EXHIBIT 10.1
3-YEAR REVOLVING CREDIT AGREEMENT
among
NISOURCE FINANCE CORP.,
as Borrower,
NISOURCE INC.,
as Guarantor,
THE LEAD ARRANGERS
and
LENDERS
Party Hereto,
as Lenders,
CREDIT SUISSE FIRST BOSTON
as Syndication Agent,
BANK ONE, NA,
THE BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH
and
CITICORP USA, INC.,
as Co-Documentation Agents
BARCLAYS BANK PLC,
as Administrative Agent and LC Bank,
--------------------
BARCLAYS CAPITAL
and
CREDIT SUISSE FIRST BOSTON
Lead Arrangers
BARCLAYS CAPITAL
Sole Book Runner
--------------------
Dated as of March 18, 2004
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS................................................................................ 1
SECTION 1.01. DEFINED TERMS..................................................................... 1
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS............................................ 16
SECTION 1.03. TERMS GENERALLY................................................................... 16
SECTION 1.04. ACCOUNTING TERMS; GAAP............................................................ 17
ARTICLE II THE CREDITS............................................................................... 17
SECTION 2.01. COMMITMENTS....................................................................... 17
SECTION 2.02. REVOLVING LOANS AND REVOLVING BORROWINGS; REQUESTS FOR BORROWINGS................. 18
SECTION 2.03. SWINGLINE LOANS................................................................... 19
SECTION 2.04. LETTERS OF CREDIT................................................................. 20
SECTION 2.05. FUNDING OF BORROWINGS............................................................. 24
SECTION 2.06. INTEREST ELECTIONS................................................................ 24
SECTION 2.07. MANDATORY TERMINATION OR REDUCTION OF COMMITMENTS................................. 25
SECTION 2.08. MANDATORY PREPAYMENTS............................................................. 26
SECTION 2.09. OPTIONAL REDUCTION OF COMMITMENTS................................................. 26
SECTION 2.10. REPAYMENT OF LOANS; EVIDENCE OF DEBT.............................................. 26
SECTION 2.11. OPTIONAL PREPAYMENT OF LOANS...................................................... 27
SECTION 2.12. FEES.............................................................................. 28
SECTION 2.13. INTEREST.......................................................................... 29
SECTION 2.14. ALTERNATE RATE OF INTEREST........................................................ 30
SECTION 2.15. INCREASED COSTS................................................................... 30
SECTION 2.16. BREAK FUNDING PAYMENTS............................................................ 31
SECTION 2.17. TAXES............................................................................. 32
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SET-OFFS....................... 33
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.................................... 34
ARTICLE III CONDITIONS............................................................................... 35
SECTION 3.01. CONDITIONS PRECEDENT TO THE INITIAL EXTENSION OF CREDIT........................... 35
SECTION 3.02. CONDITIONS PRECEDENT TO EACH EXTENSION OF CREDIT.................................. 37
ARTICLE IV REPRESENTATIONS AND WARRANTIES............................................................ 37
ARTICLE V AFFIRMATIVE COVENANTS...................................................................... 40
ARTICLE VI NEGATIVE COVENANTS........................................................................ 43
ARTICLE VII FINANCIAL COVENANTS...................................................................... 47
SECTION 7.01. INTEREST COVERAGE RATIO........................................................... 47
SECTION 7.02. DEBT TO CAPITALIZATION RATIO...................................................... 47
ARTICLE VIII EVENTS OF DEFAULT....................................................................... 47
ARTICLE IX THE ADMINISTRATIVE AGENT.................................................................. 51
ARTICLE X GUARANTY................................................................................... 53
SECTION 10.01. THE GUARANTY..................................................................... 53
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SECTION 10.02. WAIVERS.......................................................................... 54
ARTICLE XI MISCELLANEOUS............................................................................. 56
SECTION 11.01. NOTICES.......................................................................... 56
SECTION 11.02. WAIVERS; AMENDMENTS.............................................................. 57
SECTION 11.03. EXPENSES; INDEMNITY; DAMAGE WAIVER............................................... 57
SECTION 11.04. SUCCESSORS AND ASSIGNS........................................................... 59
SECTION 11.05. SURVIVAL......................................................................... 62
SECTION 11.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS......................................... 62
SECTION 11.07. SEVERABILITY..................................................................... 62
SECTION 11.08. RIGHT OF SETOFF.................................................................. 62
SECTION 11.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS....................... 63
SECTION 11.10. WAIVER OF JURY TRIAL. ........................................................... 64
SECTION 11.11. HEADINGS......................................................................... 64
SECTION 11.12. CONFIDENTIALITY.................................................................. 64
SECTION 11.13. USA PATRIOT ACT.................................................................. 64
ANNEXES, EXHIBITS AND SCHEDULES
ANNEX A Pricing Grid
EXHIBIT A Form of Assignment and Acceptance
EXHIBIT B Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
SCHEDULE 2.01 Lenders and Commitments
SCHEDULE 3.01 Financing Facilities to be Terminated
SCHEDULE 6.01(e) Existing Agreements
3-YEAR REVOLVING CREDIT AGREEMENT, dated as of March 18, 2004 (this
"AGREEMENT"), among NISOURCE FINANCE CORP., an Indiana corporation, as Borrower
(the "BORROWER"), NISOURCE INC., a Delaware corporation ("NISOURCE"), as
Guarantor (the "GUARANTOR"), the Lead Arrangers and other Lenders from time to
time party hereto, the Co-Documentation Agents party hereto, CREDIT SUISSE FIRST
BOSTON, as Syndication Agent and BARCLAYS BANK PLC, as issuer of any Letters of
Credit provided for hereunder (in such capacity, the "LC BANK") and as
administrative agent for the Lenders hereunder (in such capacity, the
"ADMINISTRATIVE AGENT").
WITNESSETH:
WHEREAS, the parties are willing to enter into this 3-Year Revolving
Credit Agreement on the terms and subject to the conditions herein set forth.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"AGGREGATE COMMITMENTS" means the aggregate amount of the
Commitments of all Lenders, as in effect from time to time. As of the date
hereof, the Aggregate Commitments equal $750,000,000.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any
change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective from and including the
effective date of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.
"APPLICABLE PERCENTAGE" means, with respect to any Lender, the
percentage of the Aggregate Commitments represented by such Lender's
Commitment. If the Commitments have terminated or expired, the Applicable
Percentages shall be
determined based upon the Commitments most recently in effect, giving
effect to any assignments.
"APPLICABLE RATE" means, for any day, with respect to any ABR Loan
or Eurodollar Revolving Loan, or with respect to the Facility Fees, the LC
Risk Participation Fee and the Utilization Fee payable hereunder, as the
case may be, the applicable rate per annum determined pursuant to the
Pricing Grid.
"ARRANGERS" shall mean each of Barclays and Credit Suisse First
Boston.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party
whose consent is required by Section 11.04), and accepted by the
Administrative Agent, in the form of Exhibit A or any other form approved
by the Administrative Agent.
"AVAILABILITY PERIOD" means the period from and including the
Effective Date to but excluding the Termination Date.
"BARCLAYS" means Barclays Bank PLC, an English banking corporation.
"BENEFICIARY" has the meaning set forth in Section 10.01.
"BOARD" means the Board of Governors of the Federal Reserve System
of the United States of America.
"BORROWER" means NiSource Finance Corp., Inc. an Indiana
corporation.
"BORROWING" means Loans of the same Type and Class, made, converted
or continued on the same date and, in the case of Eurodollar Loans, as to
which a single Interest Period is in effect.
"BORROWING REQUEST" means a request by the Borrower for a Revolving
Borrowing in accordance with Section 2.02.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term "BUSINESS DAY" shall also exclude any day on
which banks are not open for dealings in dollar deposits in the London
interbank market.
"CAPITAL LEASE" means, as to any Person, any lease of real or
personal property in respect of which the obligations of the lessee are
required, in accordance with GAAP, to be capitalized on the balance sheet
of such Person.
"CAPITAL STOCK" means any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person other
than a corporation (including, but not limited to, all common stock and
preferred stock and partnership, membership and joint venture
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interests in a Person), and any and all warrants, rights or options to
purchase any of the foregoing.
"CASH ACCOUNT" has the meaning set forth in Section 8.01.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act, 42, U.S.C. Section 9601 et seq., as
amended.
"CHANGE OF CONTROL" means (a) any "person" or "group" within the
meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of
1934, as amended, shall become the "beneficial owner" (as defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended) of more than
50% of the then outstanding voting Capital Stock of the Guarantor, (b)
Continuing Directors shall cease to constitute at least a majority of the
directors constituting the Board of Directors of the Guarantor, (c) a
consolidation or merger of the Guarantor shall occur after which the
holders of the outstanding voting Capital Stock of the Guarantor
immediately prior thereto hold less than 50% of the outstanding voting
Capital Stock of the surviving entity; (d) more than 50% of the
outstanding voting Capital Stock of the Guarantor shall be transferred to
an entity of which the Guarantor owns less than 50% of the outstanding
voting Capital Stock; (e) there shall occur a sale of all or substantially
all of the assets of the Guarantor; or (f) the Borrower, NIPSCO or
Columbia shall cease to be a Wholly-Owned Subsidiary of the Guarantor
(except to the extent otherwise permitted under Section 6.01(b)(iii)).
"CHANGE IN LAW" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law,
rule or regulation or in the interpretation or application thereof by any
Governmental Authority after the date of this Agreement or (c) compliance
by any Lender (or, for purposes of Section 2.15(b), by any lending office
of such Lender or by such Lender's holding company, if any) with any
request, guideline or directive (whether or not having the force of law)
of any Governmental Authority made or issued after the date of this
Agreement.
"CLASS", when used in reference to any Loan or Borrowing, refers to
whether such Loan is, or the Loans comprising such Borrowing are,
Revolving Loans or Swingline Loans.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
"COLUMBIA" means Columbia Energy Group, a Delaware corporation.
"COMMITMENT" means, with respect to each Lender, the commitment of
such Lender to make Revolving Loans hereunder and to participate in
Letters of Credit issued hereunder as set forth herein, as such commitment
may be (a) reduced from time to time or terminated pursuant to Section
2.07 or Section 2.09 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 11.04.
The initial amount of each Lender's Commitment is (x) the amount set forth
on Schedule 2.01 opposite such Lender's name; or (y) the amount set forth
in the Assignment and
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Acceptance pursuant to which such Lender shall have assumed its
Commitment, as applicable.
"CONSOLIDATED CAPITALIZATION" means the sum of (a) Consolidated
Debt, (b) consolidated common equity of the Guarantor and its Consolidated
Subsidiaries determined in accordance with GAAP, and (c) the aggregate
liquidation preference of preferred stocks (other than preferred stocks
subject to mandatory redemption or repurchase) of the Guarantor and its
Consolidated Subsidiaries upon involuntary liquidation.
"CONSOLIDATED DEBT" means, at any time, the Indebtedness of the
Guarantor and its Consolidated Subsidiaries that would be classified as
debt on a balance sheet of the Guarantor determined on a consolidated
basis in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the interest
expense of the Guarantor and its Consolidated Subsidiaries, determined on
a consolidated basis in accordance with GAAP.
"CONSOLIDATED NET INCOME" means, for any period, the net income of
the Guarantor and its Consolidated Subsidiaries, determined on a
consolidated basis in accordance with GAAP, adjusted to exclude: (a) any
extraordinary gain or loss, (b) any gain or loss on dispositions of
capital assets and (c) the non-cash effects of any impairment or
write-down of assets.
"CONSOLIDATED NET TANGIBLE ASSETS" means, at any time, the total
amount of assets appearing on a consolidated balance sheet of the
Guarantor and its Subsidiaries (other than Utility Subsidiaries),
determined in accordance with GAAP and prepared as of the end of the
fiscal quarter then most recently ended, less, without duplication, the
following (other than those of Utility Subsidiaries):
(a) all current liabilities (excluding any thereof that are by
their terms extendable or renewable at the sole option of the obligor
thereon, without requiring the consent of the obligee, to a date more than
12 months after the date of determination);
(b) all reserves for depreciation and other asset valuation
reserves (but excluding any reserves for deferred Federal income taxes,
arising from accelerated amortization or otherwise);
(c) all intangible assets, such as goodwill, trademarks, trade
names, patents and unamortized debt discount and expense, carried as an
asset on such balance sheet; and
(d) all appropriate adjustments on account of minority interests
of other Persons holding common stock of any Subsidiary of the Guarantor.
"CONSOLIDATED SUBSIDIARY" means, on any date, each Subsidiary of the
Guarantor the accounts of which, in accordance with GAAP, would be
consolidated with those of
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the Guarantor in its consolidated financial statements if such statements
were prepared as of such date.
"CONTINGENT GUARANTY" means a direct or contingent liability in
respect of a Project Financing (whether incurred by assumption, guaranty,
endorsement or otherwise) that either (a) is limited to guarantying
performance of the completion of the Project that is financed by such
Project Financing or (b) is contingent upon, or the obligation to pay or
perform under which is contingent upon, the occurrence of any event other
than failure of the primary obligor to pay upon final maturity (whether by
acceleration or otherwise).
"CONTINUING DIRECTORS" means (a) all members of the board of
directors of the Guarantor who have held office continually since the
Effective Date, and (b) all members of the board of directors of the
Guarantor who were elected as directors after the Effective Date and whose
nomination for election was approved by a vote of at least 50% of the
Continuing Directors.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any of
its property is bound.
"CONTROL" means 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 ability to exercise voting power, by contract
or otherwise. "CONTROLLING" and "CONTROLLED" have meanings correlative
thereto.
"CREDIT DOCUMENTS" means (a) this Agreement, any promissory notes
executed pursuant to Section 2.10, and any Assignment and Acceptances, (b)
any certificates, opinions and other documents required to be delivered
pursuant to Section 3.01, and (c) any other documents delivered by a
Credit Party pursuant to or in connection with any one or more of the
foregoing.
"CREDIT PARTY" means each of the Borrower and the Guarantor.
"DEBT FOR BORROWED MONEY" means, as to any Person, without
duplication, (a) all obligations of such Person for borrowed money, (b)
all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, (c) all Capital Lease obligations of such Person, and
(d) all obligations of such Person under synthetic leases, tax retention
operating leases, off-balance sheet loans or other off-balance sheet
financing products that, for tax purposes, are considered indebtedness of
borrowed money of the lessee but are classified as operating leases under
GAAP.
"DEBT TO CAPITALIZATION RATIO" means, at any time, the ratio of
Consolidated Debt to Consolidated Capitalization.
"DEFAULT" means any event or condition that constitutes an Event of
Default or that, upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
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"DOLLARS" or "$" refers to lawful money of the United States of
America.
"EFFECTIVE DATE" means the date on which this Agreement has been
executed and delivered by each of the Borrower, the Guarantor, the
Syndication Agent, the Co-Documentation Agents, the initial Lenders and
the Swingline Lender, the LC Bank and the Administrative Agent.
"ENVIRONMENTAL LAWS" means any and all foreign, federal, state,
local or municipal laws (including, without limitation, common laws),
rules, orders, regulations, statutes, ordinances, codes, decrees,
judgments, awards, writs, injunctions, requirements of any Governmental
Authority or other requirements of law regulating, relating to or imposing
liability or standards of conduct concerning, pollution, waste, industrial
hygiene, occupational safety or health, the presence, transport,
manufacture, generation, use, handling, treatment, distribution, storage,
disposal or release of Hazardous Substances, or protection of human
health, plant life or animal life, natural resources or the environment,
as now or at any time hereafter in effect.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Guarantor or any of
its Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials,
(c) exposure to any Hazardous Materials, (d) the release or threatened
release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA AFFILIATE" means any Person who, for purposes of Title IV of
ERISA, is a member of the Guarantor's controlled group, or under common
control with the Guarantor, within the meaning of Section 414 of the Code
and the regulations promulgated and rulings issued thereunder.
"ERISA EVENT" means (a) a reportable event, within the meaning of
Section 4043 of ERISA, unless the 30-day notice requirement with respect
thereto has been waived by the PBGC, (b) the provision by the
administrator of any Plan of a notice of intent to terminate such Plan,
pursuant to Section 4041(a)(2) and 4041(c) of ERISA (including any such
notice with respect to a plan amendment referred to in Section 4041(e) of
ERISA), (c) the withdrawal by the Guarantor or an ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA, (d) the failure by
the Guarantor or any ERISA Affiliate to make a payment to a Plan required
under Section 302(f)(1) of ERISA, which Section imposes a lien for failure
to make required payments, (e) the adoption of an amendment to a Plan
requiring the provision of security to such Plan, pursuant to Section 307
of
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ERISA, or (f) the institution by the PBGC of proceedings to terminate a
Plan, pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition which may reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, a Plan.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in
Regulation D of the Board, as in effect from time to time.
"EURODOLLAR", when used in reference to any Loan or Borrowing,
refers to whether such Loan is, or the Loans comprising such Borrowing
are, bearing interest at a rate determined by reference to the LIBO Rate.
"EURODOLLAR RATE RESERVE PERCENTAGE" of any Lender for the Interest
Period for any Eurodollar Loan means the reserve percentage applicable
during such Interest Period (or if more than one such percentage shall be
so applicable, the daily average of such percentages for those days in
such Interest Period during which any such percentage shall be so
applicable) under regulations issued from time to time by the Board (or
any successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal reserve
requirement) for such Lender with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term equal to
such Interest Period.
"EVENT OF DEFAULT" has the meaning assigned to such term in Article
VIII.
"EXCLUDED TAXES" means, with respect to the Administrative Agent,
any Lender or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income or net earnings
by the United States of America, or by the jurisdiction under the laws of
which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable lending
office is located and (b) in case of a Foreign Lender (other than an
assignee pursuant to a request by the Borrower under Section 2.19(d)), any
withholding tax that (i) is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party to this Agreement,
except to the extent that such Foreign Lender's assignor (if any) was
entitled, at the time of assignment, to receive additional amounts from
the Borrower with respect to such withholding tax pursuant to Section
2.17(a) or (ii) is attributable to such Foreign Lender's failure to comply
with Section 2.17 (e) when legally able to do so.
"EXPOSURE" means, with respect to any Lender at any time, such
Lender's Outstanding Loans plus such Lender's Applicable Percentage of the
aggregate LC Outstandings at such time plus such Lender's Applicable
Percentage of the aggregate Unreimbursed LC Disbursements at such time.
"EXTENSION OF CREDIT" means (a) the making by any Lender of a
Revolving Loan, (b) the making by the Swingline Lender of any Swingline
Loan, (c) the issuance of a Letter of Credit by the LC Bank or (d) the
amendment of any Letter of Credit having the
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effect of extending the stated termination date thereof, increasing the LC
Outstandings, or otherwise altering any of the material terms or
conditions thereof.
"FACILITY FEE" has the meaning set forth in Section 2.12.
"FEDERAL BANKRUPTCY CODE" means Title 11 of the United States Code
(11 U.S.C. Section 101 et seq.) as now or hereafter in effect, or any
successor statute.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"FOREIGN LENDER" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State
thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
"GAAP" means generally accepted accounting principles in the United
States of America consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(e).
"GOVERNMENTAL AUTHORITY" means the government of the United States
of America, any other nation, or any political subdivision of the United
States of America or any other nation, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to
government and includes, in any event, an "Independent System Operator" or
any entity performing a similar function.
"GRANTING LENDER" has the meaning set forth in Section 11.04.
"GUARANTOR" means NiSource.
"GUARANTY" means the guaranty of the Guarantor pursuant to Article X
of this Agreement.
"HAZARDOUS MATERIALS" means any asbestos; flammables; volatile
hydrocarbons; industrial solvents; explosive or radioactive materials;
hazardous wastes; toxic substances; liquefied natural gas; natural gas
liquids; synthetic gas; oil, petroleum, or related materials and any
constituents, derivatives, or byproducts thereof or additives thereto; or
any other material, substance, waste, element or compound (including any
product) regulated pursuant to any Environmental Law, including, without
limitation, substances defined as "hazardous substances," "hazardous
materials," "contaminants,"
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"pollutants," "hazardous wastes," "toxic substances," "solid waste," or
"extremely hazardous substances" in (i) CERCLA, (ii) the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801 et seq., (iii) the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.,
(iv) the Federal Water Pollution Control Act, as amended, 33 U.S.C.
Section 1251 et seq., (v) the Clean Air Act, 42 U.S.C. Section 7401 et
seq., (vi) the Toxic Substances Control Act, 15 U.S.C. Section 2601 et
seq., (vii) the Safe Drinking Water Act, 42 U.S.C. Section 300f et seq.,
or (viii) foreign, state, local or municipal law, in each case, as may be
amended from time to time.
"INDEBTEDNESS" of any Person means (without duplication) (a) Debt
for Borrowed Money, (b) obligations to pay the deferred purchase price of
property or services, except trade accounts payable arising in the
ordinary course of business which are not overdue, (c) all obligations,
contingent or otherwise, in respect of any letters of credit, bankers'
acceptances or interest rate, currency or commodity swap, cap or floor
arrangements, (d) all indebtedness of others secured by (or for which the
holder of such indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by
such Person, whether or not the indebtedness secured thereby has been
assumed, (e) all amounts payable in connection with mandatory redemptions
or repurchases of preferred stock, and (f) obligations under direct or
indirect guarantees in respect of, and obligations (contingent or
otherwise) to purchase or otherwise acquire, or otherwise to assure a
creditor against loss in respect of, indebtedness or obligations of others
of the kinds referred to in clauses (a) through (e) above.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INDEMNITEE" has the meaning set forth in Section 11.03.
"INDEX DEBT" means the senior unsecured long-term debt securities of
the Borrower, without third-party credit enhancement provided by a Person
other than the Guarantor.
"INFORMATION" has the meaning set forth in Section 11.12.
"INITIAL CREDIT EVENT DATE" means the date on which the initial Loan
or Borrowing is funded or the initial Letter of Credit hereunder is
issued.
"INSUFFICIENCY" means, with respect to any Plan, the amount, if any,
by which the present value of all vested and unvested accrued benefits
under such Plan exceeds the fair market value of assets allocable to such
benefits, all determined as of the then most recent valuation date for
such Plan using actuarial assumptions used in determining such Plan's
normal cost for purposes of Section 412(b)(2)(A) of the Code.
"INTEREST COVERAGE RATIO" means, for any period, the ratio of (i)
the sum of (a) Consolidated Net Income for such period plus (b) income
taxes deducted in determining such Consolidated Net Income plus (c)
Consolidated Interest Expense for such period to (ii) Consolidated
Interest Expense for such period.
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"INTEREST ELECTION REQUEST" means a request by the Borrower to
convert or continue a Revolving Borrowing in accordance with Section 2.06.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December, (b) with respect to
any Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months' duration, the
day that is three months after the first day of such Interest Period, (c)
with respect to any Swingline Loan, the date such Swingline Loan is
required to be repaid and (d) with respect to any Loan, the Termination
Date.
"INTEREST PERIOD" means with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two,
three or six months thereafter, as the Borrower may elect; provided that
(a) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the next preceding
Business Day; and (b) any Interest Period that commences on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of
such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and, in the
case of a Revolving Borrowing, thereafter shall be the effective date of
the most recent conversion or continuation of such Borrowing.
"LC OUTSTANDINGS" means, for any date of determination, the
aggregate maximum amount available to be drawn under all Letters of Credit
outstanding on such date (assuming the satisfaction of all conditions for
drawing enumerated therein).
"LC RISK PARTICIPATION FEE" has the meaning set forth in Section
2.12.
"LENDERS" means (a) the Persons listed on Schedule 2.01, including
any such Person identified thereon or in the signature pages hereto as a
Lead Arranger, and any other Person that shall have become a party hereto
pursuant to an Assignment and Acceptance, other than any such Person that
ceases to be a party hereto pursuant to an Assignment and Acceptance, (b)
the Swingline Lender in respect of the Swingline Loans made by it and (c)
if and to the extent so provided in Section 2.04(c), the LC Bank.
"LETTER OF CREDIT" means a letter of credit issued by the LC Bank
pursuant to the terms of this Agreement, as such letter of credit may from
time to time be amended, modified or extended in accordance with the terms
of this Agreement.
"LIBO RATE" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Telerate Page 3750 (or on any
successor or substitute page of such service, or any successor to or
substitute for such service, providing rate quotations comparable to those
currently provided on such page of such service, as
10
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in
the London interbank market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, as the
rate for dollar deposits with a maturity comparable to such Interest
Period. In the event that such rate is not available at such time for any
reason, then the "LIBO RATE" with respect to such Eurodollar Borrowing for
such Interest Period shall be the rate at which Dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIEN" has the meaning set forth in Section 6.01(a).
"LOANS" means the loans made by the Lenders to the Borrower pursuant
to this Agreement.
"MARGIN STOCK" means margin stock within the meaning of Regulations
U and X issued by the Board.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, assets, operations, condition (financial or otherwise) or
prospects of the Guarantor and its Subsidiaries taken as a whole; (b) the
validity or enforceability of any of Credit Documents or the rights,
remedies and benefits available to the Administrative Agent and the
Lenders thereunder; or (c) the ability of the Borrower or the Guarantor to
consummate the Transactions.
"MATERIAL SUBSIDIARY" means at any time the Borrower, NIPSCO,
Columbia, and each Subsidiary of the Guarantor, other than the Borrower,
NIPSCO and Columbia, in respect of which:
(a) the Guarantor's and its other Subsidiaries' investments in and
advances to such Subsidiary and its Subsidiaries exceed 10% of the
consolidated total assets of the Guarantor and its Subsidiaries taken as a
whole, as of the end of the most recent fiscal year; or
(b) the Guarantor's and its other Subsidiaries' proportionate
interest in the total assets (after intercompany eliminations) of such
Subsidiary and its Subsidiaries exceeds 10% of the consolidated total
assets of the Guarantor and its Subsidiaries as of the end of the most
recent fiscal year; or
(c) the Guarantor's and its other Subsidiaries' equity in the
income from continuing operations before income taxes, extraordinary items
and cumulative effect of a change in accounting principles of such
Subsidiary and its Subsidiaries exceeds 10% of the consolidated income of
the Guarantor and its Subsidiaries for the most recent fiscal year.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc., and any successor
thereto.
11
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, which (a) is maintained for employees of the
Borrower or an ERISA Affiliate and at least one Person other than the
Borrower and its ERISA Affiliates, or (b) was so maintained and in respect
of which the Borrower or an ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event that such plan has been or were
to be terminated.
"NIPSCO" means Northern Indiana Public Service Company, an Indiana
corporation.
"NON-RECOURSE DEBT" means Indebtedness of the Guarantor or any of
its Subsidiaries which is incurred in connection with the acquisition,
construction, sale, transfer or other disposition of specific assets, to
the extent recourse, whether contractual or as a matter of law, for
non-payment of such Indebtedness is limited (a) to such assets or (b) if
such assets are (or are to be) held by a Subsidiary formed solely for such
purpose, to such Subsidiary or the Capital Stock of such Subsidiary.
"OBLIGATIONS" means all amounts, direct or indirect, contingent or
absolute, of every type or description, and at any time existing and
whenever incurred (including, without limitation, after the commencement
of any bankruptcy proceeding), owing to the Administrative Agent or any
Lender pursuant to the terms of this Agreement or any other Credit
Document.
"OTHER TAXES" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar levies arising from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to, this
Agreement.
"OUTSTANDING LOANS" means, as to any Lender at any time, the
aggregate principal amount of all Loans made or maintained by such Lender
then outstanding; provided, however, that for purposes of any calculation
of the Outstanding Loans, any then outstanding Swingline Loans shall be
deemed allocated among the Lenders (other than the Swingline Lender in its
capacity as such) in accordance with their respective Applicable
Percentages.
"PARTICIPANT" has the meaning set forth in Section 11.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar
functions.
"PERSON" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or
12
Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069
of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"PRICING GRID" means the pricing grid attached hereto as Annex A.
"PRIME RATE" means the rate of interest per annum publicly announced
from time to time by Barclays as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be effective
from and including the date such change is publicly announced as being
effective.
"PROJECT" means an energy or power generation, transmission or
distribution facility (including, without limitation, a thermal energy
generation, transmission or distribution facility and an electric power
generation, transmission or distribution facility (including, without
limitation, a cogeneration facility)), a gas production, transportation or
distribution facility, or a minerals extraction, processing or
distribution facility, together with (a) all related electric power
transmission, fuel supply and fuel transportation facilities and power
supply, thermal energy supply, gas supply, minerals supply and fuel
contracts, (b) other facilities, services or goods that are ancillary,
incidental, necessary or reasonably related to the marketing, development,
construction, management, servicing, ownership or operation of such
facility, (c) contractual arrangements with customers, suppliers and
contractors in respect of such facility, and (d) any infrastructure
facility related to such facility, including, without limitation, for the
treatment or management of waste water or the treatment or remediation of
waste, pollution or potential pollutants.
"PROJECT FINANCING" means Indebtedness incurred by a Project
Financing Subsidiary to finance (a) the development and operation of the
Project such Project Financing Subsidiary was formed to develop or (b)
activities incidental thereto; provided that such Indebtedness does not
include recourse to the Guarantor or any of its other Subsidiaries other
than (x) recourse to the Capital Stock in any such Project Financing
Subsidiary, and (y) recourse pursuant to a Contingent Guaranty.
"PROJECT FINANCING SUBSIDIARY" means any Subsidiary (a) that (i) is
not a Material Subsidiary, and (ii) whose principal purpose is to develop
a Project and activities incidental thereto (including, without
limitation, the financing and operation of such Project), or to become a
partner, member or other equity participant in a partnership, limited
liability company or other entity having such a principal purpose, and (b)
substantially all the assets of which are limited to the assets relating
to the Project being developed or Capital Stock in such partnership,
limited liability company or other entity (and substantially all of the
assets of any such partnership, limited liability company or other entity
are limited to the assets relating to such Project); provided that such
Subsidiary incurs no Indebtedness other than in respect of a Project
Financing.
"REGISTER" has the meaning set forth in Section 11.04.
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"RELATED PARTIES" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"REQUEST FOR ISSUANCE" has the meaning set forth in Section 2.04.
"REQUIRED LENDERS" means Lenders having more than 50% in aggregate
amount of the Commitments, or if the Commitments shall have been
terminated, of the Total Outstanding Principal.
"RESPONSIBLE OFFICER" of a Credit Party means any of (a) the
President, the chief financial officer, the chief accounting officer and
the Treasurer of such Credit Party and (b) any other officer of such
Credit Party whose responsibilities include monitoring compliance with
this Agreement.
"REVOLVING LOAN" means a Loan made pursuant to Section 2.02.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw Hill Companies, Inc., and any successor thereto.
"SPFV" has the meaning set forth in Section 11.04.
"SUBSIDIARY" means, with respect to any Person, any corporation or
other entity of which at least a majority of the outstanding shares of
stock or other ownership interests having by the terms thereof ordinary
voting power to elect a majority of the board of directors or other
managers of such corporation or other entity (irrespective of whether or
not at the time stock or other equity interests of any other class or
classes of such corporation or other entity shall have or might have
voting power by reason of the happening of any contingency) is at the time
directly or indirectly owned or controlled by such Person or one or more
of the Subsidiaries of such Person.
"SUBSTANTIAL SUBSIDIARIES" has the meaning set forth in Section
8.01.
"SWINGLINE COMMITMENT" means, for the Swingline Lender, the amount
set forth as the Swingline Lender's Swingline Commitment on Schedule 2.01
hereto.
"SWINGLINE FACILITY AMOUNT" has the meaning specified in Section
2.01(b).
"SWINGLINE LOAN" means a loan made by the Swingline Lender pursuant
to the terms of this Agreement.
"SWINGLINE LENDER" means Barclays.
"SWINGLINE RATE" means: (a) in the case of a Swingline Loan in an
original principal amount of $100,000 or more, a fixed rate of interest
equal to the sum of (i) the Swingline Lender's cost of funds as determined
by the Swingline Lender in its sole discretion with reference to its
funding sources on the date such Swingline Loan is made for a term equal
to the period such Swingline Loan is to be outstanding plus (ii) the
14
Applicable Rate then in effect for Eurodollar Revolving Loans or (b) in
the case of a Swingline Loan in an original principal amount of less than
$100,000, a floating rate of interest equal to the sum of (i) the
Alternate Base Rate plus (ii) the Applicable Rate then in effect for
Alternate Base Rate Loans, in each case, as notified to the Borrower at
the time such Swingline Loan is made. Any Swingline Rate determined in
accordance with clause (a), above, shall be adjusted in each case from
time to time to give effect to all applicable reserve requirements,
including, without limitation, special, emergency or supplemental
reserves.
"SWINGLINE REQUEST" means a request by the Borrower for the
Swingline Lender to make a Swingline Loan, which shall contain the
information in respect of such requested Swingline Loan specified in
Section 2.03(b) and shall be delivered to the Swingline Lender and the
Administrative Agent in writing, or by telephone, immediately confirmed in
writing.
"SYNDICATION AGENT" means Credit Suisse First Boston, in its
capacity as syndication agent for the Lenders hereunder.
"TAXES" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority, including any interest, penalties and additions to tax imposed
thereon or in connection therewith.
"TERMINATING FACILITIES" means financing facilities described on
Schedule 3.01 hereto.
"TERMINATION DATE" means the earliest of (a) March 18, 2007 and (b)
the date upon which the Commitments are terminated pursuant to Section 8.1
or otherwise.
"364-DAY CREDIT AGREEMENT" means the 364-Day Revolving Credit
Agreement, dated as March 18, 2004, among the Borrower, the Guarantor, the
lead arrangers, co-documentation agents and other lenders from time to
time parties thereto, Credit Suisse First Boston, as syndication agent and
Barclays, as administrative agent thereunder.
"TOTAL OUTSTANDING PRINCIPAL" means the aggregate amount of the
Outstanding Loans of all Lenders plus the aggregate LC Outstandings plus
the aggregate Unreimbursed LC Disbursements.
"TRANSACTIONS" means the execution, delivery and performance by the
Borrower of this Agreement and the Borrowing of Loans and issuances of
Letters of Credit hereunder.
"TYPE", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the LIBO Rate or the Alternate
Base Rate.
"UNREIMBURSED LC DISBURSEMENT" means the unpaid obligation (or, if
the context so requires, the amount of such obligation) of the Borrower to
reimburse the LC Bank for a payment made by the LC Bank under a Letter of
Credit, but shall not include
15
any portion of such obligation that has been repaid with the proceeds of,
or converted to, Loans hereunder.
"UTILITY SUBSIDIARY" means a Subsidiary of the Guarantor that is
subject to regulation by a Governmental Authority (federal, state or
otherwise) having authority to regulate utilities, and any Wholly-Owned
Subsidiary thereof.
"UTILIZATION FEE" has the meaning set forth in Section 2.12.
"WHOLLY-OWNED SUBSIDIARY" shall mean, with respect to any Person,
any corporation or other entity of which all of the outstanding shares of
stock or other ownership interests in which, other than directors'
qualifying shares (or the equivalent thereof), are at the time directly or
indirectly owned or controlled by such Person or one or more of the
Subsidiaries of such Person.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan,
as such terms are defined in Sections 4201, 4203 and 4205 of ERISA.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "REVOLVING
LOAN") or by Type (e.g., a "EURODOLLAR LOAN") or by Class and Type (e.g., a
"EURODOLLAR REVOLVING LOAN"). Borrowings also may be classified and referred to
by Class (e.g., a "REVOLVING BORROWING") or by Type (e.g., a "EURODOLLAR
BORROWING") or by Class and Type (e.g., a "EURODOLLAR REVOLVING BORROWING").
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "or" shall
not be exclusive. The word "will" shall be construed to have the same meaning
and effect as the word "shall". Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights. The terms "knowledge of", "awareness of" and "receipt of notice
of" in relation to a Credit Party, and other similar expressions, mean knowledge
of, awareness of, or receipt of notice by, a Responsible Officer of such Credit
Party.
16
SECTION 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the Effective Date in GAAP or in the application thereof
on the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS.
(a) Subject to the terms and conditions set forth herein, each Lender
agrees to make Revolving Loans to the Borrower from time to time during the
Availability Period in an aggregate principal amount that will not result in (i)
such Lender's Exposure exceeding such Lender's Commitment or (ii) the sum of the
Exposures of all of the Lenders exceeding the Aggregate Commitments.
(b) Subject to the terms and conditions set forth herein, the Swingline
Lender agrees to make Swingline Loans to the Borrower from time to time during
the Availability Period in an aggregate principal amount that will not result in
(i) the aggregate principal amount of all Swingline Loans made by the Swingline
Lender then outstanding under this Agreement exceeding the Swingline Lender's
Swingline Commitment, (ii) the aggregate principal amount of all Swingline Loans
then outstanding under this Agreement exceeding $200,000,000 (the "SWINGLINE
FACILITY AMOUNT"), (iii) any Lender's Exposure exceeding such Lender's
Commitment or (iv) the sum of the Exposures of all of the Lenders exceeding the
Aggregate Commitments.
(c) Subject to the terms and conditions set forth herein, the LC Bank
agrees to issue Letters of Credit and each Lender agrees to participate in such
Letters of Credit, in each case as set forth herein, from time to time during
the Availability Period in an aggregate stated amount that will not result in
(i) the aggregate LC Outstandings under this Agreement exceeding $500,000,000,
(ii) any Lender's Exposure exceeding such Lender's Commitment or (iii) the sum
of the Exposures of all of the Lenders exceeding the Aggregate Commitments.
(d) Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans
and Swingline Loans and request the issuance of Letters of Credit.
17
SECTION 2.02. REVOLVING LOANS AND REVOLVING BORROWINGS; REQUESTS FOR
BORROWINGS.
(a) Each Revolving Loan shall be made as part of a Borrowing consisting of
Revolving Loans made by the Lenders ratably in accordance with their respective
Commitments. The failure of any Lender to make any Loan required to be made by
it shall not relieve any other Lender of its obligations hereunder; provided
that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $5,000,000 and not less than $10,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $100,000; provided that an ABR Revolving
Borrowing may be to an aggregate amount that is equal to the entire unused
balance of the Aggregate Commitments. Borrowings of more than one Type and Class
may be outstanding at the same time; provided that there shall not at any time
be more than a total of ten Eurodollar Revolving Borrowings outstanding under
this Agreement and the 364-Day Credit Agreement.
(d) To request a Revolving Borrowing, the Borrower shall notify the
Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing or (b) in the case of an
ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of the
proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period".
18
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the Borrower shall
be deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request, or to elect to convert or continue, any
Eurodollar Borrowing if the Interest Period requested with respect thereto would
end after the Termination Date.
SECTION 2.03. SWINGLINE LOANS.(a) Each Swingline Loan to be made by the
Swingline Lender shall be made on notice given by the Borrower to the Swingline
Lender and the Administrative Agent via fax transmission in accordance with
Section 11.01 hereof not later than 11:00 A.M. (New York City time) on the
borrowing date of the proposed Swingline Loan (which shall be a Business Day) or
such later time as the Swingline Lender and the Administrative Agent may agree.
Each such notice (a "SWINGLINE REQUEST") shall specify the requested borrowing
date of such Swingline Loan, the amount thereof and the maturity date thereof
(which shall be a Business Day not later than five days from the date such
Swingline Loan is to be made). Upon receipt of any Swingline Request, the
Swingline Lender shall give to the Administrative Agent prompt notice thereof by
fax transmission, and shall notify the Borrower and the Administrative Agent of
the Swingline Rate to be applicable thereto. The Swingline Lender shall, before
2:00 P.M. (New York City time) on the borrowing date of such Swingline Loan,
make such Swingline Loan available to the Administrative Agent, in same day
funds, and, after the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the Borrower to an
account within the United States of America specified in the relevant Swingline
Request or, if not so specified, in accordance with Section 2.05.
(b) Each Swingline Loan shall bear interest at the Swingline Rate and
shall mature on the first to occur of: (i) the date specified in the relevant
Swingline Request, (ii) the date that is five days following the date such
Swingline Loan was made and (iii) the Termination Date. At no time shall more
than a total of five Swingline Loans be outstanding under this Agreement.
(c) At any time upon written demand by the Swingline Lender, with a copy
of such demand to the Administrative Agent, and automatically upon the
occurrence of an Event of Default, each other Lender shall purchase from the
Swingline Lender, and the Swingline Lender shall sell and assign to each such
other Lender, such other Lender's pro rata share (based on its Applicable
Percentage) of the Swingline Loans of the Swingline Lender outstanding as of the
date of such demand or occurrence, as the case may be, by making available to
the Administrative Agent for the account of the Swingline Lender an amount in
same day funds equal to the portion of the principal amount of each outstanding
Swingline Loan to be purchased by such Lender. The Borrower hereby agrees to
each such sale and assignment. Each Lender agrees to purchase its pro rata share
(based on its Applicable Percentage) of each outstanding Swingline Loan on (i)
the Business Day on which demand therefor is made by the Swingline Lender,
provided, that, notice of such demand is received by such Lender not later than
11:00 A.M. (New York City time) on such Business Day, (ii) the first Business
Day next succeeding
19
such demand, if notice of such demand is received after such time or (iii) the
first Business Day next succeeding the occurrence of such Event of Default. Upon
any such assignment by the Swingline Lender to any other Lender of a portion of
any Swingline Loan, the Swingline Lender represents and warrants to such other
Lender that the Swingline Lender is the legal and beneficial owner of the
interest being assigned by it, but makes no other representation or warranty and
assumes no responsibility with respect to such Swingline Loan, the Financing
Documents or the Borrower. If and to the extent that any Lender shall not have
so made the amount of such Swingline Loan or portion thereof available to the
Administrative Agent for the account of the Swingline Lender, such Lender agrees
to pay to the Swingline Lender forthwith on demand such amount together with
interest thereon for each day from the date of demand by the Swingline Lender
until the date such amount is paid to the Swingline Lender, at the Federal Funds
Effective Rate. If such Lender shall pay such amount to the Swingline Lender on
any Business Day, such amount so paid in respect of principal shall constitute
an ABR Revolving Loan made by such Lender on such Business Day for all purposes
of this Agreement, and the outstanding principal amount of the relevant
Swingline Loan(s) shall be reduced accordingly by such amount on such Business
Day. The obligation of each other Lender to purchase its pro rata share of the
Swingline Lender's Swingline Loans in accordance with this subsection shall be
absolute and unconditional, notwithstanding the occurrence of any circumstances,
including without limitation any Event of Default or any setoff, deduction or
other defense asserted by the Borrower or any other Person, except that any
Lender shall have the right to bring suit against the Swingline Lender, and the
Swingline Lender shall be liable to such Lender, to the extent of any direct, as
opposed to consequential, damages suffered by such Lender which such Lender
proves were caused by the Swingline Lender's wilful misconduct or gross
negligence.
SECTION 2.04. LETTERS OF CREDIT
(a) LC Bank. Subject to the terms and conditions hereof, the Borrower may
from time to time request Barclays, as LC Bank, to issue one or more Letters of
Credit hereunder. Any such request by the Borrower shall be notified to the
Administrative Agent at least five Business Days prior to the date upon which
the Borrower proposes that the LC Bank issue such Letter of Credit. At no time
shall (i) the aggregate LC Outstandings exceed the sum of the Commitments or
(ii) the sum of the aggregate LC Outstandings under this Agreement exceed
$500,000,000.
(b) Letters of Credit. Each Letter of Credit shall be issued (or the
stated maturity thereof extended or terms thereof modified or amended) on not
less than five Business Days' prior written notice thereof to the Administrative
Agent (which shall promptly distribute copies thereof to the Lenders) and the LC
Bank. Each such notice (a "REQUEST FOR ISSUANCE") shall specify (i) the date
(which shall be a Business Day) of issuance of such Letter of Credit (or the
date of effectiveness of such extension, modification or amendment) and the
stated expiry date thereof (which shall be not later than the Termination Date),
(ii) the proposed stated amount of such Letter of Credit and (iii) such other
information as shall demonstrate compliance of such Letter of Credit with the
requirements specified therefor in this Agreement. Each Request for Issuance
shall be irrevocable unless modified or rescinded by the Borrower not less than
two days prior to the proposed date of issuance (or effectiveness) specified
therein. If the LC Bank shall have approved the form of such Letter of Credit
(or such extension, modification or amendment thereof), the LC Bank shall not
later than 11:00 A.M. (New York City time) on the proposed date specified in
such Request for Issuance, and upon fulfillment of the applicable conditions
20
precedent and the other requirements set forth herein and as otherwise agreed to
between the LC Bank and the Borrower, issue (or extend, amend or modify) such
Letter of Credit and provide notice and a copy thereof to the Administrative
Agent. The Administrative Agent shall furnish (x) to each Lender, a copy of such
notice and (y) to each Lender that may so request, a copy of such Letter of
Credit.
(c) Reimbursement on Demand. Subject to the provisions of Section 2.04(d)
hereof, the Borrower hereby agrees to pay (whether with the proceeds of Loans
made pursuant to this Agreement or otherwise) to the LC Bank on demand (i) on
and after each date on which the LC Bank shall pay any amount under any Letter
of Credit a sum equal to such amount so paid (which sum shall constitute a
demand loan from the LC Bank to the Borrower from the date of such payment by
the LC Bank until so paid by the Borrower), plus (ii) interest on any amount
remaining unpaid by the Borrower to the LC Bank under clause (i), above, from
the date such amount becomes payable on demand until payment in full, at a rate
per annum which is equal to 2% plus the then applicable Alternate Base Rate
until paid in full.
(d) Loans for Unreimbursed LC Disbursements. If the LC Bank shall make any
payment under any Letter of Credit and if the conditions precedent set forth in
Section 3.02 of this Agreement have been satisfied as of the date of such honor,
then, each Lender's payment made to the LC Bank pursuant to paragraph (e) of
this Section 2.04 in respect of such Unreimbursed LC Disbursement shall be
deemed to constitute an ABR Loan made for the account of the Borrower by such
Lender. Each such ABR Loan shall have an Interest Period ending on (i) the first
March 31, June 30, September 30 or December 31 to occur following the date such
ABR Loan is made, or (ii) if earlier, the Termination Date.
(e) Participation; Reimbursement of LC Bank.
(i) Upon the issuance of any Letter of Credit by the LC Bank, the
LC Bank hereby sells and transfers to each Lender, and each Lender hereby
acquires from the LC Bank, an undivided interest and participation to the
extent of such Lender's Applicable Percentage in and to such Letter of
Credit, including the obligations of the LC Bank under and in respect
thereof and the Borrower's reimbursement and other obligations in respect
thereof, whether now existing or hereafter arising.
(ii) If the LC Bank shall not have been reimbursed in full for any
payment made by the LC Bank under any Letter of Credit on the date of such
payment, the LC Bank shall promptly notify the Administrative Agent and
the Administrative Agent shall promptly notify each Lender of such
non-reimbursement and the amount thereof. Upon receipt of such notice from
the Administrative Agent, each Lender shall pay to the Administrative
Agent for the account of the LC Bank an amount equal to such Lender's
Applicable Percentage of such Unreimbursed LC Disbursement, plus interest
on such amount at a rate per annum equal to the Federal Funds Rate from
the date of such payment by the LC Bank to the date of payment to the LC
Bank by such Lender. All such payments by each Lender shall be made in
United States dollars and in same day funds not later than 3:00 P.M. (New
York City time) on the later to occur of (A) the Business Day immediately
following the date of such payment by the LC Bank and (B) the Business Day
on which such Lender shall have received notice of such non-
21
reimbursement; provided, however, that if such notice is received by such
Lender later than 11:00 A.M. (New York City time) on such Business Day,
such payment shall be payable on the next Business Day. Each Lender agrees
that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. If a Lender shall have paid to the LC
Bank its ratable portion of any Unreimbursed LC Disbursement, together
with all interest thereon required by the second sentence of this
subparagraph (ii), such Lender shall be entitled to receive its ratable
share of all interest paid by the Borrower in respect of such Unreimbursed
LC Disbursement. If such Lender shall have made such payment to the LC
Bank, but without all such interest thereon required by the second
sentence of this subparagraph (ii), such Lender shall be entitled to
receive its ratable share of the interest paid by the Borrower in respect
of such Unreimbursed LC Disbursement only from the date it shall have paid
all interest required by the second sentence of this subparagraph (ii).
(iii) The failure of any Lender to make any payment to the LC Bank
in accordance with subparagraph (ii) above, shall not relieve any other
Lender of its obligation to make payment, but neither the LC Bank nor any
Lender shall be responsible for the failure of any other Lender to make
such payment. If any Lender shall fail to make any payment to the LC Bank
in accordance with subparagraph (ii) above, then such Lender shall pay to
the LC Bank forthwith on demand such corresponding amount together with
interest thereon, for each day until the date such amount is repaid to the
LC Bank at the Federal Funds Rate. Nothing herein shall in any way limit,
waive or otherwise reduce any claims that any party hereto may have
against any non-performing Lender.
(iv) If any Lender shall fail to make any payment to the LC Bank in
accordance with subparagraph (ii), above, then, in addition to other
rights and remedies which the LC Bank may have, the Administrative Agent
is hereby authorized, at the request of the LC Bank, to withhold and to
apply to the payment of such amounts owing by such Lender to the LC Bank
and any related interest, that portion of any payment received by the
Administrative Agent that would otherwise be payable to such Lender. In
furtherance of the foregoing, if any Lender shall fail to make any payment
to the LC Bank in accordance with subparagraph (ii), above, and such
failure shall continue for five Business Days following written notice of
such failure from the LC Bank to such Lender, the LC Bank may acquire, or
transfer to a third party in exchange for the sum or sums due from such
Lender, such Lender's interest in the related Unreimbursed LC Disbursement
and all other rights of such Lender hereunder in respect thereof, without,
however, relieving such Lender from any liability for damages, costs and
expenses suffered by the LC Bank as a result of such failure, and prior to
such transfer, the LC Bank shall be deemed, for purposes of Section 2.18
and Article VIII hereof, to be a Lender hereunder owed a Loan in an amount
equal to the outstanding principal amount due and payable by such Lender
to the Administrative Agent for the account of such LC Bank pursuant to
subparagraph (ii), above. The purchaser of any such interest shall be
deemed to have acquired an interest senior to the interest of such Lender
and shall be entitled to receive all subsequent payments which the LC Bank
or the Administrative Agent would otherwise have made hereunder to such
Lender in respect of such interest.
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(f) Obligations Absolute. The payment obligations of each Lender under
Section 2.04(e) and of the Borrower under Section 2.04(c) of this Agreement in
respect of any payment under any Letter of Credit and any Loan made under
Section 2.04(d) shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of any Credit Document
or any other agreement or instrument relating thereto or to such Letter of
Credit;
(ii) any amendment or waiver of, or any consent to departure from,
all or any of the Credit Documents;
(iii) the existence of any claim, set-off, defense or other right
which the Borrower may have at any time against any beneficiary, or any
transferee, of such Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the LC Bank, or any
other Person, whether in connection with this Agreement, the transactions
contemplated herein or by such Letter of Credit, or any unrelated
transaction;
(iv) any statement or any other document presented under such
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment in good faith by the LC Bank under the Letter of
Credit issued by the LC Bank against presentation of a draft or
certificate which does not comply with the terms of such Letter of Credit;
or
(vi) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing.
(g) Liability of LC Bank and the Lenders. The Borrower assumes all risks
of the acts and omissions of any beneficiary or transferee of any Letter of
Credit. Neither the LC Bank, the Lenders nor any of their respective officers,
directors, employees, agents or Affiliates shall be liable or responsible for
(i) the use that may be made of such Letter of Credit or any acts or omissions
of any beneficiary or transferee thereof in connection therewith; (ii) the
validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (iii) payment by the LC Bank
against presentation of documents that do not comply with the terms of such
Letter of Credit, including failure of any documents to bear any reference or
adequate reference to such Letter of Credit; or (iv) any other circumstances
whatsoever in making or failing to make payment under such Letter of Credit,
except that the Borrower or any Lender shall have the right to bring suit
against the LC Bank, and the LC Bank shall be liable to the Borrower and any
Lender, to the extent of any direct, as opposed to consequential, damages
suffered by the Borrower or such Lender which the Borrower or such Lender proves
were caused by the LC Bank's wilful misconduct or gross negligence, including
the LC Bank's wilful or grossly negligent failure to make timely payment under
such Letter of Credit following the presentation to it by the beneficiary
thereof of a draft and accompanying certificate(s) which strictly comply
23
with the terms and conditions of such Letter of Credit. In furtherance and not
in limitation of the foregoing, the LC Bank may accept sight drafts and
accompanying certificates presented under the Letter of Credit issued by the LC
Bank that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary.
Notwithstanding the foregoing, no Lender shall be obligated to indemnify the
Borrower for damages caused by the LC Bank's wilful misconduct or gross
negligence, and the obligation of the Borrower to reimburse the Lenders
hereunder shall be absolute and unconditional, notwithstanding the gross
negligence or wilful misconduct of the LC Bank.
SECTION 2.05. FUNDING OF BORROWINGS.
(a) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by 3:00
p.m., New York City time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders. The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account established and
maintained by the Borrower at the Administrative Agent's office in New York
City.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed time of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the Federal Funds Effective Rate or (ii) in the
case of the Borrower, the interest rate applicable to ABR Loans. If such Lender
pays such amount to the Administrative Agent, then such amount shall constitute
such Lender's Loan included in such Borrowing.
SECTION 2.06. INTEREST ELECTIONS.
(a) Each Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different Type
or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may
elect Interest Periods therefor, all as provided in this Section. The Borrower
may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would
24
be required under Section 2.02 if the Borrower were requesting a Borrowing of
the Type resulting from such election to be made on the effective date of such
election. Each such telephonic Interest Election Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a form approved
by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request
with respect to a Eurodollar Borrowing prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein, at
the end of such Interest Period such Borrowing shall be converted to an ABR
Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Borrower, then, so long as an Event of
Default is continuing (i) no outstanding Borrowing may be converted to or
continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.07. MANDATORY TERMINATION OR REDUCTION OF COMMITMENTS.
(a) Unless previously terminated, the Commitments shall terminate on the
Termination Date.
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SECTION 2.08. MANDATORY PREPAYMENTS.
(a) If at any time the Total Outstanding Principal exceeds the Aggregate
Commitments then in effect for any reason whatsoever (including, without
limitation, as a result of any reduction in the Aggregate Commitments pursuant
to Section 2.09), the Borrower shall prepay Loans in such aggregate amount
(together with accrued interest thereon to the extent required by Section 2.13)
as shall be necessary so that, after giving effect to such prepayment, the Total
Outstanding Principal does not exceed the Aggregate Commitments.
(b) Each prepayment of Loans pursuant to this Section 2.08 shall be
accompanied by the Borrower's payment of any amounts payable under Section 2.16
in connection with such prepayment. Prepayments of Revolving Loans shall be
applied ratably to the Loans so prepaid.
SECTION 2.09. OPTIONAL REDUCTION OF COMMITMENTS.
(a) The Borrower may at any time terminate, or from time to time reduce,
the Commitments; provided that (i) each reduction of the Commitments shall be in
an amount that is an integral multiple of $10,000,000 and (ii) the Borrower
shall not terminate or reduce the Commitments if, after giving effect to any
concurrent prepayment of the Loans in accordance with Section 2.11, the Total
Outstanding Principal would exceed the Aggregate Commitments thereafter in
effect.
(b) The Borrower shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under Section 2.09(a) at least five Business
Days prior to the effective date of such termination or reduction, specifying
such election and the effective date thereof. Promptly following receipt of any
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrower pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Commitments delivered
by the Borrower may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or reduction
of the Commitments shall be permanent.
(c) Each reduction of the Commitments pursuant to this Section 2.09 shall
be made ratably among the Lenders in accordance with their respective
Commitments immediately preceding such reduction.
SECTION 2.10. REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent (i) for the account of each Lender the then unpaid
principal amount of each Revolving Loan on the Termination Date and (ii) for the
account of the Swingline Lender the then unpaid principal amount of each
Swingline Loan on the maturity date therefor as determined pursuant to Section
2.03.
(b) Each Lender (including the Swingline Lender) shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Loan (including
each Swingline Loan) made by such Lender,
26
including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders (including the Swingline Lender)
and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender (including the Swingline Lender) may request that Loans
made by it be evidenced by a promissory note. In such event, the Borrower shall
prepare, execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 11.04) be
represented by one or more promissory notes in such form payable to the order of
the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
SECTION 2.11. OPTIONAL PREPAYMENT OF LOANS.
(a) The Borrower shall have the right at any time and from time to time to
prepay any Borrowing (including any Swingline Borrowing) in whole or in part,
subject to prior notice in accordance with paragraph (b) of this Section.
(b) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Borrowing, not later than 11:00 a.m., New York City
time, on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given
in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.09, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.09. Promptly
following receipt of any such notice relating to a Borrowing, the Administrative
Agent shall advise the Lenders of the contents thereof. Each partial prepayment
of any Revolving Borrowing shall be in an amount that would be permitted in the
case of an advance of a Revolving Borrowing of the same Type as provided in
Section 2.02, and each partial prepayment of a Swingline Borrowing shall be in
an amount not less than $100,000 or any integral multiple thereof, it being
understood
27
that the foregoing minimums shall not apply to the prepayment in whole of the
outstanding Revolving Loans of all Lenders or to the prepayment in whole of the
outstanding Swingline Loans of the Swingline Lender. Each prepayment of a
Revolving Borrowing shall be applied ratably to the Loans included in the
prepaid Revolving Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.13 and by any amounts payable under
Section 2.16 in connection with such prepayment.
SECTION 2.12. FEES.
(a) The Borrower agrees to pay to the Administrative Agent for the account
of each Lender a facility fee (each a "FACILITY FEE"), which shall accrue at the
Applicable Rate on the daily amount of the Commitment of such Lender (whether
used or unused) during the period from and including the Effective Date to but
excluding the date on which such Commitment terminates; provided that, if such
Lender continues to have any Outstanding Loans after its Commitment terminates,
then such Facility Fee shall continue to accrue on the daily amount of such
Lender's Outstanding Loans from and including the date on which its Commitment
terminates to but excluding the date on which such Lender ceases to have any
Outstanding Loans. Accrued Facility Fees shall be payable in arrears on the last
day of March, June, September and December of each year and on the date on which
the Commitments terminate, commencing on the first such date to occur after the
Effective Date; provided that any Facility Fees accruing after the date on which
the Commitments terminate shall be payable on demand. All Facility Fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
(b) The Borrower agrees to pay to the Administrative Agent for the account
of each Lender a letter of credit risk participation fee (each a "LC RISK
PARTICIPATION FEE"), which shall accrue at the Applicable Rate on the average
daily amount of the LC Outstandings during the period from and including the
Effective Date to but excluding the Termination Date or such later date as on
which there shall cease to be any LC Outstandings. Accrued LC Risk Participation
Fees shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the Commitments terminate,
commencing on the first such date to occur after the Effective Date; provided
that any LC Risk Participation Fees accruing after the date on which the
Commitments terminate shall be payable on demand. All LC Risk Participation Fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day). The Borrower shall also pay to the LC Bank for its own account (x) a
fronting fee, which fronting fee shall accrue at a per annum rate agreed upon
between the Borrower and the LC Bank on the average daily amount of the LC
Outstanding during the period such Letter of Credit shall be outstanding, which
fronting fee shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which such Letter of
Credit terminates, and (y) documentary and processing charges in connection with
the issuance, or modification cancellation, negotiation, or transfer of, and
draws under Letters of Credit in accordance with the LC Bank's standard schedule
for such charges as in effect from time to time.
(c) The Borrower agrees to pay to the Administrative Agent, for its own
account and for the account of the other Persons entitled thereto, the fees
provided for in that certain fee letter dated February 18, 2004, executed and
delivered with respect to the credit facility provided for
28
herein, in each case, in the amounts and at the times set forth therein and in
immediately available funds.
(d) If at any time (i) the sum of (A) the Total Outstanding Principal plus
(B) the "Total Outstanding Principal" under (and as defined in) the 364-Day
Credit Agreement exceeds 50% of (ii) the sum of (X) the Aggregate Commitments
plus (Y) the "Aggregate Commitments" under (and as defined in) the 364-Day
Credit Agreement, the Borrower shall pay to the Administrative Agent, for the
account of the Lenders ratably in proportion to their respective Applicable
Percentages, a utilization fee (the "UTILIZATION FEE") calculated for each day
with respect to the Total Outstanding Principal on such day at the rate for such
day determined in accordance with the Pricing Grid. The accrued Utilization Fee
shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the Commitments terminate,
commencing on the first such date to occur after the Effective Date; provided
that any Utilization Fee accruing after the date on which the Commitments
terminate shall be payable on demand. The Utilization Fee shall be computed on
the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(e) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (for distribution, in
the case of Facility Fees, LC Risk Participation Fees and any Utilization Fee,
to the Lenders). Fees due and paid shall not be refundable under any
circumstances.
SECTION 2.13. INTEREST.
(a) The Loans comprising each ABR Borrowing shall bear interest at a rate
per annum equal to the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest at
a rate per annum equal to the LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Rate.
(c) Each Swingline Loan shall bear interest at a rate per annum equal to
the Swingline Rate, as determined for such Swingline Loan and notified by the
Swingline Lender to the Borrower in accordance with Section 2.03(a).
(d) Notwithstanding the foregoing, if any principal of or interest on any
Loan or any fee or other amount payable by the Borrower hereunder is not paid
when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided above or (ii) in the case of
any other amount, 2% plus the rate applicable to ABR Loans as provided above.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan; provided that (i) interest accrued pursuant
to paragraph (d) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan, accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or
prepayment, (iii) in the event of any conversion of any Eurodollar Revolving
Loan prior to the end of the current Interest Period therefor, accrued interest
on such Loan shall be
29
payable on the effective date of such conversion and (iv) all accrued interest
shall be payable upon termination of the Commitments.
(f) All interest hereunder shall be computed on the basis of a year of 360
days, except that interest computed by reference to the Alternate Base Rate at
times when the Alternate Base Rate is based on the Prime Rate shall be computed
on the basis of a year of 365 days (or 366 days in a leap year), and in each
case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate or LIBO Rate
shall be determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.14. ALTERNATE RATE OF INTEREST. If prior to the commencement of
any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent reasonably determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that the
LIBO Rate for such Interest Period will not adequately and fairly reflect the
cost to such Lenders of making or maintaining their Loans included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective and (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing.
SECTION 2.15. INCREASED COSTS. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender or the LC Bank (except any such
reserve requirement described in paragraph (e) of this Section); or
(ii) impose on any Lender or the LC Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans
made by such Lender or participation therein or Unreimbursed LC
Disbursements or Letters of Credit and participations therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender or the LC Bank of making or maintaining any Eurodollar Loan or
Unreimbursed LC Disbursement or issuing or maintaining Letters of Credit and
participation interests therein (or of maintaining its obligation to make any
such Loan or issue or participate in such Letter of Credit) or to reduce the
amount of any sum received or receivable by such Lender or the LC Bank hereunder
(whether of principal, interest or otherwise), then the Borrower will pay to
such Lender or the LC Bank, as the case
30
may be, such additional amount or amounts as will compensate such Lender or the
LC Bank for such additional costs incurred or reduction suffered.
(b) If any Lender or the LC Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the LC Bank's capital or on the capital of its
holding company, if any, as a consequence of this Agreement to a level below
that which such Lender or the LC Bank or its holding company could have achieved
but for such Change in Law (taking into consideration its policies and the
policies of its holding company with respect to capital adequacy), then from
time to time the Borrower will pay to such Lender or the LC Bank, as the case
may be, such additional amount or amounts as will compensate it or its holding
company for any such reduction suffered.
(c) A certificate of a Lender or the LC Bank, as the case may be, setting
forth the amount or amounts necessary to compensate it or its holding company as
specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
the amount shown as due on any such certificate within 10 days after receipt
thereof.
(d) Failure or delay on the part of any Lender or the LC Bank to demand
compensation pursuant to this Section shall not constitute a waiver of its right
to demand such compensation; provided that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than ninety days prior to the date that such Lender or
the LC Bank notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of its intention to claim compensation
therefor; provided, further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the ninety day period
referred to above shall be extended to include the period of retroactive effect
thereof.
(e) The Borrower shall pay (without duplication as to amounts paid under
this Section 2.15) to each Lender, so long as such Lender shall be required
under regulations of the Board to maintain reserves with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities, additional
interest on the unpaid principal amount of each Eurodollar Loan of such Lender,
from the date of such Loan until such principal amount is paid in full, at an
interest rate per annum equal at all times to the remainder obtained by
subtracting (i) the LIBO Rate for the Interest Period for such Loan from (ii)
the rate obtained by dividing such LIBO Rate by a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage of such Lender for such Interest Period,
payable on each date on which interest is payable on such Loan. Such additional
interest determined by such Lender and notified to the Borrower and the
Administrative Agent, accompanied by the calculation of the amount thereof,
shall be conclusive and binding for all purposes absent manifest error.
SECTION 2.16. BREAK FUNDING PAYMENTS. In the event of (a) the payment of
any principal of any Eurodollar Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Revolving Loan on the date specified in any notice delivered pursuant
hereto (regardless of whether such notice is permitted to be revocable under
Section 2.11(b) and is revoked in accordance therewith), or (d) the assignment
of any Eurodollar
31
Loan other than on the last day of the Interest Period applicable thereto as a
result of a request by the Borrower pursuant to Section 2.19, then, in any such
event, the Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, the loss to any
Lender attributable to any such event shall be deemed to include an amount
reasonably determined by such Lender to be equal to the excess, if any, of (x)
the amount of interest that such Lender would pay for a deposit equal to the
principal amount of such Loan for the period from the date of such payment,
conversion, failure or assignment to the last day of the then current Interest
Period for such Loan (or, in the case of a failure to borrow, convert or
continue, the duration of the Interest Period that would have resulted from such
borrowing, conversion or continuation) if the interest rate payable on such
deposit were equal to the LIBO Rate for such Interest Period, over (y) the
amount of interest that such Lender would earn on such principal amount for such
period if such Lender were to invest such principal amount for such period at
the interest rate that would be bid by such Lender (or an affiliate of such
Lender) for dollar deposit from other banks in the eurodollar market at the
commencement of such period. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.17. TAXES.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if any Credit Party shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent, LC Bank or Lender (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Credit Party shall make such deductions and
(iii) such Credit Party shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, the LC Bank and
each Lender, within 10 days after written demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes (and for any Taxes imposed or asserted
on or attributable to amounts payable under this Section) paid by the
Administrative Agent, the LC Bank or such Lender, as the case may be, and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or the LC Bank, or by the Administrative Agent on its own
behalf or on behalf of a Lender or the LC Bank, shall be conclusive absent
manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by a Credit Party to a Governmental Authority, such Credit Party shall
deliver to the Administrative
32
Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative
Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction
of withholding tax under the laws of the jurisdiction in which the Borrower or
the Guarantor is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Borrower
(with an additional original or a photocopy, as required under applicable rules
and procedures, to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower, such properly completed
and executed documentation prescribed by applicable law as shall be necessary to
permit such payments to be made without withholding or at a reduced rate.
Further, in those circumstances as shall be necessary to allow payments
hereunder to be made free of (or at a reduced rate of) withholding tax, each
other Lender and the Administrative Agent, as applicable, shall deliver to
Borrower such documentation as the Borrower may reasonably request in writing.
(f) Except with the prior written consent of the Administrative Agent, all
amounts payable by a Credit Party hereunder shall be made by such Credit Party
in its own name and for its own account from within the United States by a payor
that is a United States person (within the meaning of Section 7701 of the Code).
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SET-OFFS.
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest or fees, or under Section 2.15, 2.16,
2.17 or 11.03, or otherwise) prior to 12:00 noon, New York City time, on the
date when due, in immediately available funds, without set-off or counterclaim.
Any amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, except that payments pursuant to Sections 2.15, 2.16, 2.17 and
11.03 shall be made directly to the Persons entitled thereto. The Administrative
Agent shall distribute any such payments received by it for the account of any
other Person to the appropriate recipient promptly following receipt thereof. If
any payment hereunder shall be due on a day that is not a Business Day, the date
for payment shall be extended to the next succeeding Business Day, and, in the
case of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, interest and fees
then due hereunder, such funds shall be applied (i) first, to pay interest and
fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, to pay principal then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal then due to such
parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of the Obligations owing to it
33
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of such Obligations and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Revolving Loans; provided that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment made by the Borrower pursuant to
and in accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant, other than to
the Guarantor, the Borrower or any other Subsidiary or Affiliate of the
Guarantor (as to which the provisions of this paragraph shall apply). The
Borrower and the Guarantor consent to the foregoing and agree, to the extent
they may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower and the Guarantors rights of set-off and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the
Borrower or the affected Guarantor in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.03(c), 2.04(e), 2.05(b) or 2.18(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) Any Lender claiming reimbursement or compensation from the Borrower
under either of Sections 2.15 and 2.17 for any losses, costs or other
liabilities shall use reasonable efforts (including, without limitation,
reasonable efforts to designate a different lending office of such Lender for
funding or booking its Loans or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates) to mitigate the amount of
such losses, costs and other liabilities, if such efforts can be made and such
mitigation can be accomplished without such Lender suffering (i) any economic
disadvantage for which such Lender does not receive full indemnity from the
Borrower under this Agreement or (ii) otherwise be disadvantageous to such
Lender.
34
(b) In determining the amount of any claim for reimbursement or
compensation under Sections 2.15 and 2.17, each Lender will use reasonable
methods of calculation consistent with such methods customarily employed by such
Lender in similar situations.
(c) Each Lender will notify the Borrower either directly or through the
Administrative Agent of any event giving rise to a claim under Section 2.15 or
Section 2.17 promptly after the occurrence thereof which notice shall be
accompanied by a certificate of such Lender setting forth in reasonable detail
the circumstances of such claim.
(d) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 11.04), all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent and
the LC Bank, which consent, in the case of the Administrative Agent, shall not
unreasonably be withheld and, in the case of the LC Bank, may be given or
withheld in the sole discretion of the LC Bank, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts)
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.15 or payments required to be made pursuant to
Section 2.17, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
ARTICLE III
CONDITIONS
SECTION 3.01. CONDITIONS PRECEDENT TO THE INITIAL EXTENSION OF CREDIT. The
obligation of each Lender to make the Initial Extension of Credit shall not
become effective until the date on which each of the following conditions, and
each of the conditions set forth in Section 3.02, is satisfied (or waived in
accordance with Section 11.02); provided that each of the conditions set forth
in this Section 3.01 shall be satisfied or waived no later than the Initial
Credit Event Date.
(a) The Administrative Agent (or its counsel) shall have received from
each party thereto either (i) a counterpart of this Agreement and the 364-Day
Credit Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement or the 364-Day Credit
35
Agreement, as applicable) that such party has signed a counterpart of this
Agreement and the 364-Day Credit Agreement.
(b) The Lenders, the Administrative Agent, the Arrangers and each other
Person entitled to the payment of fees or the reimbursement or payment of
expenses, pursuant hereto or to that certain fee letter dated February 18, 2004,
executed and delivered with respect to the credit facility provided for herein,
shall have received all fees required to be paid by the Initial Credit Event
Date, and all expenses for which invoices have been presented on or before the
Initial Credit Event Date.
(c) The Administrative Agent shall have received certified copies of the
resolutions of the Board of Directors of each of the Guarantor and the Borrower
approving this Agreement, and of all documents evidencing other necessary
corporate action and governmental and regulatory approvals with respect to this
Agreement.
(d) The Administrative Agent shall have received from each of the Borrower
and the Guarantor, to the extent generally available in the relevant
jurisdiction, a copy of a certificate or certificates of the Secretary of State
(or other appropriate public official) of the jurisdiction of its incorporation,
dated reasonably near the Initial Credit Event Date, (i) listing the charters of
the Borrower or the Guarantor, as the case may be, and each amendment thereto on
file in such office and certifying that such amendments are the only amendments
to the Borrower's or the Guarantor's charter, as the case may be, on file in
such office, and (ii) stating, in the case of the Borrower, that the Borrower is
authorized to transact business under the laws of the jurisdiction of its place
of incorporation, and, in the case of the Guarantor, that the Guarantor is duly
incorporated and in good standing under the laws of the jurisdiction of its
place of incorporation.
(e) (i) The Administrative Agent shall have received a certificate or
certificates of each of the Borrower and the Guarantor, signed on behalf of the
Borrower and the Guarantor respectively, by a the Secretary, an Assistant
Secretary or a Responsible Officer thereof, dated the Initial Credit Event Date,
certifying as to (A) the absence of any amendments to the charter of the
Borrower or the Guarantor, as the case may be, since the date of the
certificates referred to in paragraph (d) above, (B) a true and correct copy of
the bylaws of each of the Borrower or the Guarantor, as the case may be, as in
effect on the Initial Credit Event Date, (C) the absence of any proceeding for
the dissolution or liquidation of the Borrower or the Guarantor, as the case may
be, (D) the truth, in all material respects, of the representations and
warranties contained in the Credit Documents to which the Borrower or the
Guarantor is a party, as the case may be, as though made on and as of the
Initial Credit Event Date, and (E) the absence, as of the Initial Credit Event
Date, of any Default or Event of Default; and (ii) each of such certifications
shall be true.
(f) The Administrative Agent shall have received a certificate of the
Secretary or an Assistant Secretary of each of the Guarantor and the Borrower
certifying the names and true signatures of the officers of Guarantor or the
Borrower, as the case may be, authorized to sign, and signing, this Agreement
and the other Credit Documents to be delivered hereunder on or before the
Initial Credit Event Date.
36
(g) The Administrative Agent shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP,
counsel for the Guarantor and the Borrower, a favorable opinion, substantially
in the form of Exhibit B hereto and as to such other matters as any Lender
through the Administrative Agent may reasonably request.
(h) The Administrative Agent shall have received such evidence as it and
its counsel may reasonably require of the termination and payment in full of the
Terminating Facilities and the release by the holders thereof of any collateral
security securing such facilities.
SECTION 3.02. CONDITIONS PRECEDENT TO EACH EXTENSION OF CREDIT. The
obligation of each Lender to make any Extension of Credit and of the LC Bank to
issue any Letter of Credit (including the initial Extension of Credit but
excluding any conversion or continuation of any Loan) shall be subject to the
satisfaction (or waiver in accordance with Section 11.02) of each of the
following conditions:
(a) The representations and warranties of the Guarantor and the Borrower
set forth in this Agreement shall be true and correct in all material respects
on and as of the date of such Extension of Credit, except to the extent that
such representations and warranties are specifically limited to a prior date, in
which case such representations and warranties shall be true and correct in all
material respects on and as of such prior date.
(b) After giving effect to (A) such Extension of Credit, together with all
other Extensions of Credit to be made contemporaneously therewith, and (B) the
repayment of any Loans that are to be contemporaneously repaid at the time such
Loan is made, such Extension of Credit will not result in the sum of the then
Total Outstanding Principal exceeding the Aggregate Commitments.
(c) Such Extension of Credit will comply with all other applicable
requirements of Article II, including without limitation Sections 2.01, 2.02,
2.03 and 2.04, as applicable.
(d) At the time of and immediately after giving effect to such Borrowing,
no Default or Event of Default shall have occurred and be continuing.
(e) In the case of a Revolving Loan, the Administrative Agent shall have
timely received a Borrowing Request; and, in the case of a Letter of Credit
issuance, a Request for Issuance.
Each Extension of Credit and the acceptance by the Borrower of the benefits
thereof shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a), (b),
(c) and (d) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES. Each
of the Borrower and the Guarantors represents and warrants as follows:
(a) Each of the Borrower and the Guarantor is a corporation duly
organized, validly existing and, in the case of the Borrower, authorized to
transact business under the laws of the
37
State of its incorporation, and, in the case of the Guarantor, in good standing
under the laws of the State of its incorporation.
(b) The execution, delivery and performance by each of the Credit Parties
of the Credit Documents to which it is a party are within such Credit Party's
corporate powers, (i) have been duly authorized by all necessary corporate
action, (ii) do not contravene (A) such Credit Party's charter or by-laws, as
the case may be, or (B) any law, rule or regulation (including, without
limitation, the Public Utility Holding Company Act of 1935, as amended), or any
material Contractual Obligation or legal restriction, binding on or affecting
any Credit Party or any Material Subsidiary, as the case may be, and (iii) do
not require the creation of any Lien on the property of any Credit Party or any
Material Subsidiary under any Contractual Obligation binding on or affecting
such Credit Party or any Material Subsidiary.
(c) No authorization or approval or other action by, and no notice to or
filing with, any Governmental Authority or other Person is required for the due
execution, delivery and performance by any Credit Party of this Agreement or any
other Credit Document to which any of them is a party, except for such as have
been obtained or made and that are in full force and effect.
(d) Each Credit Document to which any Credit Party is a party is a legal,
valid and binding obligation of such Credit Party, enforceable against such
Credit Party in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
(e) The consolidated balance sheet of the Guarantor and its Subsidiaries
as at September 30, 2003, and the related statements of income and retained
earnings of the Guarantor and its Subsidiaries for the nine months then ended,
copies of which have been made available or furnished to each Lender, fairly
present (subject to year-end adjustments) the financial condition of the
Guarantor and its Subsidiaries as at such date and the results of the operations
of the Guarantor and its Subsidiaries for the period ended on such date, all in
accordance with generally accepted accounting principles consistently applied.
(f) Since December 31, 2002, there has been no material adverse change in
such condition or operations, or in the business, assets, operations, condition
(financial or otherwise) or prospects of any of the Credit Parties or of
Columbia.
(g) There is no pending or threatened action, proceeding or investigation
affecting such Credit Party before any court, governmental agency or other
Governmental Authority or arbitrator that (taking into account the exhaustion of
appeals) would have a Material Adverse Effect, or that (i) purports to affect
the legality, validity or enforceability of this Agreement, or (ii) seeks to
prohibit the ownership or operation, by any Credit Party or any of their
respective Material Subsidiaries, of all or a material portion of their
respective businesses or assets.
(h) The Guarantor and its Subsidiaries, taken as a whole, do not hold or
carry Margin Stock having an aggregate value in excess of 10% of the value of
their consolidated assets, and no part of the proceeds of any Loan hereunder
will be used to buy or carry any Margin Stock.
38
(i) No ERISA Event has occurred, or is reasonably expected to occur, with
respect to any Plan that could reasonably be expected to have a Material Adverse
Effect.
(j) Schedule B (Actuarial Information) to the 2002 Annual report (Form
5500 Series) for each Plan, copies of which have been filed with the Internal
Revenue Service and made available or furnished to each Lender, is complete and
accurate and fairly presents the funding status of such Plan, and since the date
of such Schedule B there has been no adverse change in such funding status which
may reasonably be expected to have a Material Adverse Effect.
(k) Neither the Guarantor nor any ERISA Affiliate has incurred or is
reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan
which may reasonably be expected to have a Material Adverse Effect.
(l) Neither the Guarantor nor any ERISA Affiliate has been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title VI of ERISA,
and no Multiemployer Plan is reasonably expected to be in reorganization or to
be terminated, within the meaning of Title IV of ERISA, in either such case,
that could reasonably be expected to have a Material Adverse Effect.
(m) No Credit Party is an "investment company", or a company "controlled"
by an "investment company", within the meaning of the Investment Company Act of
1940, as amended.
(n) The Guarantor is a "public utility holding company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended, registered in
compliance therewith.
(o) Each Credit Party has filed all tax returns (Federal, state and local)
required to be filed by it and has paid or caused to be paid all taxes due for
the periods covered thereby, including interest and penalties, except for any
such taxes, interest or penalties which are being contested in good faith and by
proper proceedings and in respect of which such Credit Party has set aside
adequate reserves for the payment thereof in accordance with GAAP.
(p) Each Credit Party and its Subsidiaries are and have been in compliance
with all laws (including, without limitation, the Public Utility Holding Company
Act of 1935, as amended, and all Environmental Laws), except to the extent that
any failure to be in compliance, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
(q) No Subsidiary of any Credit Party is party to, or otherwise bound by,
any agreement that prohibits such Subsidiary from making any payments, directly
or indirectly, to such Credit Party, by way of dividends, advances, repayment of
loans or advances, reimbursements of management or other intercompany charges,
expenses and accruals or other returns on investment, or any other agreement
that restricts the ability of such Subsidiary to make any payment, directly or
indirectly, to such Credit Party, other than prohibitions and restrictions
permitted to exist under Section 6.01(e).
(r) The information, exhibits and reports furnished by the Borrower or any
of its Subsidiaries to the Administrative Agent or to any Lender in connection
with the negotiation of,
39
or compliance with, the Credit Documents, taken as a whole, do not contain any
material misstatement of fact and do not omit to state a material fact or any
fact necessary to make the statements contained therein not misleading in light
of the circumstances made.
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any Lender shall have any
Commitment hereunder or any principal of any Loan, interest or fees payable
hereunder shall remain unpaid or any Letter of Credit shall remain outstanding,
each of the Credit Parties will, unless the Required Lenders shall otherwise
consent in writing:
(a) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its Subsidiaries
to comply, in all material respects with all applicable laws, rules, regulations
and orders (including, without limitation, any of the foregoing relating to
employee health and safety or public utilities and all Environmental Laws),
unless the failure to so comply could not reasonably be expected to have a
Material Adverse Effect.
(b) MAINTENANCE OF PROPERTIES, ETC. Maintain and preserve, and cause each
Material Subsidiary to maintain and preserve, all of its material properties
which are used in the conduct of its business in good working order and
condition, ordinary wear and tear excepted, if the failure to do so could
reasonably be expected to have a Material Adverse Effect.
(c) PAYMENT OF TAXES, ETC. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, (i)
all taxes, assessments and governmental charges or levies imposed upon it or
upon its property, and (ii) all legal claims which, if unpaid, might by law
become a lien upon its property; provided, however, that neither any Credit
Party nor any of its Subsidiaries shall be required to pay or discharge any such
tax, assessment, charge or claim which is being contested in good faith and by
proper proceedings and as to which appropriate reserves are being maintained.
(d) MAINTENANCE OF INSURANCE. Maintain, and cause each of its Subsidiaries
to maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually obtained by
companies engaged in similar businesses of comparable size and financial
strength and owning similar properties in the same general areas in which such
Credit Party or such Subsidiary operates, or, to the extent such Credit Party or
Subsidiary deems it reasonably prudent to do so, through its own program of
self-insurance.
40
(e) PRESERVATION OF CORPORATE EXISTENCE, ETC. Preserve and maintain, and
cause each Material Subsidiary to preserve and maintain, its corporate
existence, rights (charter and statutory) and franchises, except as otherwise
permitted under this Agreement; provided that that no such Person shall be
required to preserve any right or franchise with respect to which the Board of
Directors of such Person has determined that the preservation thereof is no
longer desirable in the conduct of the business of such Person and that the loss
thereof is not disadvantageous in any material respect to any Credit Party or
the Lenders.
(f) VISITATION RIGHTS. At any reasonable time and from time to time,
permit the Administrative Agent or any of the Lenders or any agents or
representatives thereof, on not less than five Business Days' notice, to examine
and make copies of and abstracts from the records and books of account of, and
visit the properties of, such Credit Party or any of its Subsidiaries, and to
discuss the affairs, finances and accounts of the Credit Parties and their
respective Subsidiaries with any of their respective officers and with their
independent certified public accountants; subject, however, in all cases to the
imposition of such conditions as the affected Credit Party or Subsidiary shall
deem necessary based on reasonable considerations of safety and security and
provided that so long as no Default or Event of Default shall have occurred and
be continuing, each Lender will be limited to one visit each year.
(g) KEEPING OF BOOKS. Keep, and cause each of its Subsidiaries to (i)
keep, proper books of record and account, in which full and correct entries
shall be made of all material financial transactions and the assets and business
of each of the Credit Parties and each of their respective Subsidiaries, and
(ii) maintain a system of accounting established and administered in accordance
with generally accepted accounting principles consistently applied.
(h) REPORTING REQUIREMENTS. Deliver to the Administrative Agent for
distribution to the Lenders:
(i) as soon as available and in any event within 60 days after the
end of each of the first three quarters of each fiscal year of the
Guarantor (or, if earlier, concurrently with the filing thereof with the
Securities and Exchange Commission or any national securities exchange in
accordance with applicable law or regulation), balance sheets of the
Guarantor and its Consolidated Subsidiaries in comparative form as of the
end of such quarter and statements of income and retained earnings of the
Guarantor and its Consolidated Subsidiaries for the period commencing at
the end of the previous fiscal year of the Guarantor and ending with the
end of such quarter, each prepared in accordance with generally accepted
accounting principles consistently applied, subject to normal year-end
audit adjustments, certified by the chief financial officer of the
Guarantor.
(ii) as soon as available and in any event within 90 days after the
end of each fiscal year of the Guarantor (or, if earlier, concurrently
with the filing thereof with the Securities and Exchange Commission or any
national securities exchange in accordance with applicable law or
regulation), a copy of the audit report for such year for the Guarantor
and its Consolidated Subsidiaries containing financial statements for such
year prepared in accordance with generally accepted accounting principles
consistently applied as reported on by independent certified public
accountants of recognized national
41
standing acceptable to the Required Lenders, which audit was conducted by
such accounting firm in accordance with generally accepted auditing
standards;
(iii) concurrently with the delivery of financial statements
pursuant to clauses (i) and (ii) above or the notice relating thereto
contemplated by the final sentence of this Section 5.01(h), a certificate
of a senior financial officer of each of the Guarantor and the Borrower
(A) to the effect that no Default or Event of Default has occurred and is
continuing (or, if any Default or Event of Default has occurred and is
continuing, describing the same in reasonable detail and describing the
action that the Guarantor or the Borrower, as the case may be, has taken
and proposes to take with respect thereto), and (B) in the case of the
certificate relating to the Guarantor, setting forth calculations, in
reasonable detail, establishing Borrower's compliance, as at the end of
such fiscal quarter, with the financial covenants contained in Article
VII;
(iv) as soon as possible and in any event within five days after
the occurrence of each Default or Event of Default continuing on the date
of such statement, a statement of the chief financial officer of the
Borrower setting forth details of such Event of Default or event and the
action which the Borrower has taken and proposes to take with respect
thereto;
(v) promptly after the sending or filing thereof, copies of all
reports which the Guarantor sends to its stockholders, and copies of all
reports and registration statements (other than registration statements
filed on Form S-8 and filings under the Public Utility Holding Company Act
of 1935, as amended) that the Guarantor, the Borrower or any Subsidiary of
the Guarantor or the Borrower, files with the Securities and Exchange
Commission;
(vi) promptly and in any event within 10 days after the Guarantor
knows or has reason to know that any material ERISA Event has occurred, a
statement of the chief financial officer of the Borrower describing such
ERISA Event and the action, if any, which the Guarantor or any affected
ERISA Affiliate proposes to take with respect thereto;
(vii) promptly and in any event within two Business Days after
receipt thereof by the Guarantor (or knowledge being obtained by the
Guarantor of the receipt thereof by any ERISA Affiliate), copies of each
notice from the PBGC stating its intention to terminate any Plan or to
have a trustee appointed to administer any Plan;
(viii) promptly and in any event within five Business Days after
receipt thereof by the Guarantor (or knowledge being obtained by the
Guarantor of the receipt thereof by any ERISA Affiliate) from the sponsor
of a Multiemployer Plan, a copy of each notice received by the Guarantor
or any ERISA Affiliate concerning (A) the imposition of material
Withdrawal Liability by a Multiemployer Plan, (B) the reorganization or
termination, within the meaning of Title IV of ERISA, of any Multiemployer
Plan or (C) the amount of liability incurred, or which may be incurred, by
the Guarantor or any ERISA Affiliate in connection with any event
described in clause (A) or (B) above;
42
(ix) promptly after the Guarantor has knowledge of the commencement
thereof, notice of any actions, suits and proceedings before any court or
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting the Guarantor or any
Material Subsidiary of the type described in Section 4.01(g);
(x) promptly after the Guarantor or the Borrower knows of any
change in the rating of the Index Debt by S&P or ▇▇▇▇▇'▇, a notice of such
changed rating; and
(xi) such other information respecting the condition or operations,
financial or otherwise, of the Guarantor or any of its Subsidiaries as any
Lender through the Administrative Agent may from time to time reasonably
request.
Notwithstanding the foregoing, the Credit Parties' obligations to deliver the
documents or information required under any of clauses (i), (ii) and (v) above
shall be deemed to be satisfied upon (x) the relevant documents or information
being publicly available on the Guarantor's website or other publicly available
electronic medium (such as ▇▇▇▇▇) within the time period required by such
clause, and (y) the delivery by the Guarantor or the Borrower of notice to the
Administrative Agent and the Lenders, within the time period required by such
clause, that such documents or information are so available.
(i) USE OF PROCEEDS. Use the proceeds of the Loans and the Letters of
Credit hereunder for working capital and other general corporate purposes,
including to provide liquidity support for commercial paper issued by the
Borrower.
(j) RATINGS. At all times maintain ratings by both ▇▇▇▇▇'▇ and S&P with
respect to the Index Debt.
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. NEGATIVE COVENANTS. So long as any Lender shall have any
Commitment hereunder or any principal of any Loan, interest or fees payable
hereunder shall remain unpaid or any Letter of Credit shall remain outstanding,
no Credit Party will, without the written consent of the Required Lenders:
(a) LIMITATION ON LIENS. Create or suffer to exist, or permit any of its
Subsidiaries (other than a Utility Subsidiary) to create or suffer to exist, any
lien, security interest, or other charge or encumbrance (collectively, "LIENS")
upon or with respect to any of its properties, whether now owned or hereafter
acquired, or collaterally assign for security purposes, or permit any of its
Subsidiaries (other than a Utility Subsidiary) to so assign any right to receive
income in each case to secure or provide for or guarantee the payment of Debt
for Borrowed Money of any Person, without in any such case effectively securing,
prior to or concurrently with the creation, issuance, assumption or guaranty of
any such Debt for Borrowed Money, the Obligations (together with, if the
Guarantor shall so determine, any other Debt for Borrowed Money of or guaranteed
by the Guarantor or any of its Subsidiaries ranking equally with the Loans and
then existing or thereafter created) equally and ratably with (or prior to) such
Debt for Borrowed
43
Money; provided, however, that the foregoing restrictions shall not apply to or
prevent the creation or existence of:
(i) (A) Liens on any property acquired, constructed or improved by
the Guarantor or any of its Subsidiaries (other than a Utility Subsidiary)
after the date of this Agreement that are created or assumed prior to,
contemporaneously with, or within 180 days after, such acquisition or
completion of such construction or improvement, to secure or provide for
the payment of all or any part of the purchase price of such property or
the cost of such construction or improvement; or (B) in addition to Liens
contemplated by clauses (ii) and (iii) below, Liens on any property
existing at the time of acquisition thereof, provided that the Liens shall
not apply to any property theretofore owned by the Guarantor or any such
Subsidiary other than, in the case of any such construction or
improvement, (1) unimproved real property on which the property so
constructed or the improvement is located, (2) other property (or
improvements thereon) that is an improvement to or is acquired or
constructed for specific use with such acquired or constructed property
(or improvement thereof), and (3) any rights and interests (A) under any
agreements or other documents relating to, or (B) appurtenant to, the
property being so constructed or improved or such other property;
(ii) existing Liens on any property or indebtedness of a
corporation that is merged with or into or consolidated with any Credit
Party or any of its Subsidiaries; provided that such Lien was not created
in contemplation of such merger or consolidation;
(iii) Liens on any property or indebtedness of a corporation
existing at the time such corporation becomes a Subsidiary of any Credit
Party; provided that such Lien was not created in contemplation of such
occurrence;
(iv) Liens to secure Debt for Borrowed Money of a Subsidiary of a
Credit Party to a Credit Party or to another Subsidiary of the Guarantor;
(v) Liens in favor of the United States of America, any State, any
foreign country or any department, agency or instrumentality or political
subdivision of any such jurisdiction, to secure partial, progress, advance
or other payments pursuant to any contract or statute or to secure any
Debt for Borrowed Money incurred for the purpose of financing all or any
part of the purchase price of the cost of constructing or improving the
property subject to such Liens, including, without limitation, Liens to
secure Debt for Borrowed Money of the pollution control or industrial
revenue bond type;
(vi) Liens on any property (including any natural gas, oil or other
mineral property) to secure all or part of the cost of exploration,
drilling or development thereof or to secure Debt for Borrowed Money
incurred to provide funds for any such purpose;
(vii) Liens existing on the date of this Agreement;
(viii) Liens for the sole purposes of extending, renewing or
replacing in whole or in part Debt for Borrowed Money secured by any Lien
referred to in the foregoing clauses (i) through (vii), inclusive, or this
clause (viii); provided, however, that the
44
principal amount of Debt for Borrowed Money secured thereby shall not
exceed the principal amount of Debt for Borrowed Money so secured at the
time of such extension, renewal or replacement (which, for purposes of
this limitation as it applies to a synthetic lease, shall be deemed to be
(x) the lessor's original cost of the property subject to such lease at
the time of extension, renewal or replacement, less (y) the aggregate
amount of all prior payments under such lease allocated pursuant to the
terms of such lease to reduce the principal amount of the lessor's
investment, and borrowings by the lessor, made to fund the original cost
of the property), and that such extension, renewal or replacement shall be
limited to all or a part of the property or indebtedness which secured the
Lien so extended, renewed or replaced (plus improvements on such
property);
(ix) Liens on any property or assets of a Project Financing
Subsidiary, or on any Capital Stock in a Project Financing Subsidiary, in
either such case, that secure only a Project Financing or a Contingent
Guaranty that supports a Project Financing; or
(x) Any Lien, other than a Lien described in any of the foregoing
clauses (i) through (ix), inclusive, to the extent that it secures Debt
for Borrowed Money, or guaranties thereof, the outstanding principal
balance of which at the time of creation of such Lien, when added to the
aggregate principal balance of all Debt for Borrowed Money secured by
Liens incurred under this clause (x) then outstanding, does not exceed 5%
of Consolidated Net Tangible Assets.
If at any time any Credit Party or any of its Subsidiaries shall create,
issue, assume or guaranty any Debt for Borrowed Money secured by any Lien and
the first paragraph of this Section 6.01(a) requires that the Loans be secured
equally and ratably with such Debt for Borrowed Money, the Borrower shall
promptly deliver to the Administrative Agent and each Lender:
(1) a certificate of a duly authorized officer of the Borrower
stating that the covenant contained in the first paragraph of this Section
6.01(a) has been complied with; and
(2) an opinion of counsel acceptable to the Required Lenders to
the effect that such covenant has been complied with and that all
documents executed by any Credit Party or any of its Subsidiaries in the
performance of such covenant comply with the requirements of such
covenant.
(b) MERGERS, ETC. Merge or consolidate with or into, or, except in a
transaction permitted under paragraph (c) of this Section, convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to any Person, or permit any of its Subsidiaries to do so,
except that:
(i) any Subsidiary of the Guarantor may merge or consolidate with
or transfer assets to or acquire assets from any other Subsidiary of the
Guarantor; and
(ii) any Subsidiary of the Guarantor may merge into the Guarantor
or the Borrower or transfer assets to the Borrower; and
45
(iii) the Guarantor or any Subsidiary of the Guarantor may merge, or
consolidate with or transfer all or substantially all of its assets to any
other Person; provided that in each case, immediately after giving effect
thereto, (A) no Event of Default shall have occurred and be continuing
(determined, for purposes of compliance with Section 7.01 after giving
effect to such transaction, on a pro forma basis for the period of four
consecutive fiscal quarters of the Guarantor then most recently ended, as
if such transaction had occurred on the first day of such period, and, for
purposes of compliance with Section 7.02 after giving effect to such
transaction, on a pro forma basis as if such transaction had occurred on
the last day of the Guarantor's fiscal quarter then most recently ended);
(B) in the case of any merger, consolidation or transfer of assets to
which the Borrower is a party (other than a merger, consolidation or
transfer of assets between the Borrower and the Guarantor), the Borrower
shall be the continuing or surviving corporation; (C) in the case of any
merger, consolidation or transfer of assets between the Borrower and the
Guarantor, the Guarantor shall have assumed all of the obligations of the
Borrower under and in respect of the Credit Documents by written
instrument satisfactory to the Administrative Agent and its counsel in
their reasonable discretion, accompanied by such opinions of counsel and
other supporting documents as they may reasonably require; (D) in the case
of any merger, consolidation, or transfer of assets to which NIPSCO or
Columbia is a party (other than a merger, consolidation or transfer of
assets between such Person and a Credit Party), NIPSCO or Columbia, as the
case may be, shall be the continuing or surviving corporation and shall be
a Wholly-Owned Subsidiary of the Guarantor; (E) in the case of any merger,
consolidation or transfer of assets to which the Guarantor is a party, the
Guarantor shall be the continuing or surviving corporation; and (F) the
Index Debt shall be rated at least BBB- by S&P and at least Baa3 by
▇▇▇▇▇'▇.
(c) SALES, ETC. OF ASSETS. Sell, lease, transfer or otherwise dispose of,
or permit any of their respective Subsidiaries to sell, lease, transfer or
otherwise dispose of (other than in connection with a transaction authorized by
paragraph (b) of this Section) any substantial part of its assets; provided that
the foregoing shall not prohibit any such sale, conveyance, lease, transfer or
other disposition that (i) constitutes realization on a Lien permitted to exist
under Section 6.01(a); or (ii) (A) (1) is for a price not materially less than
the fair market value of such assets, (2) would not materially impair the
ability of any Credit Party to perform its obligations under this Agreement and
(3) together with all other such sales, conveyances, leases, transfers and other
dispositions, would have no Material Adverse Effect, or (B) would not result in
the sale, lease, transfer or other disposition, in the aggregate, of more than
10% of the consolidated total assets of the Guarantor and its Subsidiaries,
determined in accordance with GAAP, on September 30, 2003.
(d) COMPLIANCE WITH ERISA. (i) Terminate, or permit any ERISA Affiliate to
terminate, any Plan so as to result in a Material Adverse Effect or (ii) permit
to exist any occurrence of any Reportable Event (as defined in Title IV of
ERISA), or any other event or condition, that presents a material (in the
reasonable opinion of the Required Lenders) risk of such a termination by the
PBGC of any Plan, if such termination could reasonably be expected to have a
Material Adverse Effect.
46
(e) CERTAIN RESTRICTIONS. Permit any of its Subsidiaries (other than, in
the case of the Guarantor, the Borrower) to enter into or permit to exist any
agreement that by its terms prohibits such Subsidiary from making any payments,
directly or indirectly, to such Credit Party by way of dividends, advances,
repayment of loans or advances, reimbursements of management or other
intercompany charges, expenses and accruals or other returns on investment, or
any other agreement that restricts the ability of such Subsidiary to make any
payment, directly or indirectly, to such Credit Party; provided that the
foregoing shall not apply to prohibitions and restrictions imposed by this
Agreement or (i) (A) imposed under an agreement in existence on the date of this
Agreement, and (B) described on Schedule 6.01(e), (ii) existing with respect to
a Subsidiary on the date it becomes a Subsidiary that are not created in
contemplation thereof (but shall apply to any extension or renewal of, or any
amendment or modification expanding the scope of, any such prohibition or
restriction), (iii) contained in agreements relating to the sale of a Subsidiary
pending such sale, provided that such prohibitions or restrictions apply only to
the Subsidiary that is to be sold and such sale is permitted hereunder, (iv)
imposed on a Project Financing Subsidiary in connection with a Project
Financing, or (v) that could not reasonably be expected to have a Material
Adverse Effect.
ARTICLE VII
FINANCIAL COVENANTS
So long as any Lender shall have any Commitment hereunder or any principal
of any Loan, interest or fees payable hereunder shall remain unpaid or any
Letter of Credit shall remain outstanding, the Guarantor shall:
SECTION 7.01. INTEREST COVERAGE RATIO. Maintain an Interest Coverage Ratio
of not less than 1.75 to 1.00 for each period of four consecutive fiscal
quarters, commencing with the four fiscal quarters ended March 31, 2004.
SECTION 7.02. DEBT TO CAPITALIZATION RATIO. Maintain a Debt to
Capitalization Ratio of not more than 0.70:1:00.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01. EVENTS OF DEFAULT. If any of the following events ("EVENTS
OF DEFAULT") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan or
Unreimbursed LC Disbursement when the same becomes due and payable or shall fail
to pay any interest, fees or other amounts hereunder within three days after
when the same becomes due and payable; or
(b) Any representation or warranty made by any Credit Party herein or by
any Credit Party (or any of its officers) in connection with this Agreement
shall prove to have been incorrect in any material respect when made; or
(c) Any Credit Party shall fail to perform or observe any term, covenant
or agreement contained in Section 5.01(e), 5.01(f), 5.01(h), 5.01(i), 6.01 or
Article VII; or
47
(d) Any Credit Party shall fail to perform or observe any term, covenant
or agreement contained in this Agreement on its part to be performed or observed
(other than one identified in paragraph (a), (b) or (c) above) if the failure to
perform or observe such other term, covenant or agreement shall remain
unremedied for thirty days after written notice thereof shall have been given to
the Borrower by the Administrative Agent or any Lender; or
(e) The Guarantor, the Borrower or any of their respective Subsidiaries
shall fail to pay any principal of or premium or interest on any Indebtedness
(excluding Non-Recourse Debt) which is outstanding in a principal amount of at
least $50,000,000 in the aggregate (but excluding the Loans) of the Guarantor,
the Borrower or such Subsidiary, as the case may be, when the same becomes due
and payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Indebtedness; or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Indebtedness and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the scheduled maturity of such Indebtedness; or any
such Indebtedness shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment), prior to the
stated maturity thereof; or an "Event of Default" shall occur and be continuing
under (and as defined in) the 364-Day Credit Agreement; or
(f) Any Credit Party shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts generally,
or shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against any Credit Party seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its property and, in the case of any such
proceeding instituted against any Credit Party (but not instituted by any Credit
Party), either such proceeding shall remain undismissed or unstayed for a period
of 60 days, or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, any Credit Party or
for any substantial part of its property) shall occur; or any Credit Party shall
take any corporate action to authorize any of the actions set forth above in
this paragraph (f); or
(g) One or more Subsidiaries of the Guarantor (other than any Credit
Party) in which the aggregate sum of (i) the amounts invested by the Guarantor
and its other Subsidiaries in the aggregate, by way of purchases of Capital
Stock, Capital Leases, loans or otherwise, and (ii) the amount of recourse,
whether contractual or as a matter of law (but excluding Non-Recourse Debt),
available to creditors of such Subsidiary or Subsidiaries against the Guarantor
or any of its other Subsidiaries, is $100,000,000 or more (collectively,
"SUBSTANTIAL SUBSIDIARIES") shall generally not pay their respective debts as
such debts become due, or shall admit in writing their respective inability to
pay their debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against Substantial
Subsidiaries seeking to adjudicate them bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of them or their
48
respective debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee, custodian or other similar official
for them or for any substantial part of their respective property and, in the
case of any such proceeding instituted against Substantial Subsidiaries (but not
instituted by any Subsidiary of the Guarantor), either such proceeding shall
remain undismissed or unstayed for a period of 60 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of an order
for relief against, or the appointment of a receiver, trustee, custodian or
other similar official for, the Substantial Subsidiaries or for any substantial
part of their respective property) shall occur; or Substantial Subsidiaries
shall take any corporate action to authorize any of the actions set forth above
in this paragraph (g); or
(h) Any judgment or order for the payment of money in excess of
$50,000,000 shall be rendered against the Borrower, the Guarantor or any of its
other Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall be any
period of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(i) Any ERISA Event shall have occurred with respect to a Plan and, 30
days after notice thereof shall have been given to the Guarantor or the Borrower
by the Administrative Agent, (i) such ERISA Event shall still exist and (ii) the
sum (determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other Plans with
respect to which an ERISA Event shall have occurred and then exist (or, in the
case of a Plan with respect to which an ERISA Event described in clauses (c)
through (f) of the definition of ERISA Event shall have occurred and then exist,
the liability related thereto) is equal to or greater than $10,000,000 (when
aggregated with paragraphs (j), (k) and (l) of this Section), and a Material
Adverse Effect could reasonably be expected to occur as a result thereof; or
(j) The Guarantor or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to
such Multiemployer Plan in an amount which, when aggregated with all other
amounts required to be paid to Multiemployer Plans by the Guarantor and its
ERISA Affiliates as Withdrawal Liability (determined as of the date of such
notification), exceeds $10,000,000 or requires payments exceeding $10,000,000
per annum (in either case, when aggregated with paragraphs (i), (k) and (l) of
this Section), and a Material Adverse Effect could reasonably be expected to
occur as a result thereof; or
(k) The Guarantor or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
if as a result of such reorganization or termination the aggregate annual
contributions of the Guarantor and its ERISA Affiliates to all Multiemployer
Plans which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan year of each such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an amount
exceeding $10,000,000 (when aggregated with paragraphs (i), (j) and (l) of this
Section), and a Material Adverse Effect could reasonably be expected to occur as
a result thereof; or
49
(l) The Guarantor or any ERISA Affiliate shall have committed a failure
described in Section 302(f)(1) of ERISA and the amount determined under Section
302(f)(3) of ERISA is equal to or greater than $10,000,000 (when aggregated with
paragraphs (i), (j) and (k) of this Section), and a Material Adverse Effect
could reasonably be expected to occur as a result thereof; or
(m) Any provision of the Credit Documents shall be held by a court of
competent jurisdiction to be invalid or unenforceable against any Credit Party
purported to be bound thereby, or any Credit Party shall so assert in writing;
or
(n) Any Change of Control shall occur;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitment of each Lender, the obligation of the Swingline Lender to
make or maintain Swingline Loans and the obligation of the LC Bank to issue or
maintain Letters of Credit hereunder to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the request, or may with the consent, of
the Required Lenders, by notice to the Borrower, declare all amounts payable
under this Agreement to be forthwith due and payable, whereupon all such amounts
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by the Borrower; provided that in the event of an actual or deemed entry of an
order for relief with respect to any Credit Party under the Federal Bankruptcy
Code, (1) the Commitment of each Lender, the obligation of the Swingline Lender
to make or maintain Swingline Loans and the obligation of the LC Bank to issue
or maintain Letters of Credit hereunder shall automatically be terminated and
(2) all such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
Notwithstanding anything to the contrary contained herein, no notice given
or declaration made by the Administrative Agent pursuant to this Section 8.01
shall affect (i) the obligation of the LC Bank to make any payment under any
outstanding Letter of Credit in accordance with the terms of such Letter of
Credit, (ii) the obligations of each Lender in respect of each such Letter of
Credit or (iii) the obligation of each Lender to purchase its pro rata share of
any Swingline Loans; provided, however, that upon the occurrence and during the
continuance of any Event of Default, the Administrative Agent shall at the
request, or may with the consent, of the Required Lenders, upon notice to the
Borrower, require the Borrower to deposit with the Administrative Agent an
amount in the cash account (the "CASH ACCOUNT") described below equal to the
then current LC Outstandings. Such Cash Account shall at all times be free and
clear of all rights or claims of third parties. The Cash Account shall be
maintained with the Administrative Agent in the name of, and under the sole
dominion and control of, the Administrative Agent, and amounts deposited in the
Cash Account shall bear interest at a rate equal to the rate generally offered
by Barclays for deposits equal to the amount deposited by the Borrower in the
Cash Account pursuant to this Section 8.01, for a term to be agreed to between
the Borrower and the Administrative Agent. If any drawings then outstanding or
thereafter made are not reimbursed in full immediately upon demand or, in the
case of subsequent drawings, upon being made, then, in any such event, the
Administrative Agent may apply the amounts then on deposit in the Cash Account,
in such priority as the Administrative Agent shall elect, toward the payment in
full of
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any or all of the Borrower's obligations hereunder as and when such obligations
shall become due and payable. Upon payment in full, after the termination of the
Letters of Credit, of all such obligations, the Administrative Agent will repay
to the Borrower any cash then on deposit in the Cash Account.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.01. THE ADMINISTRATIVE AGENT.
(a) Each of the Lenders and the LC Bank hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
(b) The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
bank and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the any Credit Party or any of such Credit
Party's Subsidiaries or other Affiliates thereof as if it were not the
Administrative Agent hereunder.
(c) The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (i) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (ii) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders, and (iii) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower, the Guarantor or any of its other Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or, if applicable, all of the Lenders) or in the absence
of its own gross negligence or willful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until written
notice thereof is given to the Administrative Agent by the Borrower or a Lender,
and the Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (1) any statement, warranty or representation made in
or in connection with this Agreement, (2) the contents of any certificate,
report or other document delivered hereunder or in connection herewith, (3) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (4) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreement, instrument or document, or
(5) the satisfaction of any condition set forth in Article III or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent and the conformity thereof to such express
requirement.
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(d) The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for a Credit Party) independent accountants and other experts
selected by it and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
(e) The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
(f) Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, with the consent of the
Borrower (which consent shall not unreasonably be withheld), to appoint a
successor. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New York,
or an Affiliate of any such bank, in any event having total assets in excess of
$500,000,000 and who shall serve until such time, if any, as an Agent shall have
been appointed as provided above. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 11.03 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
(g) Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
52
(h) No Lender identified on the signature pages of this Agreement as a
"Lead Arranger", "Co-Documentation Agent" or "Syndication Agent", or that is
given any other title hereunder other than "LC Bank", "Swingline Lender" or
"Administrative Agent", shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the generality of the foregoing, no Lender so
identified as a "Lead Arranger", "Co-Documentation Agent" or "Syndication Agent"
or that is given any other title hereunder, shall have, or be deemed to have,
any fiduciary relationship with any Lender. Each Lender acknowledges that it has
not relied, and will not rely, on the Lenders so identified in deciding to enter
into this Agreement or in taking or not taking action hereunder.
ARTICLE X
GUARANTY
SECTION 10.01. THE GUARANTY.
(a) The Guarantor, as primary obligor and not merely as a surety, hereby
irrevocably, absolutely and unconditionally guarantees to the Administrative
Agent and the Lenders and each of their respective successors, endorsees,
transferees and assigns (each a "BENEFICIARY" and collectively, the
"BENEFICIARIES") the prompt and complete payment by the Borrower, as and when
due and payable, of the Obligations, in accordance with the terms of the Credit
Documents. The provisions of this Article X are sometimes referred to
hereinafter as the "GUARANTY".
(b) The Guarantor hereby guarantees that the Obligations will be paid
strictly in accordance with the terms of the Credit Documents, regardless of any
law now or hereafter in effect in any jurisdiction affecting any such terms or
the rights of the Beneficiaries with respect thereto. The obligations and
liabilities of the Guarantor under this Guaranty shall be absolute and
unconditional irrespective of: (i) any lack of validity or enforceability of any
of the Obligations or any Credit Document, or any delay, failure or omission to
enforce or agreement not to enforce, or the stay or enjoining, by order of
court, by operation of law or otherwise, of the exercise of any right with
respect to the foregoing (including, in each case, without limitation, as a
result of the insolvency, bankruptcy or reorganization of any Beneficiary, the
Borrower or any other Person); (ii) any change in the time, manner or place of
payment of, or in any other term in respect of, all or any of the Obligations,
or any other amendment or waiver of or consent to any departure from the Credit
Documents or any agreement or instrument relating thereto; (iii) any exchange or
release of, or non-perfection of any Lien on or in any collateral, or any
release, amendment or waiver of, or consent to any departure from, any other
guaranty of, or agreement granting security for, all or any of the Obligations;
(iv) any claim, set-off, counterclaim, defense or other rights that such
Guarantor may have at any time and from time to time against any Beneficiary or
any other Person, whether in connection with this transaction or any unrelated
transaction; or (v) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Borrower or any other guarantor or
surety in respect of the Obligations or such Guarantor in respect hereof.
(c) The Guaranty provided for herein (i) is a guaranty of payment and not
of collection; (ii) is a continuing guaranty and shall remain in full force and
effect until the Commitments and Letters of Credit have been terminated and the
Obligations have been paid in full in cash; and (iii) shall continue to be
effective or shall be reinstated, as the case may be, if at any time any
53
payment, or any part thereof, of any of the Obligations is rescinded or must
otherwise be returned by any Beneficiary upon or as a result of the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Borrower or
otherwise, all as though such payment had not been made.
(d) The obligations and liabilities of the Guarantor hereunder shall not
be conditioned or contingent upon the pursuit by any Beneficiary or any other
Person at any time of any right or remedy against the Borrower or any other
Person that may be or become liable in respect of all or any part of the
Obligations or against any collateral security or guaranty therefor or right of
setoff with respect thereto.
(e) The Guarantor hereby consents that, without the necessity of any
reservation of rights against such Guarantor and without notice to or further
assent by such Guarantor, any demand for payment of any of the Obligations made
by any Beneficiary may be rescinded by such Beneficiary and any of the
Obligations continued after such rescission.
(f) The Guarantor's obligations under this Guaranty shall be
unconditional, irrespective of any lack of capacity of the Borrower or any lack
of validity or enforceability of any other provision of this Agreement or any
other Credit Document, and this Guaranty shall not be affected in any way by any
variation, extension, waiver, compromise or release of any or all of the
Obligations or of any security or guaranty from time to time therefor.
(g) The obligations of the Guarantor under this Guaranty shall not be
reduced, limited, impaired, discharged, deferred, suspended or terminated by any
proceeding or action, voluntary or involuntary, involving the bankruptcy,
insolvency, receivership, reorganization, marshalling of assets, assignment for
the benefit of creditors, composition with creditors, readjustment, liquidation
or arrangement of the Borrower or any similar proceedings or actions, or by any
defense the Borrower may have by reason of the order, decree or decision of any
court or administrative body resulting from any such proceeding or action.
Without limiting the generality of the foregoing, the Guarantor's liability
shall extend to all amounts and obligations that constitute the Obligations and
would be owed by the Borrower, but for the fact that they are unenforceable or
not allowable due to the existence of any such proceeding or action.
SECTION 10.02. WAIVERS.
(a) The Guarantor hereby unconditionally waives: (i) promptness and
diligence; (ii) notice of or proof of reliance by the Administrative Agent or
the Lenders upon this Guaranty or acceptance of this Guaranty; (iii) notice of
the incurrence of any Obligation by the Borrower or the renewal, extension or
accrual of any Obligation or of any circumstances affecting the Borrower's
financial condition or ability to perform the Obligations; (iv) notice of any
actions taken by the Beneficiaries or the Borrower or any other Person under any
Credit Document or any other agreement or instrument relating thereto; (v) all
other notices, demands and protests, and all other formalities of every kind in
connection with the enforcement of the Obligations, of the obligations of the
Guarantor hereunder or under any other Credit Document, the omission of or delay
in which, but for the provisions of this Section 10 might constitute grounds for
relieving the Guarantor of its obligations hereunder; (vi) any requirement that
the Beneficiaries protect, secure, perfect or insure any Lien or any property
subject thereto, or exhaust any right or take
54
any action against the Borrower or any other Person or any collateral; and (vii)
each other circumstance, other than payment of the Obligations in full, that
might otherwise result in a discharge or exoneration of, or constitute a defense
to, the Guarantor's obligations hereunder.
(b) No failure on the part of any Beneficiary to exercise, and no delay in
exercising, any right, remedy, power or privilege hereunder or under any Credit
Document or any other agreement or instrument relating thereto shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder or under any Credit Document or any other agreement
or instrument relating thereto preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. This Guaranty is in
addition to and not in limitation of any other rights, remedies, powers and
privileges the Beneficiaries may have by virtue of any other instrument or
agreement heretofore, contemporaneously herewith or hereafter executed by the
Guarantor or any other Person or by applicable law or otherwise. All rights,
remedies, powers and privileges of the Beneficiaries shall be cumulative and may
be exercised singly or concurrently. The rights, remedies, powers and privileges
of the Beneficiaries under this Guaranty against the Guarantor are not
conditional or contingent on any attempt by the Beneficiaries to exercise any of
their rights, remedies, powers or privileges against any other guarantor or
surety or under the Credit Documents or any other agreement or instrument
relating thereto against the Borrower or against any other Person.
(c) The Guarantor hereby acknowledges and agrees that, until the
Commitments have been terminated and all of the Obligations have been paid in
full in cash, under no circumstances shall it be entitled to be subrogated to
any rights of any Beneficiary in respect of the Obligations performed by it
hereunder or otherwise, and the Guarantor hereby expressly and irrevocably
waives, until the Commitments have been terminated and all of the Obligations
have been paid in full in cash, (i) each and every such right of subrogation and
any claims, reimbursements, right or right of action relating thereto (howsoever
arising), and (ii) each and every right to contribution, indemnification,
set-off or reimbursement, whether from the Borrower or any other Person now or
hereafter primarily or secondarily liable for any of the Obligations, and
whether arising by contract or operation of law or otherwise by reason of the
Guarantor's execution, delivery or performance of this Guaranty.
(d) The Guarantor represents and warrants that it has established adequate
means of keeping itself informed of the Borrower's financial condition and of
other circumstances affecting the Borrower's ability to perform the Obligations,
and agrees that neither the Administrative Agent nor any Lender shall have any
obligation to provide to the Guarantor any information it may have, or hereafter
receive, in respect of the Borrower.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.01. NOTICES. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to any Credit Party, to it at:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇;
with a copy to such Credit Party at:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Director Corporate Finance and Treasury
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇;
(b) if to the Administrative Agent or the LC Bank, to Barclays Bank PLC
at:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Sydney ▇. ▇▇▇▇▇▇, Power and Utilities Group
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to such party at:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇, Customer Service Unit
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to any Lender or the Swingline Lender, to it at its address (or
telecopy number) set forth in its Administrative Questionnaire.
Any Party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.
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SECTION 11.02. WAIVERS; AMENDMENTS.
(a) No failure or delay by the Administrative Agent, the LC Bank or any
Lender in exercising any right or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the LC Bank
and the Lenders hereunder are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this
Agreement or consent to any departure by any Credit Party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality of
the foregoing, no Extension of Credit shall be construed as a waiver of any
Default, regardless of whether the Administrative Agent, the LC Bank or any
Lender may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrower, the Guarantor and the Required Lenders or by the Borrower,
the Guarantor and the Administrative Agent with the consent of the Required
Lenders; provided that no such agreement shall (i) increase the Commitment of
any Lender without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or any Unreimbursed LC Disbursement or reduce the rate of
interest thereon, or reduce any fees or other amounts payable hereunder, without
the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan, any Unreimbursed
LC Disbursement or any interest thereon, or any fees or other amounts payable
hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender affected thereby, (iv) change Section 2.18(b) or (c) in a
manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, (v) release the Guarantor from its
obligations under the Guaranty without the written consent of each Lender, (vi)
waive any of the conditions precedent to the Initial Extension of Credit set
forth in Section 3.01 without the written consent of each Lender, (vii) extend
the expiry date of any Letter of Credit to a date that is later than the
Termination Date without the written consent of each Lender, or (viii) change
any of the provisions of this Section or the definition of "Required Lenders" or
any other provision hereof specifying the number or percentage of Lenders
required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender; provided, further, that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent or the LC Bank
hereunder without the prior written consent of the Administrative Agent or the
LC Bank, as the case may be.
SECTION 11.03. EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent, in connection with the initial syndication of the credit facilities
provided for herein, the preparation and administration of this Agreement or any
57
amendments, modifications or waivers of the provisions hereof (whether or not
the transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the LC Bank, including the
reasonable fees, charges and disbursements of counsel for the LC Bank, in
connection with the execution, delivery, administration, modification and
amendment of any Letters of Credit to be issued by it hereunder, and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, the LC Bank or any
Lender, including the fees, charges and disbursements of any counsel for the
Administrative Agent, the LC Bank or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made
and Letters of Credit issued hereunder, including in connection with any
workout, restructuring or negotiations in respect thereof.
(b) The Borrower shall indemnify the Administrative Agent, the Syndication
Agent, each Co-Documentation Agent, the LC Bank, each Lender and the Swingline
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "INDEMNITEE") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including
the fees, charges and disbursements of any counsel for any Indemnitee, incurred
by or asserted against any Indemnitee arising out of, in connection with, or as
a result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any
other transaction contemplated hereby, (ii) any Loan or Letter of Credit or the
use of the proceeds therefrom, (iii) any actual or alleged presence or release
of Hazardous Materials on or from any property now, in the past or hereafter
owned or operated by the Borrower, the Guarantor or any of its other
Subsidiaries, or any Environmental Liability related in any way to the Borrower,
the Guarantor or any of its other Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required to be
paid by it to the Administrative Agent or the LC Bank under paragraph (a) or (b)
of this Section, each Lender severally agrees to pay to the Administrative Agent
or the LC Bank such Lender's Applicable Percentage (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent or the LC Bank in its capacity as
such.
(d) To the extent permitted by applicable law, each party hereto shall not
assert, and hereby waives, any claim against each other party, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions or any Loan or the use of the proceeds thereof.
58
(e) All amounts due under this Section shall be payable not later than 20
days after written demand therefor.
SECTION 11.04. SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby; provided that, except to the extent permitted pursuant to
Section 6.01(b)(iii)(C), no Credit Party may assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of each
Lender and the LC Bank (and any attempted assignment or transfer by a Credit
Party without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Related Parties of each of
the Administrative Agent and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it); provided that (i) except in
the case of an assignment to a Lender or an Affiliate of a Lender, each of the
Administrative Agent, the LC Bank and, so long as no Event of Default is
continuing, the Borrower must give its prior written consent to such assignment
(which consent, in the case of the Administrative Agent and the Borrower, shall
not unreasonably be withheld and, in the case of the LC Bank, may be given or
withheld in the sole discretion of the LC Bank), (ii) except in the case of an
assignment to a Lender or an Affiliate of a Lender or an assignment of the
entire remaining amount of the assigning Lender's Commitment, the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000 unless
each of the Administrative Agent and, so long as no Event of Default shall be
continuing, the Borrower otherwise consent, (iii) each partial assignment shall
be made as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement and the 364-Day Credit Agreement,
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500, and (v) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Upon acceptance and recording pursuant to paragraph (d) of this
Section, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.15,
2.16, 2.17 and 11.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
59
(c) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices in The City of New York a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "REGISTER"). The entries in the Register shall be
conclusive (absent manifest error), and the Borrower, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "PARTICIPANT") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrower, the Guarantors and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 11.02(b) that affects such
Participant. Subject to paragraph (f) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and
2.17 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.15 or 2.17 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.17 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.17(e) as
though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to a Federal Reserve Bank, and
this Section shall not apply to
60
any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such assignee for such Lender as a
party hereto.
(h) Anything herein to the contrary notwithstanding, each Lender (the
"GRANTING LENDER") shall have the right, without the prior consent of the
Borrower, to grant to a special purpose funding vehicle (the "SPFV") that is
utilized by such Granting Lender, identified as such in writing from time to
time by the Granting Lender to the Administrative Agent and the Borrower, the
option to provide all or any part of any Loan that such Granting Lender would
otherwise be obligated to make hereunder, provided that (i) nothing herein shall
constitute a commitment to make any Loan by any SPFV or shall relieve its
Granting Lender of any obligation of such Granting Lender hereunder or under any
other Credit Document, except to the extent that such SPFV actually funds all or
part of any Loan such Granting Lender is obligated to make hereunder, (ii) if an
SPFV elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, such Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof, (iii) the Granting Lender hereby indemnifies and
holds the Administrative Agent harmless from and against any liability, loss,
cost or expense (including for or in respect of Taxes) arising out of such
identification and grant or any transaction contemplated thereby, and (iv) the
provisions of this paragraph (h) shall not impose any increased cost or
liability on any Credit Party. The making of a Loan by an SPFV hereunder shall
utilize the Commitment of its Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. Each party hereto agrees that no
SPFV shall be liable for any payment under this Agreement or any other Credit
Document for which a Lender would otherwise be liable, for so long as, and to
the extent that, its Granting Lender makes such payment. As to any Loans or
portions of Loans made by it, each SPFV shall have all the rights that a Lender
making such Loans or such portions of Loans would have had under this Agreement
and otherwise; provided that (1) its voting rights under this Agreement shall be
exercised solely by its Granting Lender and (2) its Granting Lender shall remain
solely responsible to the other parties hereto for the performance of such
SPFV's obligations under this Agreement, including its obligations in respect of
the Loans or portions of Loans made by it. No additional promissory notes, if
any, shall be required to evidence the Loans or portions of Loans made by a
SPFV; and the Granting Lender shall be deemed to hold its promissory note, if
any, as agent for its SPFV to the extent of the Loans or portions of Loans
funded by such SPFV. Each Granting Lender shall act as administrative agent for
its SPFV and give and receive notices and other communications on its behalf.
Any payments for the account of any SPFV shall be paid to its Granting Lender as
administrative agent for such SPFV, and neither any Credit Party nor the
Administrative Agent shall be responsible for any Granting Lender's application
of such payments. In furtherance of the foregoing, each party hereto hereby
agrees that, until the date that is one year and one day after the payment in
full of all outstanding senior Debt of any SPFV, it shall not institute against,
or join any other Person in instituting against, such SPFV any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings (or any
similar proceedings) under the laws of the United States of America or any State
thereof. In addition, notwithstanding anything to the contrary contained in this
paragraph (h), an SPFV may (1) (A) with notice to, but without the prior written
consent of, the Administrative Agent or the Borrower and without paying any
processing fee therefor, assign all or any portion of its interest in any Loan
to its Granting Lender or (B) with the consent (which consent shall not be
unreasonably withheld) of the Administrative Agent and (if no Event of Default
has occurred and
61
is continuing) the Borrower, but without paying any processing fee therefor,
assign all or any portion of its interest in any Loan to any financial
institution providing liquidity or credit facilities to or for the account of
such SPFV to fund the Loans funded by such SPFV or to support any securities
issued by such SPFV to fund such Loans, and (2) disclose, on a confidential
basis, any non-public information relating to Loans funded by it to any rating
agency, commercial paper dealer or provider of a surety, guaranty or credit or
liquidity enhancement to such SPFV. The Borrower shall not be required to pay,
or to reimburse any Granting Lender for, its expenses relating to any SPFV
identified by such Granting Lender pursuant to this paragraph (h).
SECTION 11.05. SURVIVAL. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans. The provisions of Sections 2.15, 2.16, 2.17 and 11.03 and Article IX
shall survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby, the repayment of the Loans, the
expiration or termination of the Commitments or the termination of this
Agreement or any provision hereof.
SECTION 11.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement, the
commitment letter relating to the credit facility provided hereby (to the extent
provided therein) and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 3.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 11.07. SEVERABILITY. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 11.08. RIGHT OF SETOFF. If an Event of Default shall have occurred
and be continuing, each Lender or the LC Bank or any Affiliate of either is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender to or for the credit or the account of any Credit
Party against any of and all the Obligations now or hereafter existing under
this Agreement held by such Lender or the LC Bank, irrespective of whether or
not such Lender or the LC Bank shall
62
have made any demand under this Agreement and although such Obligations may be
unmatured. The rights of each Lender and the LC Bank under this Section are in
addition to other rights and remedies (including other rights of setoff) which
such Lender may have.
SECTION 11.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS.
(a) This Agreement shall be construed in accordance with and governed by
the internal laws of the State of New York.
(b) Each Credit Party hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Administrative Agent or any Lender may otherwise have
to bring any action or proceeding relating to this Agreement against any Credit
Party or its properties in the courts of any jurisdiction.
(c) Each Credit Party hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 11.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
63
SECTION 11.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 11.11. HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 11.12. CONFIDENTIALITY. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Borrower
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than a Credit Party or any Subsidiary of a Credit Party. For the purposes
of this Section, "INFORMATION" means all information received from any Credit
Party or any Subsidiary of a Credit Party relating to a Credit Party or any
Subsidiary of a Credit Party or their respective businesses, other than any such
information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by any Credit Party or any Subsidiary
of a Credit Party; provided that, in the case of information received from any
Credit Party or any Subsidiary of a Credit Party after the Effective Date, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION 11.13. USA PATRIOT ACT. Each Lender hereby notifies the Credit
Parties that pursuant to the requirements of the USA PATRIOT Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the "ACT"), it is required
to obtain, verify and record information
64
that identifies the Credit Parties, which information includes the name and
address of the Credit Parties and other information that will allow such Lender
to identify the Credit Parties in accordance with the Act.
65
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
NISOURCE FINANCE CORP., as Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
NISOURCE INC., as Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
Signature page to
3-Year Credit Agreement
BARCLAYS BANK PLC, as a Lead Arranger and
Lender, as Swingline Lender, as LC
Bank and as Administrative Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Associate Director
Signature page to
3-Year Credit Agreement
CREDIT SUISSE FIRST BOSTON, ACTING
THROUGH ITS CAYMAN ISLANDS BRANCH, as a
Lead Arranger and Lender and as
Syndication Agent
By: /s/ S. ▇▇▇▇▇▇▇ ▇▇▇
-------------------------------------
Name: S. ▇▇▇▇▇▇▇ ▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Associate
Signature page to
3-Year Credit Agreement
BANK ONE, NA, as a Lender and as a
Co-Documentation Agent
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Title: Director
Signature page to
3-Year Credit Agreement
THE BANK OF TOKYO-MITSUBISHI, LTD.,
Chicago Branch, as a Lender and as a
Co-Documentation Agent
By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Deputy General Manager
Signature page to
3-Year Credit Agreement
CITICORP USA, Inc., as a Lender and as a
Co-Documentation Agent
By: /s/ J. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: J. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
Signature page to
3-Year Credit Agreement
BNP PARIBAS, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Title: Managing Director
Signature page to
3-Year Credit Agreement
COMMERZBANK AG, New York and Grand Cayman
Branches, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Treasurer
Signature page to
3-Year Credit Agreement
DEUTSCHE BANK AG, New York Branch, as a
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇
Title: Managing Director
Signature page to
3-Year Credit Agreement
DRESDNER BANK A.G., New York and Grand
Cayman Branches, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Associate
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
Signature page to
3-Year Credit Agreement
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FINANCING, INC., as a
Lender
By: /s/ Cahal ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: Cahal ▇. ▇▇▇▇▇▇▇
Title: Vice President
Signature page to
3-Year Credit Agreement
KEYBANK NATIONAL ASSOCIATION, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Signature page to
3-Year Credit Agreement
MIZUHO CORPORATE BANK, LTD., New York
Branch, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
Signature page to
3-Year Credit Agreement
THE ROYAL BANK OF SCOTLAND plc, as a
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Signature page to
3-Year Credit Agreement
WACHOVIA BANK, NATIONAL ASSOCIATION, as a
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Signature page to
3-Year Credit Agreement
BANK OF AMERICA, N.A., as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
Signature page to
3-Year Credit Agreement
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇'▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Managing Director
Signature page to
3-Year Credit Agreement
FLEET NATIONAL BANK, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
Signature page to
3-Year Credit Agreement
THE NORTHERN TRUST COMPANY, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vie President
Signature page to
3-Year Credit Agreement
PNC BANK, NATIONAL ASSOCIATION, as a
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
Signature page to
3-Year Credit Agreement
TORONTO DOMINION (TEXAS), INC., as a
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Signature page to
3-Year Credit Agreement
US BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
Signature page to
3-Year Credit Agreement
Annex A
PRICING GRID
The "Applicable Rate" for any day with respect to any Eurodollar Loan, ABR
Loan, Facility Fee, Utilization Fee or LC Risk Participation Fee, as the case
may be, is the percentage set forth below in the applicable row under the column
corresponding to the Status that exists on such day:
Status Level I Level II Level III Level IV Level V
------ ------- -------- --------- -------- -------
Eurodollar Revolving Loans
(basis points) 40.0 50.0 65.0 92.5 172.5
ABR Loans
(basis points) 0 0 0 0 72.5
Facility Fee (basis points) 12.5 15.0 17.5 25.0 47.5
Utilization Fee (basis points) 15.0 15.0 15.0 15.0 15.0
LC Risk Participation Fee (basis points) 40.0 50.0 65.0 92.5 172.5
For purposes of this Pricing Grid, the following terms have the following
meanings (as modified by the provisos below):
"LEVEL I STATUS" exists at any date if, at such date, the Index Debt is
rated either A- or higher by S&P or A3 or higher by ▇▇▇▇▇'▇.
"LEVEL II STATUS" exists at any date if, at such date, the Index Debt is
rated either BBB+ by S&P or Baa1 by ▇▇▇▇▇'▇.
"LEVEL III STATUS" exists at any date if, at such date, the Index Debt is
rated either BBB by S&P or Baa2 by ▇▇▇▇▇'▇.
"LEVEL IV STATUS" exists at any date if, at such date, the Index Debt is
rated either BBB- by S&P or Baa3 by ▇▇▇▇▇'▇.
"LEVEL V STATUS" exists at any date if, at such date, no other Status
exists.
"STATUS" refers to the determination of which of Level I Status, Level II
Status, Level III Status, Level IV Status or Level V Status exists at any date.
The credit ratings to be utilized for purposes of this Pricing Grid are those
assigned to the Index Debt, and any rating assigned to any other debt security
of the Borrower shall be disregarded. The rating in effect at any date is that
in effect at the close of business on such date.
Provided, that the applicable Status shall change as and when the applicable
Index Debt ratings change.
Provided further, that if the Index Debt is split-rated, the applicable Status
shall be determined on the basis of the higher of the two ratings then
applicable; provided further, that, if either such rating is lower than
BBB-/Baa3, the applicable Status shall instead be determined on the basis of the
lower of the two ratings then applicable.
Provided further, that if both ▇▇▇▇▇'▇ and S&P, or their successors as
applicable, shall have ceased to issue or maintain such ratings, then the
applicable Status shall be Level V.
Annex A-2
EXHIBIT A
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the 3-Year Revolving Credit Agreement dated as of
March 18, 2004, among NiSource Finance Corp., a Delaware corporation, as
Borrower (the "BORROWER"), NiSource Inc., a Delaware corporation ("NISOURCE"),
as Guarantor (the "GUARANTOR"), the Co-Documentation Agents, Lead Arrangers and
other Lenders from time to time party thereto, Credit Suisse First Boston, as
Syndication Agent, and Barclays Bank PLC, as LC Bank and as Administrative Agent
thereunder. Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
The Assignor named on Schedule 1 hereto (the "ASSIGNOR") and the Assignee
named on Schedule 1 hereto (the "ASSIGNEE") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), an interest as specified in Schedule 1 hereto
(the "ASSIGNED INTEREST") in and to the Assignor's rights and obligations under
the Credit Agreement as described on Schedule 1 hereto (individually, an
"ASSIGNED FACILITY"; collectively, the "ASSIGNED FACILITIES"), in a principal
amount for each Assigned Facility as set forth on Schedule 1 hereto.
2. The Assignor (a) 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 any other Credit Document
or with respect to the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto, other than that it is the
legal and beneficial owner of the Assigned Interest, that it has not created any
adverse claim upon the Assigned Interest and that the Assigned Interest is free
and clear of any such adverse claim; and (b) makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Borrower, the Guarantor or any of their respective Subsidiaries or the
performance or observance by the Borrower or the Guarantor of any of their
respective obligations under the Credit Agreement or any other Credit Document.
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into the Assignment and Acceptance; (b) confirms that it has
received a copy of the Credit Agreement, together with copies of the financial
statements referred to in Section 4.01 thereof and the most recent financial
statements referred to in Section 5.01 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (c) agrees that it will,
independently and without reliance upon the Assignor, the Administrative Agent,
the Syndication Agent, the LC Bank, any Co-Documentation Agent or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement or any other Credit Document; (d) appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under the Credit Agreement and any
other Credit Document
as are delegated to the Administrative Agent by the terms thereof, together with
such powers as are incidental thereto; and (e) agrees that it will be bound by
the provisions of the Credit Agreement and will perform in accordance with its
terms all the obligations which by the terms of the Credit Agreement are
required to be performed by it as a Lender.
4. The effective date of this Assignment and Acceptance shall be as
specified on Schedule 1 hereto (the "EFFECTIVE DATE"). Following the execution
of this Assignment and Acceptance, it will be delivered to the Administrative
Agent for acceptance by it and recording by the Administrative Agent pursuant to
Section 11.04 of the Credit Agreement, effective as of the Effective Date (which
shall not, unless otherwise agreed to by the Administrative Agent, be earlier
than five Business Days after the execution hereof).
5. Upon such acceptance and recording, from and after the Effective
Date, the Administrative Agent shall make all payments with respect to the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignee. The Assignor and the Assignee shall make all
appropriate adjustments in payments by the Administrative Agent for periods
prior to the Effective Date or with respect to the making of this assignment
directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a party
to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have (in addition to any rights and obligations theretofore held by
it) the rights and obligations of a Lender thereunder and shall be bound by the
provisions thereof, and (b) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement (other than any such rights which
expressly survive the termination thereof).
7. This Agreement may be executed in as many counterparts as may be
deemed necessary or convenient, and by the different parties hereto on separate
counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same agreement. Delivery
of an executed counterpart of a signature page to this Agreement by telecopier
shall be effective as delivery of a manually executed counterpart of this
Agreement.
8. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE INTERNAL
LAWS OF THE STATE OF NEW YORK. THIS AGREEMENT IS SUBJECT TO SECTION 11.09
(CHOICE OF FORUM AND SERVICE OF PROCESS) AND SECTION 11.10 (WAIVER OF TRIAL BY
JURY) OF THE CREDIT AGREEMENT. THE PROVISIONS OF SUCH SECTIONS 11.09 AND 11.10
OF THE CREDIT AGREEMENT ARE INCORPORATED HEREIN BY REFERENCE IN FULL.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
Exhibit A-2
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Facility Assigned Principal Amount Assigned Applicable Percentage Assigned*
----------------- ------------------------- -------------------------------
The terms set forth above and in the Assignment and Acceptance to which
this Schedule 1 is attached are hereby agreed to:
[Consented to and ]#/ Accepted
for the Recordation in the
Register:
______________, as Assignor
By:__________________________
Name:
Title:
BARCLAYS BANK PLC,
As Administrative Agent and LC Bank
By:___________________________
Name:
Title:
______________, as Assignee
By:___________________________
Name:
Title:
------------------------
* If applicable.
# To be completed only if consents are required under Section 11.04(b).
Exhibit A-3
[Consented to]:
NISOURCE FINANCE CORP.,
As Borrower
By:___________________________
Name:
Title:
Exhibit A-4
EXHIBIT B
FORM OF OPINION OF ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
SCHEDULE 2.01
(3-Year Credit Agreement)
Names, Addresses, Allocation of Aggregate Commitment, and Applicable Percentages
of Banks
DOMESTIC LENDING EURODOLLAR APPLICABLE
BANK NAME OFFICE LENDING OFFICE COMMITMENT PERCENTAGE
--------- ------ -------------- ---------- ----------
Barclays Bank PLC ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ same $60,600,000 8.08%
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Credit Suisse First One Madison Avenue same $60,600,000 8.08%
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Client Services
Bank One, NA 1 Bank One Plaza same $45,600,000 6.08%
Suite IL 1-0010
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
The Bank of Tokyo- ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ same $45,600,000 6.08%
Mitsubishi, Ltd., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Citicorp USA, Inc. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ same $45,600,000 6.08%
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
BNP Paribas ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ same $36,000,000 4.80%
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Commerzbank AG, Two World Financial same $36,000,000 4.80%
New York and Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Branches
Deutsche Bank AG ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ same $36,000,000 4.80%
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dresdner Bank A.G., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ same $36,000,000 4.80%
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Grand Cayman
Branches
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ same $36,000,000 4.80%
Financing, Inc. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
KeyBank National ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ same $36,000,000 4.80%
Association ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
DOMESTIC LENDING EURODOLLAR APPLICABLE
BANK NAME OFFICE LENDING OFFICE COMMITMENT PERCENTAGE
--------- ------ -------------- ---------- ----------
Mizuho Corporate 1251 Avenue of the same $36,000,000 4.80%
Bank, Ltd., Americas
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
The Royal Bank of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ same $36,000,000 4.80%
Scotland plc ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Wachovia Bank, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ same $36,000,000 4.80%
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Bank of America, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ same $24,000,000 3.20%
N.A. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The Bank of Nova ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ same $24,000,000 3.20%
Scotia N.E., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fleet National Bank ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ same $24,000,000 3.20%
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ same $24,000,000 3.20%
Company ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PNC ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇ same $24,000,000 3.20%
Association ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Toronto Dominion 909 ▇▇▇▇▇▇ 909 Fannin $24,000,000 3.20%
(Texas) Inc. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
US Bank National One US Bank Plaza same $24,000,000 3.20%
Association SL-MO-TL2M
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SWINGLINE LENDER:
BANK NAME LENDING OFFICE SWINGLINE COMMITMENT*
--------- -------------- ---------------------
Barclays Bank PLC ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ $200,000,000
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
*Swingline Commitments expressed as totals for this Agreement. Swingline
Commitments are within, and not in addition to, the Swingline Lender's
Commitment as a Lender.
SCHEDULE 3.01
FINANCING FACILITIES TO BE TERMINATED
1. $1,250,000,000 3-Year Revolving Credit Agreement dated as of March 23,
2001 among the Borrower, the Guarantor, the lenders named therein and
Barclays Bank PLC, as administrative agent.
SCHEDULE 6.01(e)
EXISTING AGREEMENTS
1. Lease Agreement, dated December 14, 1999, between ▇▇▇▇▇▇▇ Leasing LLC and
▇▇▇▇▇▇▇ Clean Energy, Inc. ($261,000,000).
2. 4-Year Letter of Credit Reimbursement Agreement, dated as of February 13,
2004, among the Borrower, the Guarantor, the lenders parties thereto and
Barclays Bank PLC, as administrative agent and as issuer of letters of
credit thereunder.
3. 364-Day Revolving Credit Agreement, dated as of March 18, 2004, among the
Borrower, the Guarantor, the lenders parties thereto and Barclays Bank
PLC, as administrative agent.
4. Various cumulative preferred stocks of NIPSCO.