utilize the Commitment of the
Designating Lender to the same extent, and as if, such Loan were made by such
Designating Lender.
(b) As to any Loans or portion thereof made by it, each SPV
shall have all the rights that a Lender making such Loans or portion thereof
would have had under this Agreement; provided, however, that each SPV shall have
granted to its Designating Lender an irrevocable power of attorney, to deliver
and receive all communications and notices under this Agreement and any other
Loan Documents and to exercise on such SPV's behalf, all of such SPV's voting
rights under this Agreement. No additional Note shall be required to evidence
the Loans or portion thereof made by an SPV; and the related Designating Lender
shall be deemed to hold its Note as agent for such SPV to the extent of the
Loans or portion thereof funded by such SPV. In addition, any payments for the
account of any SPV shall be paid to its Designating Lender as agent for such
SPV.
(c) Each party hereto hereby agrees that no SPV shall be
liable for any indemnity or payment under this Agreement for which a Lender
would otherwise be liable. In furtherance of the foregoing, each party hereto
hereby agrees (which agreements shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior indebtedness of any SPV, it
will not institute against, or join any other person in instituting against,
such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof.
(d) In addition, notwithstanding anything to the contrary
contained in this Section 12.7 or otherwise in this Agreement, any SPV may (i)
at any time and without paying any processing fee therefor, assign or
participate all or a portion of its interest in any Loans to the Designating
Lender or to any financial institutions providing liquidity and/or credit
support to or for the account of such SPV to support the funding or maintenance
of Loans and (ii) disclose on a confidential basis any non-public information
relating to its Loans to any rating agency, commercial paper dealer or provider
of any surety, guarantee or credit or liquidity enhancements to such SPV. This
Section 12.7 may not be amended without the written consent of any Designating
Lender affected thereby.
ARTICLE XIII
NOTICES
Except as otherwise permitted by Section 2.13 with respect to
borrowing notices, all notices, requests and other communications to any party
hereunder shall be in writing (including electronic transmission, facsimile
transmission or similar writing) and shall be given to such party: (x) at its
address or facsimile number set forth on the signature pages and (y) at such
other address or facsimile number as it may hereafter specify for the purpose by
notice to the other parties in accordance with the provisions of this Article
XIII. Each such notice, request or other communication shall be effective (i) if
given by facsimile transmission, when transmitted to the facsimile number
specified in this Section and confirmation of receipt is received, (ii) if given
by mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, or (iii) if given by any other
means, when delivered (or, in the case of electronic transmission, received) at
the address specified in this Section; provided that notices to the
Administrative Agent under Article II shall not be effective until received.
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 Borrowers, the
Administrative Agent, the Sole Lead Arranger and the Lenders and each party has
notified the Administrative Agent by facsimile transmission or telephone that it
has taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO
JURISDICTION; WAIVER OF JURY TRIAL
15.1. CHOICE OF LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2. CONSENT TO JURISDICTION. EACH BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK COUNTY, THE COURTS OF THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE
COURTS FROM ANY THEREOF IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO ANY LOAN DOCUMENTS, AND EACH 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 ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST
EITHER BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING
BY EITHER BORROWER AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY
AFFILIATE OF THE ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO OR CONNECTED WITH
ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK COUNTY. EACH
BORROWER AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE EFFECTED
BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY
SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO THE BORROWERS AT THE ADDRESS SET
FORTH ON THE SIGNATURE PAGE HERETO OR AT SUCH OTHER ADDRESS OF WHICH THE
ADMINISTRATIVE AGENT SHALL HAVE BEEN NOTIFIED PURSUANT THERETO; AND EACH
BORROWER AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO ▇▇▇ IN
ANY OTHER JURISDICTION.
15.3. WAIVER OF JURY TRIAL. EACH BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO OR CONNECTED WITH
ANY LOAN DOCUMENT, THE TRANSACTIONS OR THE RELATIONSHIPS ESTABLISHED THEREUNDER.
[Signature Pages Follow]
S-1
IN WITNESS WHEREOF, Borrower, the Lenders, the Administrative
Agent and the Sole Lead Arranger have executed this Agreement as of the date
first above written.
VECTREN CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President & Treasurer
VECTREN UTILITY HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President & Treasurer
▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (812)
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., ▇▇▇▇▇▇▇ LYNCH,
PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED,
as Sole Lead Arranger and Syndication Agent
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
S-2
Commitment;
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$33,000,000 ▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION,
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: VP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-3
Commitment;
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$30,500,000 CREDIT SUISSE FIRST BOSTON, as a Lender and
as Administrative Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-4
Commitment;
----------
$30,500,000 ABN AMRO, BANK, N.V. as a Lender and as
Documentation Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President &
Managing Director
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-5
Commitment;
----------
$22,000,000 BANCA COMMERCIALE ITALIANA, NEW YORK BRANCH,
as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇
Title: VP
By: /s/ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇. ▇▇▇▇▇▇▇
Title: FVP/Deputy Manager
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-6
Commitment;
----------
$27,500,000 BANCA NAZIONALE DEL LAVORO S.P.A., NEW
YORK BRANCH, as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Loan Officer
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: First Vice President
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-7
Commitment;
----------
$22,000,000 BANCO DI NAPOLI S.P.A., as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: First Vice President
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-8
Commitment;
----------
$27,500,000 THE BANK OF NEW YORK, as Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-9
Commitment;
----------
$28,500,000 BANK ONE, INDIANA, NA, as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-10
Commitment;
----------
$27,500,000 THE FUJI BANK LIMITED, as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President and
Group Head
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-11
Commitment;
----------
$27,500,000 THE INDUSTRIAL BANK OF JAPAN, LIMITED,
as Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Joint General Manager
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-12
Commitment;
----------
$27,500,000 KBC BANK, N.V., as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: First Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: First Vice President
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-13
Commitment;
----------
$27,500,000 KEYBANK NATIONAL ASSOCIATION, as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-14
Commitment;
----------
$22,000,000 NATIONAL CITY BANK OF INDIANA, as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-15
Commitment;
----------
$10,000,000 INTEGRA BANK, N.A., as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-16
Commitment;
----------
$27,500,000 NORINCHUKIN BANK, as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-17
Commitment;
----------
$22,000,000 OLD NATIONAL BANK, as Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title:
Attention: ▇▇▇▇▇ ▇▇▇▇ Hope
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-18
Commitment;
----------
$22,000,000 UNION PLANTERS BANK, NATIONAL ASSOCIATION,
as Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
PRICING SCHEDULE
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ Level V Level VI
Pricing Status Status Status Status Status Status
-------------------------------------- ------------ ------------ -------------- ------------- ------------ -------------
Applicable Margin for Eurodollar 0.270% 0.300% 0.450% 0.600% 0.700% 0.800%
Advances
-------------------------------------- ------------ ------------ -------------- ------------- ------------ -------------
Applicable Margin for Floating 0.00% 0.00% 0.00% 0.00% 0.00% 0.00%
Rate Advances
-------------------------------------- ------------ ------------ -------------- ------------- ------------ -------------
Applicable Facility Fee Rate 0.080% 0.100% 0.125% 0.150% 0.175% 0.200%
-------------------------------------- ------------ ------------ -------------- ------------- ------------ -------------
Applicable Utilization Fee Rate 0.100% 0.100% 0.125% 0.125% 0.250% 0.250%
-------------------------------------- ------------ ------------ -------------- ------------- ------------ -------------
For the purposes of this Schedule, the following terms have
the following meanings, subject to the final paragraph of this Schedule:
"Level I Status" exists at any date if, on such date, Parent's
▇▇▇▇▇'▇ Rating is A2 or better or Parent's S&P Rating is A or better.
"Level II Status" exists at any date, if, on such date, (i)
Parent has not qualified for Level I Status and (ii) Parent's ▇▇▇▇▇'▇ Rating is
A3 or better or Parent's S&P Rating is A- or better.
"Level III Status" exists at any date if, on such date, (i)
Parent has not qualified for Level I Status or Level II Status and (ii) Parent's
▇▇▇▇▇'▇ Rating is Baal or better or Parent's S&P Rating is BBB+ or better.
"Level IV Status" exists at any date if, on such date, (i)
Parent has not qualified for Level I Status, Level II Status or Level III Status
and (ii) Parent's ▇▇▇▇▇'▇ Rating is Baa2 or better or Parent's S&P Rating is BBB
or better.
"Level V Status" exists at any date if, on such date (i)
Parent has not qualified for Level I status, Level II status, Level III status
or Level IV status and (ii) Parent's ▇▇▇▇▇'▇ Rating is Baa3 or better or
Parent's S&P Rating is BBB- or better.
"Level VI Status" exists at any date if, on such date, Parent
has not qualified for Level I Status, Level II Status, Level III Status, Level
IV Status or Level V Status.
"▇▇▇▇▇'▇ Rating" means, at any time, the credit rating issued
by ▇▇▇▇▇'▇ and then in effect with respect to Parent's senior unsecured
long-term debt securities without third-party credit enhancement.
"S&P Rating" means, at any time, the credit rating issued by
S&P and then in effect with respect to Parent's senior unsecured long-term debt
securities without third-party credit enhancement.
"Status" means either Level I Status, Level II Status, Level
III Status, Level IV Status, Level V Status or Level VI Status.
The Applicable Margin and Applicable Facility Fee Rate shall
be determined in accordance with the foregoing table based on Parent's Status as
determined from its then current ▇▇▇▇▇'▇ and S&P Ratings. The credit rating in
effect on any date for the purposes of this Schedule is that in effect at the
close of business on such date. If at any time Parent has no ▇▇▇▇▇'▇ Rating or
no S&P Rating, Level VI Status shall exist. If Parent is split-rated and as a
result the ▇▇▇▇▇'▇ Rating or the S&P Rating falls in any Level that is two or
more Levels below the other (i.e. the ▇▇▇▇▇'▇ Rating is in Level I and the S&P
Rating is in Level IV), then Parent shall be deemed to have the Status that is
in the Level one below the higher Level (i.e. as in the example above, Parent
would be in Level II Status).
SCHEDULE 1
LIENS
(See Sections 5.13 and 6.11)
SCHEDULE 2
ENCUMBRANCES AFFECTING SUBSIDIARIES
(See Section 6.14)
EXHIBIT A
[FORM OF OPINION]
The Administrative Agent and the Lenders who are
parties to the Credit Agreement described below.
Ladies and Gentlemen:
We have acted as special counsel for Vectren Corporation, an
Indiana corporation ("Parent"), and Vectren Utility Holdings, Inc., an Indiana
corporation and a Wholly-Owned Subsidiary ("VUHI" and, together with Parent, the
"Borrowers"), in connection with the execution and delivery of the Credit
Agreement dated as of June [ ], 2000 (the "Credit Agreement") among the
Borrowers, the Lenders party thereto from time to time, ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated as Sole Lead Arranger and Syndication Agent, ABN
AMRO as Documentation Agent and Credit Suisse First Boston as Administrative
Agent. This opinion letter is being provided to you pursuant to Section
4.1(a)(v) of the Credit Agreement. All capitalized terms used in this opinion
letter and not otherwise defined shall have the meanings ascribed to them in the
Credit Agreement.
For the purpose of rendering this opinion letter, we have
examined (i) the Credit Agreement and the Notes (hereinafter collectively
referred to as the "Loan Documents"); (ii) the corporate proceedings pursuant to
which the Loan Documents were approved and authorized; and (iii) such records,
certificates and other documents and such questions of law as we have considered
necessary or appropriate for the purpose of rendering the opinions set forth
below.
For purposes of rendering this opinion letter, we have, with
your consent and without investigation, assumed:
(a) the genuineness of the signatures of all persons (other
than the Borrowers) signing the Loan Documents;
(b) the authority of the persons executing the Loan Documents
on behalf of the parties thereto (other than the Borrowers);
(c) the authenticity of all documents submitted to us as
originals;
(d) the accuracy and completeness of all corporate and public
documents and records made available to us;
(e) the conformity to authentic original documents of all
documents submitted to us as certified, conformed or photostatic
copies;
(f) the due authorization, execution and delivery of the
Credit Agreement by the parties thereto (other than the Borrowers); and
(g) that the Credit Agreement is binding upon all the parties
thereto (other than the Borrowers) and that all parties thereto (other
than the Borrowers) will act in accordance with the terms and
provisions thereof.
In addition, we have assumed that:
(i) all decisional authorities, statutes, rules and
regulations comprising the applicable law for which we are assuming
responsibility are published or otherwise generally accessible, in each
case in a manner generally available to lawyers practicing in the State
of Indiana; and
(ii) routine procedural matters, such as service of process or
qualification to do business in the jurisdiction, will be satisfied by
the party seeking to enforce any of the Loan Documents.
Based upon the foregoing, and subject to the qualifications
stated herein, we are of the opinion that:
1. Each Borrower and each Subsidiary is a corporation duly
organized and validly existing under the laws of the State of Indiana. Neither
Borrower nor any Subsidiary is required to be qualified to do business in any
state other than Indiana.
2. The execution and delivery by each Borrower of the Loan
Documents and the performance by each Borrower of its obligations thereunder
have been duly authorized by proper corporate proceedings on the part of each
Borrower and will not
(a) require any consent of either Borrower's shareholders; or
(b) violate (i) either Borrower's or any Subsidiary's articles
of incorporation or by-laws, (ii) any law, rule, regulation or, to our
knowledge, any order, writ, judgment, injunction, decree or award
binding on either Borrower or any Subsidiary, or (iii) the provisions
of any indenture, instrument or agreement to which either Borrower or
any of its Subsidiaries is a party or is subject, or by which it, or
its Property, is bound, or conflict with or constitute a default
thereunder.
3. The Loan Documents have been duly executed and delivered by
each Borrower and constitute legal, valid and binding obligations of each
Borrower enforceable against such 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. Except as set forth in the '34 Act Reports filed prior to
the date hereof, there is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to our knowledge, threatened
against either 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
Borrowers or any of their Subsidiaries is required to be obtained by either
Borrower or any of its Subsidiaries in connection with the execution and
delivery of the Loan Documents, the borrowings under the Agreement, the payment
and performance by each Borrower of the Obligations, or the legality, validity,
binding effect or enforceability of any of the Loan Documents.
Our opinions are subject to the following assumptions,
qualifications and limitations:
A. Whenever any statement in this opinion letter is qualified
by the phrase "to our knowledge," such phrase is intended to mean the actual
knowledge of information by the lawyers in our firm who have given substantive
legal attention to matters on behalf of either Borrower in the six months
preceding the date of this opinion letter, but does not include other
information that might be revealed if there were to be undertaken a canvass of
all lawyers in our firm, a general search of our files or any other type of
independent investigation. Moreover, we have not undertaken any independent
investigation to determine the accuracy or completeness of such knowledge, and
any limited inquiries made by us should not be regarded as such an
investigation. Any certificates or representations obtained by us from officers
of the Borrowers or others with respect to such opinions have been relied upon
by us without independent verification.
B. This opinion letter is limited to the current Federal laws
of the United States and the current internal laws of the State of Indiana and
New York (without giving effect to any conflict of law principles thereof) and
we have not considered, and express no opinion on, the laws of any other
jurisdiction.
C. This opinion letter is dated and speaks as of the date
hereof. We have no obligation to update or supplement this opinion letter to
reflect any facts or circumstances that may hereafter come to our attention.
D. Whenever we have stated we assumed any matter, it is
intended to indicate that we have assumed such matter without making any
factual, legal or other inquiry or investigation, and without expressing any
opinion or stating any conclusion of any kind concerning such matter (but, to
our knowledge, no assumption made herein is inaccurate or unreasonable).
E. The only opinions intended to be provided herein are those
which are expressly stated herein and no opinions by implication are intended or
given.
This opinion letter may be relied upon by the Sole Lead
Arranger, the Administrative Agent, the Lenders and their respective successors,
participants and assignees. Subject to the foregoing, this opinion letter may be
relied upon only in connection with the transactions contemplated by the Credit
Agreement and may not be used or relied upon by the Sole Lead Arranger, the
Administrative Agent, such Lenders or any other person for any other purpose
whatsoever.
Very truly yours,*
EXHIBIT B
[FORM OF COMPLIANCE CERTIFICATE]
To: The Lenders party to the
Credit Agreement described below
This compliance certificate (this "Certificate") is furnished
pursuant to the Credit Agreement dated as of June [ ], 2000 (as amended,
modified, renewed or extended from time to time, the "Credit Agreement") among
Vectren Corporation ("Parent"), Vectren Utility Holdings, Inc. ("VUHI" and,
together with Parent, the "Borrowers"), the Lenders party thereto from time to
time, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated as Sole Lead Arranger
and Syndication Agent, ABN AMRO as Documentation Agent, and Credit Suisse First
Boston as Administrative Agent for the Lenders. All capitalized terms used in
this Certificate and not otherwise defined shall have the meanings ascribed to
them in the Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _______________ of Parent;
2. I have reviewed the terms of the Credit Agreement and I
have made, or have caused to be made under my supervision, a detailed review of
the transactions and conditions of Parent and its Subsidiaries during the
accounting period covered by the attached financial statements; 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 or at the end of the
accounting period covered by the attached financial statements or as of the date
of this Certificate, except as set forth below.
Described below are the exceptions, if any, to paragraph 3
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which Parent has taken, is taking, or
proposes to take with respect to each such condition or event:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
The foregoing certifications, together with the financial
statements delivered with this Certificate in support hereof, are made and
delivered this _____ day of ____________, ____.
[ ]
---------------------------------------------
SCHEDULE I
TO COMPLIANCE CERTIFICATE
Reports and Deliveries Currently Due
EXHIBIT C
[FORM OF ASSIGNMENT AGREEMENT]
This ASSIGNMENT AGREEMENT (this "Agreement") dated as of
[ ] is made between [ ] (the "Assignor") and
[ ] (the "Assignee").
RECITALS
The Assignor is party to the Credit Agreement dated as of June
[ ], 2000 (as amended, modified, renewed or extended from time to time, the
"Credit Agreement") among Vectren Corporation, Vectren Utility Holdings, Inc.,
the Lenders party thereto from time to time, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated as Sole Lead Arranger and Syndication Agent, ABN AMRO as
Documentation Agent and Credit Suisse First Boston as Administrative Agent for
the Lenders. All capitalized terms used in this Agreement and not otherwise
defined shall have the meanings ascribed to them in the Credit Agreement.
The Assignor wishes to assign to Assignee rights and
obligations of the Assignor under the Credit Agreement in respect of the
Commitments and the other rights and obligations of the Assignor thereunder, and
the Assignee wishes to accept assignment of such rights and to assume such
obligations from the Assignor to be assigned to it and assumed by it, in each
case on the terms and subject to the conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the parties hereto agree as follows:
1. Assignment and Acceptance.
(a) Subject to the terms and conditions of this Agreement, (i)
the Assignor hereby sells, transfers and assigns, and (ii) the Assignee hereby
purchases, assumes and undertakes from the Assignor, without recourse and
without representation or warranty (except as provided in this Agreement),
(i) Assignor's Commitments and Loans set forth on Annex 1
hereto; and
(ii) all related rights, benefits, obligations, liabilities
and indemnities of the Assignor with respect to such Commitments and
Loans assigned to the Assignee under and in connection with the Credit
Agreement and the other Loan Documents;
(all of the foregoing being herein referred to as the "Assigned Rights and
Obligations").
(b) With effect on and after the Effective Date (as defined in
Section 5 hereof), the Assignee shall be a party to the Credit Agreement and
succeed to all of the rights and be obligated to perform all of the obligations
of a Lender under the Credit Agreement, including the requirements concerning
confidentiality and the payment of indemnification for claims arising following
the Effective Date, with a pro rata share as of the Effective Date of the
Commitments and Loans equal to the amounts set forth on Annex 1 hereto. The
Assignee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender. It is the intent of the parties hereto that (i) as
of the Effective Date, the pro rata share of the Assignor of the Commitment
shall be reduced by $ [ ], and the pro rata share of the Assignor of the Loans
shall be reduced by $ [ ], in each case as a result of the assignment hereby to
the Assignee, and (ii) the Assignor shall relinquish its rights and be released
from its obligations under the Credit Agreement to the extent such obligations
have been assumed by the Assignee; provided, however, that the Assignor shall
not relinquish its rights under Section [ ] or Section [ ] of the Credit
Agreement or be relieved of its obligations under Section [ ] of the Credit
Agreement in respect of the Assigned Rights and Obligations to the extent such
rights relate to the time prior to the Effective Date.
2. Payments.
As consideration for the sale, assignment and transfer
contemplated in Section 1 hereof, the Assignee shall pay to the Assignor on the
Effective Date in immediately available funds an amount in U.S. Dollars as
agreed to between the parties.
3. Reallocation of Payments.
Any interest, fees and other payments accrued to the Effective
Date with respect to all of the Assigned Rights and Obligations of the Assignee
shall be for the account of the Assignor. Any interest, fees and other payments
accrued on and after the Effective Date with respect to the Assigned Rights and
Obligations of any Assignee shall be for the account of each Assignee. Each of
the Assignor and the Assignee, severally, agrees that it will hold in trust for
the other party any interest, fees and other amounts which it may receive to
which the other party is entitled pursuant to the preceding two sentences and
pay to the other party any such amounts which it may receive promptly upon
receipt.
4. Independent Credit Decision.
The Assignee (a) acknowledges that it has received a copy of
the Credit Agreement and the Schedules and Exhibits thereto, and such other
documents and information as it has deemed appropriate to make its own credit
and legal analysis and decision to enter into this Agreement; and (b) agrees
that it will, independently and without reliance upon the Assignor, the Sole
Lead Arranger, the Administrative 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 and legal decisions in taking or not taking action under the
Credit Agreement.
5. Effective Date: Notices.
(a) As between the Assignor and the Assignee, the effective
date for this Agreement shall be [ ], 200 [ ](the "Effective Date"); provided,
however, that the following conditions precedent have been satisfied on or
before the Effective Date:
(i) this Agreement shall be executed and delivered by the
Assignor and the Assignee;
(ii) notice of the assignment substantially in the form of
Exhibit I shall have been delivered to the Administrative Agent and, if
required for an effective assignment of the Assigned Rights and
Obligations by the Assignor to the Assignee under Section 12.3.1 of the
Credit Agreement, the consent of each Borrower, the Sole Lead Arranger
and the Administrative Agent, as the case may be, shall have been duly
obtained and shall be in full force and effect as of the Effective
Date;
(iii) the Assignee shall pay to the Assignor all amounts due
to the Assignor from the Assignee under this Agreement and payment to
the Administrative Agent of the fee required by Section 12.3.2 of the
Credit Agreement shall have been made; and
(iv) the information in this Agreement shall be recorded in
the register maintained by the Administrative Agent
6. Representations and Warranties.
(a) The Assignor represents and warrants to the Assignee that
(i) it is the legal and beneficial owner of the interest being assigned by it
hereunder to the Assignee and that such interest is free and clear of any Lien
or other adverse claim known to Assignor other than any Lien or other adverse
claim created by the Assignee; (ii) it is duly organized and existing and it has
the full power and authority to take, and has taken, all action necessary to
execute and deliver this Agreement and any other documents required or permitted
to be executed or delivered by it in connection with this Agreement and to
fulfill its obligations hereunder; (iii) no notices to, or consents
authorizations or approvals of, any Person are required (other than any already
given or obtained) for its due execution, delivery and performance of this
Agreement, and apart from any agreements or undertakings or filings required by
the Credit Agreement, no further action by, or notice to, or filing with, any
Person is required of it for such execution, delivery or performance; and (iv)
this Agreement has been duly executed and delivered by it and constitutes the
legal, valid and binding obligation of the Assignor, enforceable against the
Assignor in accordance with the terms hereof, subject, as to enforcement, to
bankruptcy, insolvency, moratorium, reorganization and other laws of general
application relating to or affecting creditors' rights and to general equitable
principles.
(b) The Assignor makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any other instrument or document furnished pursuant
thereto. The Assignor makes no representation or warranty in connection with,
and assumes no responsibility with respect to, the solvency, financial condition
or statements of the Borrowers, or the performance or observance by the
Borrowers or any other obligor of any of their obligations under the Credit
Agreement or any other instrument or document furnished in connection therewith.
(c) The Assignee represents and warrants to Assignor that (i)
it is duly organized and existing and it has full power and authority to take,
and has taken, all action necessary to execute and deliver this Agreement and
any other documents required or permitted to be executed or delivered by it in
connection with this Agreement, and to fulfill its obligations hereunder; (ii)
no notices to, or consents, authorizations or approvals of, any Person are
required (other than any already given or obtained) for its due execution and
performance of this Agreement; and apart from any agreements or undertakings or
filings required by the Credit Agreement, no further action by, or notice to, or
filing with, any Person is required of it for such execution, delivery or
performance; (iii) this Agreement has been duly executed and delivered by it and
constitutes the legal, valid and binding obligation of the Assignee, enforceable
against the Assignee in accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization and other
laws of general application relating to or affecting creditors' rights and to
general equitable principles; (iv) it is an Eligible Person; and (v) none of the
consideration used to make the purchase of the Assigned Rights and Obligations
are "plan assets" as defined under ERISA; the rights and interests of the
Assignee in and under the Loan Documents will not be "plan assets" under ERISA.
7. Further Assurances.
The Assignor and the Assignee each hereby agree to execute and
deliver such other instruments, and take such other action, as either party may
reasonably request in connection with the transactions contemplated by this
Agreement, including the delivery of any notices or other documents or
instruments to the Borrowers, the Sole Lead Arranger, or the Administrative
Agent which may be required in connection with the assignment and assumption
contemplated hereby.
8. Miscellaneous.
(a) Any amendment or waiver of any provision of this Agreement
shall be in writing and signed by the parties hereto to be affected thereby. No
failure or delay by either party hereto in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, and any waiver of any
breach of the provisions of this Agreement be without prejudice to any rights
with respect to any other or further breach thereof.
(b) All payments made hereunder shall be made without any
set-off or counterclaim.
(c) The Assignor and the Assignee shall each pay its own costs
and expenses incurred in connection with the negotiation, preparation, execution
and performance of this Agreement.
(d) This Agreement may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
(e) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS. The Assignor and the
Assignee each irrevocably submit to the non-exclusive jurisdiction of any United
States Federal or New York State court sitting in New York County, the courts of
the United States of America for the Southern District of New York, and
appellate courts from any thereof in any action or proceeding arising out of or
relating to this Agreement or to any other Loan Documents and each party 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.
Each party agrees that service of process in any such proceeding may be effected
by mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to the other party at the address set
forth on Schedule I hereto or at such other address of which the other party
shall have been notified pursuant thereto; and each party agrees that nothing
herein shall affect the right to effect service of process in any other manner
permitted by law or shall limit the right to ▇▇▇ in any other jurisdiction over
any suit, action or proceeding arising out of or relating to this Agreement and
irrevocably agree that all claims in respect of such action or proceeding may be
heard and determined in such New York State or Federal court. Each party to this
Agreement hereby irrevocably waives, to the fullest extent it may effectively do
so, the defense of an inconvenient forum to the maintenance of such action or
proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH 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 THIS AGREEMENT, THE CREDIT AGREEMENT, ANY OTHER
LOAN DOCUMENT, THE TRANSACTION OR THE RELATIONSHIPS ESTABLISHED HEREUNDER OR
THEREUNDER.
[Signature Page Follows]
S-1
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
this Agreement to be executed and delivered by their duly authorized officers as
of the date first above written.
[ASSIGNOR], as Assignor
By:
-----------------------------------
Name:
Title:
[ASSIGNEE], as Assignee
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇ ▇
▇▇▇▇ ▇-▇ ▇▇▇▇ ▇-▇ ▇▇▇▇ B Term C
Revolving Revolving Facility Facility Facility Facility
Commitment Loans Loans Loans Loans Loans
---------- ----- ----- ----- ----- -----
Total
Assigned
Commitment/
Loans
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement: Credit Agreement dated as of June
29, 2000, among Vectren Corporation, Vectren Utility Holdings, Inc., the Lenders
party thereto from time to time, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated as Sole Lead Arranger and Syndication Agent, ABN AMRO as
Documentation Agent, and Credit Suisse First Boston as Administrative Agent for
the Lenders.
2. Date of Assignment Agreement: [ ], 200[ ].
3. Amounts (As of Date of Item 2 above):
a. Total of Commitments (Loans)** $
under Credit Agreement -------
b. Assignee's Percentage of each
Facility purchased under the
Assignment Agreement*** %
--------
c. Amount of Assigned Share in each
Facility purchased under the $
Assignment Agreement -------
4. Assignee's Aggregate (Loan Amount)** Commitment
Amount Purchased Hereunder: $
-------
5. Proposed Effective Date: [ ], 200[ ]
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
------------------------------- ----------------------------
Name: Name:
Title: Title:
** If a Commitment has been terminated, insert outstanding Loans in place
of Commitment.
*** Percentage taken to 10 decimal places.
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMATION SHEET
VECTREN CORPORATION
Lending Institution:
-------------------------------------------------------
Name for Signature Pages:
-------------------------------------------------------
Will sign Credit Agreement:
Will come in via Assignment: Number of Days
Post Closing: ______
Name for Publicity:
-------------------------------------------------------
Address:
-------------------------------------------------------
-------------------------------------------------------
Main Telephone: Telex No./Answerback:
-------------------- --------------
CONTACT - Credit Name:
---------------------------------------------
Address:
---------------------------------------------
---------------------------------------------
Telephone:
---------------------------------------------
Fax:
---------------------------------------------
CONTACT - Operation Name:
---------------------------------------------
Address:
---------------------------------------------
---------------------------------------------
Telephone:
---------------------------------------------
Fax:
---------------------------------------------
PAYMENT INSTRUCTIONS
Bank Name:
-------------------------------------------------------
ABA/Routing No.
-------------------------------------------------------
Account Name
-------------------------------------------------------
Account No.
-------------------------------------------------------
For further credit:
-------------------------------------------------------
Account No.
-------------------------------------------------------
Attention:
-------------------------------------------------------
Reference:
-------------------------------------------------------
CREDIT SUISSE FIRST BOSTON ADMINISTRATIVE DETAILS
CREDIT SUISSE FIRST BOSTON Account Administrator Secondary Contact
--------------------- ------------------
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Main Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Instructions:; The Agent's wire instructions will be disclosed at the time
of closing.
EXHIBIT I
to Assignment Agreement
NOTICE OF ASSIGNMENT
To: Vectren Corporation
Vectren Utility Holdings, Inc.
Credit Suisse First Boston
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Credit Agreement (as amended, modified,
reviewed or extended from time to time, the "Credit Agreement") described in
Item 1 of Schedule 1 attached hereto ("Schedule 1"). All capitalized terms used
herein and not otherwise defined shall have the meanings ascribed to them in the
Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and
delivered to the Borrowers, the Sole Lead Arranger, and the Administrative Agent
pursuant to Section 12.3.2 of the Credit Agreement.
3. The Assignor and the Assignee have entered into an
Assignment Agreement, dated as of _____________, ____ (the "Assignment"),
pursuant to which, among other things, the Assignor has sold, assigned,
delegated and transferred to the Assignee, and the Assignee has purchased,
accepted and assumed from the Assignor, the percentage interest specified in
Item 3 of Schedule 1 of all outstandings, rights and obligations under the
Credit Agreement relating to the facilities listed in Item 3 of Schedule 1. The
Effective Date of the Assignment shall be the later of the date specified in
Item 5 of Schedule 1 or two Business Days (or such shorter period as agreed to
by the Administrative Agent) after this Notice of Assignment and any consents
and fees required by Sections 12.3.1 and 12.3.2 of the Credit Agreement have
been delivered to the Administrative Agent; provided that the Effective Date
shall not occur if any condition precedent agreed to by the Assignor and the
Assignee has not been satisfied.
4. The Assignor and the Assignee hereby give to the Borrowers,
the Sole Lead Arranger, and the Administrative Agent notice of the assignment
and delegation referred to herein. The Assignor will confer with the
Administrative Agent before the date specified in Item 5 of Schedule 1 to
determine if the Assignment Agreement will become effective on such date
pursuant to Section 3 hereof, and will confer with the Administrative Agent to
determine the Effective Date pursuant to Section 3 hereof if it occurs
thereafter. The Assignor shall notify the Sole Lead Arranger and the
Administrative Agent if the Assignment Agreement does not become effective on
any proposed Effective Date as a result of the failure to satisfy the conditions
precedent agreed to by the Assignor and the Assignee. At the request of the Sole
Lead Arranger or the Administrative Agent, the Assignor will give the Sole Lead
Arranger and the Administrative Agent written confirmation of the satisfaction
of the conditions precedent.
5. The Assignor or the Assignee shall pay to the
Administrative Agent on or before the Effective Date the processing fee of
$3,500 required by Section 12.3.2 of the Credit Agreement.
6. If Notes are outstanding on the Effective Date, the
Assignor and the Assignee request and direct that the Administrative Agent
prepare and cause the Borrowers to execute and deliver new Notes or, as
appropriate, replacement notes to the Assignor and the Assignee. The Assignor
and, if applicable, the Assignee each agree to deliver to the Administrative
Agent the original Note received by it from the Borrowers upon its receipt of a
new Note in the appropriate amount.
7. The Assignee advises the Administrative Agent that notice
and payment instructions are set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of
the funds, monies, assets or other consideration being used to make the purchase
pursuant to the Assignment 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.
9. The Assignee authorizes the Administrative Agent to act as
its agent under the Loan Documents in accordance with the terms thereof. The
Assignee acknowledges that the Administrative Agent has no duty to supply
information with respect to the Borrowers or the Loan Documents to the Assignee
until the Assignee becomes a party to the Credit Agreement.*
*May be eliminated if Assignee is a party to the Credit Agreement prior to the
Effective Date.
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
------------------------------ ------------------------------
Name: Name:
Title: Title:
ACKNOWLEDGED **[AND ACKNOWLEDGED **[AND
CONSENTED TO]** CONSENTED TO]**
BY: CREDIT SUISSE FIRST BOSTON, BY: VECTREN CORPORATION
as Administrative Agent
By: By:
------------------------------ ------------------------------
Name: Name:
Title: Title:
VECTREN UTILITY HOLDINGS, INC.
By:
------------------------------
Name:
Title:
ACKNOWLEDGED **[AND
CONSENTED TO]**
BY: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED,
as Sole Lead Arranger
By:
------------------------------
Name:
Title:
**[Attach photocopy of Schedule 1 to Assignment]**
EXHIBIT D
[FORM OF LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION]
To: Credit Suisse First Boston as Administrative Agent (the "Administrative
Agent") under the Credit Agreement described below.
Re: Credit Agreement dated as of June 29, 2000 (as amended, modified,
renewed or extended from time to time, the "Credit Agreement"), among
Vectren Corporation ("Parent"), Vectren Utility Holdings, Inc. ("VUHI"
and, together with Parent, the "Borrowers"), the Lenders party hereto
from time to time, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
as Sole Lead Arranger and Syndication Agent, ABN AMRO as Documentation
Agent, and Credit Suisse First Boston as Administrative Agent.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Credit Agreement.
The Administrative Agent is specifically authorized and
directed to act upon the following standing money transfer instructions with
respect to the proceeds of Advances or other extensions of credit from time to
time until receipt by the Administrative Agent of a specific written revocation
of such instructions by the Borrowers; provided, however, that the
Administrative Agent may otherwise transfer funds as hereafter directed in
writing by either Borrower in accordance with Section 13.1 of the Credit
Agreement or based on any telephonic notice made in accordance with Section 2.14
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
[FORM OF NOTE]
$ June 29, 2000
-----------------
VECTREN CORPORATION, an Indiana corporation and VECTREN
UTILITY HOLDINGS, INC., an Indiana corporation (together, the "Borrowers")
promise, on a joint and several basis, to pay to the order of _______________
(the "Lender") the lesser of the principal sum of ___________________________
Dollars or the aggregate unpaid principal amount of all Loans made by the Lender
to either Borrower pursuant to Article II of the Credit Agreement (as
hereinafter defined), in immediately available funds at the main office of
Credit Suisse First Boston, as Administrative Agent, together with interest on
the unpaid principal amount hereof at the rates and on the dates set forth in
the Agreement, all without relief from any valuation or appraisement law. The
Borrowers shall pay the principal of and accrued and unpaid interest on each
Loan in full on or before the Facility Termination Date in effect at the time
such Loan was made.
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 Loan and the date and amount of each
principal payment hereunder.
This Note is one of the Notes issued pursuant to, and is
entitled to the benefits of, the Credit Agreement dated as of June 29, 2000 (as
amended, modified, renewed or extended from time to time, the "Credit
Agreement"), among the Borrowers, the lenders party thereto from time to time,
including the Lender, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated as Sole
Lead Arranger and Syndication Agent, ABN AMRO as Documentation Agent and Credit
Suisse First Boston as Administrative Agent, to which Credit Agreement reference
is hereby made for a statement of the terms and conditions governing this Note,
including the terms and conditions under which this Note may be prepaid or its
maturity date accelerated.
Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Credit Agreement.
VECTREN CORPORATION
By:
------------------------------
Name:
Title:
VECTREN UTILITY HOLDINGS, INC.
By:
------------------------------
Name:
Title:
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO NOTE OF
VECTREN CORPORATION AND VECTREN UTILITY HOLDINGS, INC.,
PAYABLE TO ______________________,
DATED __________________, ____
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
---------- ------------ -------------- ------------ -------------
EXHIBIT F
[FORM OF TAX REPRESENTATION CERTIFICATE]
Reference is hereby made to the Credit Agreement, dated as of
June 29, 2000, by and among Vectren Corporation ("Parent"), Vectren Utility
Holdings, Inc. ("VUHI" and, together with Parent, the "Borrowers" the Lenders
party thereto from time to time, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, as Sole Lead Arranger and Syndication Agent (the
"Lead Arranger"), Credit Suisse First Boston, as Administrative Agent, and ABN
AMRO, as Documentation Agent (the "Credit Agreement"). Terms used herein and not
otherwise defined shall have the meanings ascribed to them in the Credit
Agreement. [Name of non-U.S. Lender] (the "Lender") is providing this
certificate pursuant to Section 3.5 of the Credit Agreement. Under penalties of
perjury, the Lender hereby represents and warrants that:
1. The Lender is the sole record and beneficial owner of the
[Loan(s)][Note(s)] registered in its name in respect of which it is
providing this certificate, and it shall remain the sole beneficial
owner of such [Loan(s)][Note(s)] registered in its name at all times
during which it is the record holder of such [Loan(s)][Note(s)]
registered in its name.
2. The Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the
"Code").
3. The Lender is not a 10% shareholder of Parent within the
meaning of Section 881(c)(3)(B) of the Code.
4. The Lender is not a controlled foreign corporation related
to either Borrower within the meaning of Section 864(d)(4) of the Code.
5. The income from the Note(s) held by the Lender is not
effectively connected with the conduct of a trade or business within
the United States.
6. The Lender has furnished the Borrowers with a certificate
of foreign status on Internal Revenue Service Form W-8 (or the
applicable successor form or certificate).
7. The Lender will promptly notify the Borrowers and the Sole
Lead Arranger if any of the representations and warranties made herein
are no longer true and correct.
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate.
[NAME OF NON-U.S. LENDER]
By:
------------------------------
Name:
Title:
Date:
-----------------