Exhibit 10.1
================================================================================
THREE-YEAR REVOLVING CREDIT AGREEMENT
DATED AS OF JULY 14, 2004
among
AMEREN CORPORATION,
THE LENDERS FROM TIME TO TIME PARTIES HERETO
and
JPMORGAN CHASE BANK,
as Administrative Agent
and
BARCLAYS BANK PLC,
as Syndication Agent
THE BANK OF NEW YORK,
THE BANK OF TOKYO MITSUBISHI, LTD. and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agents
=================================================
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
and
BARCLAYS CAPITAL,
AS JOINT ARRANGERS AND BOOKRUNNERS
============================================================================
TABLE OF CONTENTS
ARTICLE I DEFINITIONS..........................................................................1
1.1. Certain Defined Terms...................................................................1
1.2. Plural Forms...........................................................................17
ARTICLE II THE CREDITS.........................................................................17
2.1. Commitment.............................................................................17
2.2. Required Payments; Termination.........................................................17
2.3. Loans..................................................................................18
2.4. Competitive Bid Procedure..............................................................18
2.5. Swingline Loans........................................................................20
2.6. Letters of Credit......................................................................21
2.7. Types of Advances......................................................................25
2.8. Facility Fee; Letter of Credit Fees; Reductions in Aggregate Commitment................25
2.9. Minimum Amount of Each Advance.........................................................26
2.10. Optional Principal Payments............................................................26
2.11. Method of Selecting Types and Interest Periods for New Revolving Advances..............26
2.12. Conversion and Continuation of Outstanding Revolving Advances; No Conversion or
Continuation of Revolving Eurodollar Advances After Default............................27
2.13. Changes in Interest Rate, etc..........................................................27
2.14. Rates Applicable After Default.........................................................28
2.15. Funding of Loans; Method of Payment....................................................28
2.16. Noteless Agreement; Evidence of Indebtedness...........................................28
2.17. Telephonic Notices.....................................................................29
2.18. Interest Payment Dates; Interest and Fee Basis.........................................29
2.19. Notification of Advances, Interest Rates, Prepayments and Commitment Reductions;
Availability of Loans..................................................................30
2.20. Lending Installations..................................................................30
2.21. Non-Receipt of Funds by the Agent......................................................30
2.22. Replacement of Lender..................................................................31
ARTICLE III YIELD PROTECTION; TAXES.............................................................31
3.1. Yield Protection.......................................................................31
3.2. Changes in Capital Adequacy Regulations................................................32
3.3. Availability of Types of Advances......................................................33
3.4. Funding Indemnification................................................................33
3.5. Taxes..................................................................................33
3.6. Lender Statements; Survival of Indemnity...............................................35
3.7. Alternative Lending Installation.......................................................35
ARTICLE IV CONDITIONS PRECEDENT................................................................36
4.1. Initial Credit Extension...............................................................36
i
4.2. Each Credit Extension..................................................................37
ARTICLE V REPRESENTATIONS AND WARRANTIES......................................................38
5.1. Existence and Standing.................................................................38
5.2. Authorization and Validity.............................................................38
5.3. No Conflict; Government Consent........................................................38
5.4. Financial Statements...................................................................39
5.5. Material Adverse Change................................................................39
5.6. Taxes..................................................................................39
5.7. Litigation and Contingent Obligations..................................................39
5.8. Subsidiaries...........................................................................40
5.9. ERISA..................................................................................40
5.10. Accuracy of Information................................................................40
5.11. Regulation U...........................................................................40
5.12. Material Agreements....................................................................40
5.13. Compliance With Laws...................................................................40
5.14. Ownership of Properties................................................................41
5.15. Plan Assets; Prohibited Transactions...................................................41
5.16. Environmental Matters..................................................................41
5.17. Investment Company Act.................................................................41
5.18. Public Utility Holding Company Act; Securities and Exchange
Commission Authorization...............................................................41
5.19. Insurance..............................................................................42
5.20. No Default or Unmatured Default........................................................42
ARTICLE VI COVENANTS...........................................................................42
6.1. Financial Reporting....................................................................42
6.2. Use of Proceeds and Letters of Credit..................................................43
6.3. Notice of Default......................................................................43
6.4. Conduct of Business....................................................................43
6.5. Taxes..................................................................................44
6.6. Insurance..............................................................................44
6.7. Compliance with Laws; Securities and Exchange Commission
Authorization..........................................................................44
6.8. Maintenance of Properties..............................................................44
6.9. Inspection; Keeping of Books and Records...............................................44
6.10. Merger.................................................................................45
6.11. Sale of Assets.........................................................................45
6.12. Indebtedness of Project Finance Subsidiaries, Investments in Project
Finance Subsidiaries; Acquisitions.....................................................46
6.13. Liens..................................................................................46
6.14. Affiliates.............................................................................48
6.15. Financial Contracts....................................................................48
6.16. Subsidiary Covenants...................................................................48
6.17. Leverage Ratio.........................................................................49
ii
ARTICLE VII DEFAULTS............................................................................49
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES......................................51
8.1. Acceleration...........................................................................51
8.2. Amendments.............................................................................52
8.3. Preservation of Rights.................................................................53
ARTICLE IX GENERAL PROVISIONS..................................................................53
9.1. Survival of Representations............................................................53
9.2. Governmental Regulation................................................................53
9.3. Headings...............................................................................53
9.4. Entire Agreement.......................................................................53
9.5. Several Obligations; Benefits of this Agreement........................................53
9.6. Expenses; Indemnification..............................................................54
9.7. Numbers of Documents...................................................................55
9.8. Accounting.............................................................................55
9.9. Severability of Provisions.............................................................55
9.10. Nonliability...........................................................................55
9.11. Confidentiality........................................................................56
9.12. Lenders Not Utilizing Plan Assets......................................................56
9.13. Nonreliance............................................................................56
9.14. Disclosure.............................................................................56
9.15. USA Patriot Act........................................................................56
ARTICLE X THE AGENT...........................................................................57
10.1. Appointment; Nature of Relationship....................................................57
10.2. Powers.................................................................................57
10.3. General Immunity.......................................................................57
10.4. No Responsibility for Loans, Recitals, etc.............................................57
10.5. Action on Instructions of Lenders......................................................58
10.6. Employment of Agents and Counsel.......................................................58
10.7. Reliance on Documents; Counsel.........................................................58
10.8. Agent's Reimbursement and Indemnification..............................................58
10.9. Notice of Default......................................................................59
10.10. Rights as a Lender.....................................................................59
10.11. Independent Credit Decision............................................................59
10.12. Successor Agent........................................................................60
10.13. Agent and Arranger Fees................................................................60
10.14. Delegation to Affiliates...............................................................60
10.15. Syndication Agent and Documentation Agents.............................................60
ARTICLE XI SETOFF; RATABLE PAYMENTS............................................................61
11.1. Setoff.................................................................................61
11.2. Ratable Payments.......................................................................61
iii
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS...................................61
12.1. Successors and Assigns; Designated Lenders.............................................61
12.2. Participations.........................................................................63
12.3. Assignments............................................................................64
12.4. Dissemination of Information...........................................................66
12.5. Tax Certifications.....................................................................66
ARTICLE XIII NOTICES.............................................................................66
13.1. Notices................................................................................66
13.2. Change of Address......................................................................67
ARTICLE XIV COUNTERPARTS........................................................................67
ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF
JURY TRIAL..........................................................................67
ARTICLE XVI TERMINATION OF EXISTING CREDIT AGREEMENTS;
WAIVER OF CERTAIN PROVISIONS UNDER THE EXISTING
CREDIT AGREEMENTS...................................................................68
iv
SCHEDULES
---------
Commitment Schedule
Pricing Schedule
Schedule 1 - Subsidiaries
Schedule 2 - Liens
Schedule 3 - Restrictive Agreements
EXHIBITS
--------
Exhibit A - Form of Borrower's Counsel's Opinions
Exhibit B - Form of Compliance Certificate
Exhibit C - Form of Assignment and Assumption Agreement
Exhibit D - Form of Loan/Credit Related Money Transfer Instruction
Exhibit E - Form of Promissory Note (if requested)
Exhibit F - Form of Designation Agreement
v
THREE-YEAR REVOLVING CREDIT AGREEMENT
This Three-Year Revolving Credit Agreement, dated as of July 14, 2004, is
entered into by and among Ameren Corporation, a Missouri corporation, the
Lenders and JPMorgan Chase Bank as Administrative Agent. The parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms. As used in this Agreement:
"Accounting Changes" is defined in Section 9.8 hereof.
"Acquisition" means any transaction, or any series of related transactions,
consummated on or after the Closing Date, by which the Borrower or any of its
Subsidiaries (i) acquires any going business or all or substantially all of the
assets of any firm, corporation or limited liability company, or division
thereof, whether through purchase of assets, merger or otherwise or (ii)
directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power for
the election of directors (other than securities having such power only by
reason of the happening of a contingency) or a majority (by percentage of voting
power) of the outstanding ownership interests of a partnership or limited
liability company of any Person.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Agent.
"Advance" means (a) Revolving Loans (i) made by some or all of the Lenders
on the same Borrowing Date or (ii) converted or continued by the Lenders on the
same date of conversion or continuation, consisting, in either case, of the
aggregate amount of the several Revolving Loans of the same Type and, in the
case of Eurodollar Loans, for the same Interest Period, (b) a Competitive Loan
or group of Competitive Loans of the same type made on the same date and as to
which a single Interest Period is in effect or (c) a Swingline Loan.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of 10% or more of any class of voting securities (or other ownership
interests) of the controlled Person or possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of voting securities, by contract
or otherwise.
"Agent" means JPMCB, not in its individual capacity as a Lender, but in its
capacity as contractual representative of the Lenders pursuant to Article X, and
any successor Agent appointed pursuant to Article X.
"Aggregate Commitment" means the aggregate of the Commitments of all the
Lenders, as reduced from time to time pursuant to the terms hereof. The initial
Aggregate Commitment is Three Hundred Fifty Million and 00/100 Dollars
($350,000,000).
"Aggregate Outstanding Credit Exposure" means, at any time, the aggregate
of the Outstanding Credit Exposures of all the Lenders.
"Aggregate Revolving Credit Exposure" means, at any time, the aggregate of
the Revolving Credit Exposures of all the Lenders.
"Agreement" means this Three-Year Revolving Credit Agreement, as it may be
amended, restated, supplemented or otherwise modified and as in effect from time
to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect in the United States from time to time, applied in a
manner consistent with that used in preparing the financial statements of the
Borrower referred to in Section 5.4; provided, however, that except as provided
in Section 9.8, with respect to the calculation of financial ratio set forth in
Sections 6.17 (and the defined terms used in such Sections), "Agreement
Accounting Principles" means generally accepted accounting principles as in
effect in the United States as of the Closing Date, applied in a manner
consistent with that used in preparing the financial statements of the Borrower
referred to in Section 5.4 hereof.
"Alternate Base Rate" means, for any day, a fluctuating rate of interest
per annum equal to the higher of (i) the Prime Rate for such day and (ii) the
sum of (a) the Federal Funds Effective Rate for such day and (b) one-half of one
percent (0.5%) per annum.
"Applicable Fee Rate" means, with respect to the Facility Fee and the LC
Participation Fee at any time, the percentage rate per annum which is applicable
at such time with respect to each such fee as set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type, as set forth in the Pricing Schedule.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arrangers" means ▇.▇. ▇▇▇▇▇▇ Securities Inc. and Barclays Capital and
their respective successors, in their respective capacities as Joint Arrangers
and Bookrunners.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Assignment Agreement" is defined in Section 12.3.1.
"Authorized Officer" means any of the chief executive officer, president,
chief operating officer, chief financial officer, treasurer or vice president of
the Borrower, acting singly.
2
"Available Aggregate Commitment" means, at any time, the Aggregate
Commitment then in effect minus the Aggregate Outstanding Credit Exposure at
such time.
"Barclays Bank" means Barclays Bank PLC, in its individual capacity, and
its successors.
"Borrower" means Ameren Corporation, a Missouri corporation, and its
permitted successors and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.11.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in New York, New York for the conduct of
substantially all of their commercial lending activities, interbank wire
transfers can be made on the Fedwire system and dealings in Dollars are carried
on in the London interbank market and (ii) for all other purposes, a day (other
than a Saturday or Sunday) on which banks generally are open in New York, New
York for the conduct of substantially all of their commercial lending activities
and interbank wire transfers can be made on the Fedwire system.
"Capitalized Lease" of a Person means any lease of Property by such Person
as lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Change in Control" means (i) the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of twenty percent (20%) or more of the aggregate ordinary voting
power represented by the issued and outstanding capital stock of the Borrower;
(ii) the Borrower shall cease to own, directly or indirectly and free and clear
of all Liens or other encumbrances (except for such Liens or other encumbrances
permitted by Section 6.13), 100% of the outstanding shares of the ordinary
voting power represented by the issued and outstanding common stock of each of
CIPS, Ameren Energy Generating Company, AmerenEnergy Resources Generating
Company, Union Electric and CILCO, and, from and after the date of the IP
Acquisition, IP, in each case on a fully diluted basis; or (iii) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the
Borrower by Persons who were neither (i) nominated by the board of directors of
the Borrower or a committee or subcommittee thereof to which such power was
delegated nor (ii) appointed by directors so nominated; provided that any
individual who is so nominated in connection with a merger, consolidation,
acquisition or similar transaction shall be included in such majority unless
such individual was a member of the Borrower's board of directors prior thereto.
"CILCO" means Central Illinois Light Company d/b/a AmerenCILCO, an Illinois
corporation.
3
"CILCORP" means CILCORP Inc., an Illinois corporation, the parent company
of CILCO.
"CIPS" means Central Illinois Public Service Company d/b/a AmerenCIPS, an
Illinois corporation.
"Closing Date" means July 14, 2004.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time, and any rule or regulation issued
thereunder.
"Combined Commitment" means the sum of (i) the Aggregate Commitment
hereunder plus (ii) so long as the "Commitments" under the Five-Year Credit
Agreement shall remain in effect or there shall be any "Outstanding Credit
Exposure" thereunder, the "Aggregate Commitment" under and as defined in the
Five-Year Credit Agreement.
"Combined LC Exposure" means, for any date, the sum of (i) the LC Exposure
hereunder plus (ii) so long as the "Commitments" under the Five-Year Credit
Agreement shall remain in effect or there shall be any "Outstanding Credit
Exposure" thereunder, the "LC Exposure" as of such date under (and as defined
in) the Five-Year Credit Agreement.
"Combined Swingline Exposure" means, for any date, the sum of (i) the
Swingline Exposure hereunder plus (ii) so long as the "Commitments" under the
Five-Year Credit Agreement shall remain in effect or there shall be any
"Outstanding Credit Exposure" thereunder, the "Swingline Exposure" as of such
date under (and as defined in) the Five-Year Credit Agreement.
"Combined Utilized Amount" means, for any date, the sum of (i) the
Aggregate Outstanding Credit Exposure hereunder plus (ii) so long as the
"Commitments" under the Five-Year Credit Agreement shall remain in effect or
there shall be any "Outstanding Credit Exposure" thereunder, the "Aggregate
Outstanding Credit Exposure" as of such date under (and as defined in) the
Five-Year Credit Agreement.
"Commitment" means, for each Lender, the amount set forth on the Commitment
Schedule or in an Assignment Agreement executed pursuant to Section 12.3
opposite such Lender's name, as it may be modified as a result of any assignment
that has become effective pursuant to Section 12.3.2 or as otherwise modified
from time to time pursuant to the terms hereof.
"Commitment Schedule" means the Schedule identifying each Lender's
Commitment as of the Closing Date attached hereto and identified as such.
"Commonly Controlled Entity" means any trade or business, whether or not
incorporated, which is under common control with the Borrower or any Subsidiary
within the meaning of Section 4001 of ERISA or that, together with the Borrower
or any Subsidiary, is treated as a single employer under Section 414(b) or (c)
of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of
the Code, is treated as a single employer under Section 414 of the Code.
4
"Competitive Bid" means an offer by a Lender to make a Competitive Loan in
accordance with Section 2.4.
"Competitive Bid Rate" means, with respect to any Competitive Bid, the
Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for Competitive
Bids in accordance with Section 2.4.
"Competitive Loan" means a Loan made pursuant to Section 2.4.
"Consolidated Indebtedness" of a Person means at any time the Indebtedness
of such Person and its Subsidiaries calculated on a consolidated basis as of
such time.
"Consolidated Net Worth" of a Person means at any time the consolidated
stockholders' equity and preferred stock of such Person and its Subsidiaries
calculated on a consolidated basis in accordance with Agreement Accounting
Principles.
"Consolidated Tangible Assets" means the total amount of all assets of the
Borrower and its consolidated Subsidiaries determined in accordance with
Agreement Accounting Principles, minus, to the extent included in the total
amount of the Borrower's and its consolidated Subsidiaries' total assets, the
net book value of all (i) goodwill, including, without limitation, the excess
cost over book value of any asset, (ii) organization or experimental expenses,
(iii) unamortized debt discount and expense, (iv) patents, trademarks,
tradenames and copyrights, (v) treasury stock, (vi) franchises, licenses and
permits, and (vii) other assets which are deemed intangible assets under
Agreement Accounting Principles.
"Consolidated Total Capitalization" means at any time the sum of
Consolidated Indebtedness and Consolidated Net Worth, each calculated at such
time.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or the obligations of any such Person as general
partner of a partnership with respect to the liabilities of the partnership.
"Conversion/Continuation Notice" is defined in Section 2.12.
"Credit Extension" means the making of an Advance or the issuance of a
Letter of Credit hereunder.
"Credit Extension Date" means the Borrowing Date for an Advance or the date
of issuance of a Letter of Credit.
"Default" means an event described in Article VII.
5
"Designated Lender" means, with respect to each Designating Lender, each
Eligible Designee designated by such Designating Lender pursuant to Section
12.1.2.
"Designating Lender" means, with respect to each Designated Lender, the
Lender that designated such Designated Lender pursuant to Section 12.1.2.
"Designation Agreement" is defined in Section 12.1.2.
"Disclosed Matters" means the events, actions, suits and proceedings and
the environmental matters disclosed in the Exchange Act Documents.
"Documentation Agents" means The Bank of New York, The Bank of Tokyo
Mitsubishi, Ltd. and Wachovia Bank, National Association.
"Dollar" and "$" means the lawful currency of the United States of America.
"Eligible Designee" means a special purpose corporation, partnership,
trust, limited partnership or limited liability company that is administered by
the respective Designating Lender or an Affiliate of such Designating Lender and
(i) is organized under the laws of the United States of America or any state
thereof, (ii) is engaged primarily in making, purchasing or otherwise investing
in commercial loans in the ordinary course of its business and (iii) issues (or
the parent of which issues) commercial paper rated at least A-1 or the
equivalent thereof by S&P or P-1 or the equivalent thereof by Moody's.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to (i) the
protection of the environment, (ii) the effect of the environment on human
health, (iii) emissions, discharges or releases of pollutants, contaminants,
hazardous substances or wastes into surface water, ground water or land, or (iv)
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Event" means (a) any Reportable Event; (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA) whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any Commonly Controlled Entity of
any liability under Title IV of ERISA with respect to the termination of any
Plan; (e) the receipt by the Borrower or any Commonly Controlled Entity from the
PBGC or a plan administrator of any notice relating to an intention to terminate
any Plan or to appoint a trustee to administer any Plan; (f) the incurrence by
the Borrower or any Commonly Controlled Entity of any liability with respect to
the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g)
the receipt by the Borrower or any Commonly
6
Controlled Entity of any notice, or the receipt by any Multiemployer Plan from
the Borrower or any Commonly Controlled Entity of any notice, concerning the
imposition of "withdrawal liability" (as defined in Part I of Subtitle E of
Title IV of ERISA) or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"Eurodollar Advance" means an Advance which, except as otherwise provided
in Section 2.14, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the applicable British Bankers' Association LIBOR rate
for deposits in Dollars as reported by any generally recognized financial
information service as of 11:00 a.m. (London time) two (2) Business Days prior
to the first day of such Interest Period, and having a maturity equal to such
Interest Period, provided that, if no such British Bankers' Association LIBOR
rate is available to the Agent, the applicable Eurodollar Base Rate for the
relevant Interest Period shall instead be the rate determined by the Agent to be
the rate at which JPMCB or one of its affiliate banks offers to place deposits
in Dollars with first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
day of such Interest Period, in the approximate amount of JPMCB's relevant
Eurodollar Loan and having a maturity equal to such Interest Period.
"Eurodollar Loan" means a Loan which, except as otherwise provided in
Section 2.14, bears interest at the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(ii) (A) in the case of a Eurodollar Advance consisting of Revolving Loans, the
then Applicable Margin, changing as and when the Applicable Margin changes and
(B) in the case of a Eurodollar Advance consisting of a Competitive Loan or
Loans, the Margin applicable to such Loan or Loans.
"Eurodollar Rate Advance" means an Advance consisting of Competitive Loans
bearing interest at the Eurodollar Rate.
"Exchange Act Documents" means (a) the Annual Report of each of the
Borrower, CIPS, Union Electric, Ameren Energy Generating Company, IP (subject to
the IP Acquisition), CILCORP and CILCO to the Securities and Exchange Commission
on Form 10-K for the fiscal year ended December 31, 2003, (b) the Quarterly
Reports of each of the Borrower, CIPS, Union Electric, Ameren Energy Generating
Company, IP (subject to the IP Acquisition), CILCORP and CILCO to the Securities
and Exchange Commission on Form 10-Q for the fiscal quarter ended March 31,
2004, and (c) all Current Reports of each of the Borrower, CIPS, Union Electric,
Ameren Energy Generating Company, IP (subject to the IP Acquisition), CILCORP
and CILCO to the Securities and Exchange Commission on Form 8-K from January 1,
2004 to the Closing Date.
"Excluded Taxes" means, in the case of each Lender or applicable Lending
Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or
7
any political combination or subdivision or taxing authority thereof or (ii) the
jurisdiction in which the Agent's or such Lender's principal executive office or
such Lender's applicable Lending Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another document
is specifically referenced.
"Existing 364-Day Credit Agreement" means the 364-Day Revolving Credit
Agreement dated as of July 17, 2003, among the Borrower, the lenders from time
to time party thereto and JPMCB, as administrative agent.
"Existing CILCO Indenture" means the Indenture of Mortgage and Deed of
Trust dated as of April 1, 1933, as heretofore or from time to time hereafter
supplemented and amended, between CILCO and Deutsche Bank Trust Company Americas
f/k/a Bankers Trust Company, as Trustee.
"Existing Credit Agreements" means the Existing 364-Day Credit Agreement
and the Existing Thee-Year Credit Agreement.
"Existing Indentures" means (i) the Indenture of Mortgage and Deed of Trust
dated as of June 15, 1937, as heretofore or from time to time hereafter
supplemented and amended, between Union Electric and The Bank of New York, as
Trustee, and (ii) the Indenture of Mortgage or Deed of Trust dated as of October
1, 1941, as heretofore or from time to time hereafter supplemented and amended,
between CIPS and U.S. Bank Trust National Association and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as
Trustees.
"Existing IP Indenture" means the General Mortgage Indenture and Deed of
Trust dated as of November 1, 1992, as heretofore or from time to time
supplemented and amended between IP and BNY Midwest Trust Company as successor
to ▇▇▇▇▇▇ Trust and Savings Bank, as Trustee.
"Existing Three-Year Credit Agreement" means the 3-Year Revolving Credit
Agreement dated as of July 19, 2002, as amended, among the Borrower, the lenders
from time to time party thereto and Bank One, N.A., as administrative agent.
"Facility Fee" is defined in Section 2.8.1.
"Facility Termination Date" means the earlier of (a) July 14, 2007, and (b)
the date of termination in whole of the Aggregate Commitment pursuant to Section
2.8 hereof or the Commitments pursuant to Section 8.1 hereof.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal Funds
transactions with members of the Federal Reserve System arranged by Federal
Funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 11:00 a.m. (New
York time) on such day on such transactions received by the Agent from three
Federal Funds brokers of recognized standing selected by the Agent in its sole
discretion.
8
"First Mortgage Bonds" means bonds or other indebtedness issued by Union
Electric, CIPS or CILCO, as applicable, pursuant to the Existing Indentures or
the Existing CILCO Indenture and, from and after the IP Acquisition, bonds or
other indebtedness issued by IP pursuant to the Existing IP Indenture.
"Five-Year Credit Agreement" means the Five-Year Revolving Credit Agreement
dated as of the date hereof by and among the Borrower, the lenders party thereto
and JPMCB, as administrative agent, as the same may be amended, restated,
supplemented or otherwise modified and as in effect from time to time.
"Fixed Rate" means, with respect to any Competitive Loan (other than a
Eurodollar Loan), the fixed rate of interest per annum specified by the Lender
making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Advance" means an Advance consisting of Competitive Loans
bearing interest at a Fixed Rate.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed
Rate.
"Floating Rate" means, for any day, a rate per annum equal to the sum of
(i) the Alternate Base Rate for such day, changing when and as the Alternate
Base Rate changes plus (ii) the then Applicable Margin, changing as and when the
Applicable Margin changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.14, bears interest at the Floating Rate.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Inactive Subsidiary" means any Subsidiary of the Borrower that (a) does
not conduct any business operations, (b) has assets with a total book value not
in excess of $1,000,000 and (c) does not have any Indebtedness outstanding.
"Indebtedness" of a Person means, at any time, without duplication, such
Person's (i) obligations for borrowed money, (ii) obligations representing the
deferred purchase price of Property or services (other than current accounts
payable arising in the ordinary course of such Person's business payable on
terms customary in the trade), (iii) obligations, whether or not assumed,
secured by Liens or payable out of the proceeds or production from Property now
or hereafter owned or acquired by such Person, (iv) obligations which are
evidenced by notes, bonds, debentures, acceptances, or other instruments, (v)
obligations to purchase securities or other Property arising out of or in
connection with the sale of the same or substantially similar securities or
Property, (vi) Capitalized Lease Obligations (except for Capitalized Lease
Obligations entered into by Union Electric in connection with the ▇▇▇▇ Creek
Project), (vii) Contingent Obligations of such Person, (viii) reimbursement
obligations under letters of credit, bankers acceptances, surety bonds and
similar instruments issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable,
(ix) Off-Balance Sheet Liabilities, (x) obligations under Sale and Leaseback
Transactions,
9
(xi) Net ▇▇▇▇-to-Market Exposure under Rate Management Transactions and (xii)
any other obligation for borrowed money which in accordance with Agreement
Accounting Principles would be shown as a liability on the consolidated balance
sheet of such Person.
"Interest Period" means (a) with respect to a Eurodollar Advance, a period
of one, two, three or six months, commencing on the date of such Advance and
ending on but excluding the day which corresponds numerically to such date one,
two, three or six months thereafter and (b) with respect to any Fixed Rate
Advance, the period (which shall not be less than 7 days or more than 360 days)
commencing on the date of such Advance and ending on the date specified in the
applicable Competitive Bid Request; provided, however, that (i) in the case of
Eurodollar Advances, if there is no such numerically corresponding day in such
next, second, third or sixth succeeding month, such Interest Period shall end on
the last Business Day of such next, second, third or sixth succeeding month and
(ii) if an Interest Period would otherwise end on a day which is not a Business
Day, such Interest Period shall end on the next succeeding Business Day,
provided, however, that if said next succeeding Business Day falls in a new
calendar month, such Interest Period shall end on the immediately preceding
Business Day. For purposes hereof, the date of an Advance initially shall be the
date on which such Advance is made and, in the case of an Advance comprising
Revolving Loans, thereafter shall be the effective date of the most recent
conversion or continuation of such Loans.
"Investment" of a Person means any loan, advance (other than commission,
travel and similar advances to officers and employees made in the ordinary
course of business), extension of credit (other than accounts receivable arising
in the ordinary course of business on terms customary in the trade) or
contribution of capital by such Person; stocks, bonds, mutual funds, partnership
interests, notes, debentures or other securities owned by such Person; any
deposit accounts and certificate of deposit owned by such Person; and structured
notes, derivative financial instruments and other similar instruments or
contracts owned by such Person.
"IP" means Illinois Power Company, an Illinois corporation.
"IP Acquisition" means the acquisition by the Borrower of all of the common
stock of IP, 662,924 shares of preferred stock, $50 par value per share, of IP,
and 12,400 shares of common stock, $100 par value per share, of Electric Energy,
Inc., on the terms and conditions set forth in that certain Stock Purchase
Agreement dated as of February 2, 2004, as amended, by and among the Borrower,
as purchaser, Illinova Corporation, as seller, Illinova Generating Company, and
Dynegy Inc.
"Issuing Bank" means, at any time, JPMorgan Chase Bank and each other
person that shall have become an Issuing Bank hereunder as provided in Section
2.6(j), each in its capacity as an issuer of Letters of Credit hereunder. Each
Issuing Bank may, in its discretion, arrange for one or more Letters of Credit
to be issued by Affiliates of such Issuing Bank, in which case the term "Issuing
Bank" shall include any such Affiliate with respect to Letters of Credit issued
by such Affiliate.
"Issuing Bank Agreement" shall have the meaning assigned to such term in
Section 2.6(j).
10
"JPMCB" means JPMorgan Chase Bank.
"LC Commitment" shall mean, as to each Issuing Bank, the commitment of such
Issuing Bank to issue Letters of Credit pursuant to Section 2.6. The initial
amount of each Issuing Bank's LC Commitment is set forth on the LC Commitment
Schedule, or in the case of any additional Issuing Bank, as provided in Section
2.6(j).
"LC Disbursement" means a payment made by an Issuing Bank pursuant to a
Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Lender at any time shall be
its Pro Rata Share of the total LC Exposure at such time.
"LC Participation Fee" is defined in Section 2.8.2.
"Lenders" means the lending institutions listed on the signature pages of
this Agreement and their respective successors and assigns. Unless the context
requires otherwise, the term "Lenders" includes the Swingline Lender.
"Lending Installation" means, with respect to a Lender or the Agent, the
office, branch, subsidiary or affiliate of such Lender or the Agent listed on
the signature pages hereof or on the administrative information sheets provided
to the Agent in connection herewith or on a Schedule or otherwise selected by
such Lender or the Agent pursuant to Section 2.20.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement, and, in the case of stock, stockholders agreements, voting trust
agreements and all similar arrangements).
"Loans" means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
"Loan Documents" means this Agreement and all other documents, instruments,
notes (including any Notes issued pursuant to Section 2.16 (if requested)) and
agreements executed in connection herewith or therewith or contemplated hereby
or thereby, as the same may be amended, restated or otherwise modified and in
effect from time to time.
"Margin" means, with respect to any Competitive Loan bearing interest at a
rate based on the Eurodollar Base Rate, the marginal rate of interest, if any,
to be added to or subtracted from the Eurodollar Base Rate to determine the rate
of interest applicable to such Loan, as specified by the Lender making such Loan
in its related Competitive Bid.
11
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), operations or results of
operations or prospects of the Borrower, or the Borrower and its Subsidiaries
taken as a whole, (ii) the ability of the Borrower to perform its obligations
under the Loan Documents, or (iii) the validity or enforceability of any of the
Loan Documents or the rights or remedies of the Agent or the Lenders thereunder.
"Material Indebtedness" means (i) any Indebtedness outstanding under the
Five-Year Credit Agreement and (ii) any other Indebtedness in an outstanding
principal amount of $50,000,000 or more in the aggregate (or the equivalent
thereof in any currency other than Dollars).
"Material Indebtedness Agreement" means any agreement under which any
Material Indebtedness was created or is governed or which provides for the
incurrence of Indebtedness in an amount which would constitute Material
Indebtedness (whether or not an amount of Indebtedness constituting Material
Indebtedness is outstanding thereunder).
"Money Pool Agreements" means, collectively, (i) that certain Ameren
Corporation System Utility Money Pool Agreement, dated as of March 25, 1999, by
and among the Borrower, Ameren Services Company, Union Electric, CIPS, CILCO,
and AmerenEnergy Resources Generating Company, as amended from time to time
(including, without limitation, the addition of any of their Affiliates as
parties thereto), and (ii) that certain Ameren Corporation System Non-Regulated
Subsidiary Money Pool Agreement, dated as of February 27, 2003, by and among the
Borrower, Ameren Services Company and Subsidiaries of the Borrower excluding
Union Electric, CIPS and CILCO, as amended from time to time (including, without
limitation, the addition of any of their Affiliates, other than Union Electric,
CIPS and CILCO, and, from and after the date of the IP Acquisition, IP, as
parties thereto).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA.
"Net ▇▇▇▇-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Management Transactions. "Unrealized
losses" means the fair market value of the cost to such Person of replacing such
Rate Management Transaction as of the date of determination (assuming the Rate
Management Transaction were to be terminated as of that date), and "unrealized
profits" means the fair market value of the gain to such Person of replacing
such Rate Management Transaction as of the date of determination (assuming such
Rate Management Transaction were to be terminated as of that date).
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" is defined in Section 2.16.
"Obligations" means all Loans, reimbursement obligations in respect of LC
Disbursements, advances, debts, liabilities, obligations, covenants and duties
owing by the Borrower to the Agent, any Issuing Bank, any Lender, the Arrangers,
any affiliate of the Agent,
12
any Issuing Bank, any Lender or the Arrangers, or any indemnitee under the
provisions of Section 9.6 or any other provisions of the Loan Documents, in each
case of any kind or nature, present or future, arising under this Agreement or
any other Loan Document, whether or not evidenced by any note, guaranty or other
instrument, whether or not for the payment of money, whether arising by reason
of an extension of credit, loan, foreign exchange risk, guaranty,
indemnification, or in any other manner, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired. The term includes, without
limitation, all interest, charges, expenses, fees, attorneys' fees and
disbursements, paralegals' fees (in each case whether or not allowed), and any
other sum chargeable to the Borrower or any of its Subsidiaries under this
Agreement or any other Loan Document.
"Off-Balance Sheet Liability" of a Person means the principal component of
(i) any repurchase obligation or liability of such Person with respect to
accounts or notes receivable sold by such Person, (ii) any liability under any
Sale and Leaseback Transaction which is not a Capitalized Lease, (iii) any
liability under any so-called "synthetic lease" or "tax ownership operating
lease" transaction entered into by such Person, or (iv) any obligation arising
with respect to any other transaction which is the functional equivalent of or
takes the place of borrowing but which does not constitute a liability on the
consolidated balance sheets of such Person, but excluding from this clause (iv)
Operating Leases.
"Operating Lease" of a Person means any lease of Property (other than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
"Other Taxes" is defined in Section 3.5(ii).
"Outstanding Credit Exposure" means, as to any Lender at any time, the
aggregate principal amount of its (i) Revolving Loans, (ii) Competitive Loans,
(iii) LC Exposure and (iv) Swingline Exposure outstanding at such time.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each March, June, September and
December and the Facility Termination Date.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"▇▇▇▇ Creek Project" means the Chapter 100 financing transaction and
agreements related thereto entered into between Union Electric and the City of
Bowling Green, Missouri (the "City") pursuant to which (i) Union Electric
conveys to and leases from the City certain land and improvements including four
combustion turbine generating units, and (ii) the City shall issue indebtedness
(which shall be purchased by Union Electric) to finance the acquisition of such
Property.
13
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means at a particular time, any employee benefit plan (other than a
Multiemployer Plan) which is covered by ERISA or Section 412 of the Code and in
respect of which the Borrower or a Commonly Controlled Entity is (or, if such
plan were terminated at such time, would under Section 4069 of ERISA be deemed
to be) an "employer" as defined in Section 3(5) of ERISA.
"Pricing Schedule" means the Schedule identifying the Applicable Margin and
Applicable Fee Rate attached hereto and identified as such.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by JPMCB (which is not necessarily the lowest rate
charged to any customer), changing when and as said prime rate changes.
"Project Finance Subsidiary" means any Subsidiary created for the purpose
of obtaining non-recourse financing for any operating asset that is the sole and
direct obligor of Indebtedness incurred in connection with such financing. A
Subsidiary shall be deemed to be a Project Finance Subsidiary only from and
after the date on which such Subsidiary is expressly designated as a Project
Finance Subsidiary to the Agent by written notice executed by an Authorized
Officer.
"Property" of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person.
"Pro Rata Share" means, with respect to a Lender, a portion equal to a
fraction the numerator of which is such Lender's Commitment at such time (in
each case, as adjusted from time to time in accordance with the provisions of
this Agreement) and the denominator of which is the Aggregate Commitment at such
time, or, if the Aggregate Commitment has been terminated, a fraction the
numerator of which is such Lender's Outstanding Credit Exposure at such time and
the denominator of which is the Aggregate Outstanding Credit Exposure at such
time.
"Purchasers" is defined in Section 12.3.1.
"Rate Management Obligations" of a Person means any and all unsatisfied or
undischarged obligations of such Person, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions therefor),
under (i) any and all Rate Management Transactions, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any Rate
Management Transactions.
"Rate Management Transaction" means any transaction whether linked to one
or more interest rates, foreign currencies, or equity prices, (including an
agreement with respect thereto) now existing or hereafter entered by the
Borrower or a Subsidiary (other than a Project Finance Subsidiary) which is a
rate swap, basis swap, forward rate transaction, equity or equity index
14
swap, equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
forward transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including any
option with respect to any of these transactions) or any combination thereof.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks, non-banks and non-broker lenders for the purpose
of purchasing or carrying margin stocks applicable to member banks of the
Federal Reserve System.
"Regulation X" means Regulation X of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA or the regulations issued under Section 4043 of ERISA, other than those
events as to which the thirty day notice period is waived under Sections .21,
..22, .23, .26, .27 or .28 of PBGC Reg. ss. 4043.
"Required Lenders" means Lenders in the aggregate having greater than fifty
percent (50%) of the Aggregate Commitment; provided that for purposes of
declaring the Loans to be due and payable pursuant to Article VIII and for all
purposes after the Loans have become due and payable pursuant to Article VIII
and the Aggregate Commitment has been terminated, "Required Lenders" shall mean
Lenders in the aggregate holding greater than fifty percent (50%) of the
Aggregate Outstanding Credit Exposure.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on
"Eurocurrency liabilities" (as defined in Regulation D).
"Revolving Advance" an Advance comprised of Revolving Loans.
"Revolving Credit Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans,
such Lender's LC Exposure and such Lender's Swingline Exposure at such time.
"Revolving Eurodollar Advance" means a Revolving Advance comprising a Loan
or Loans that bear interest at the Eurodollar Rate.
"Revolving Floating Rate Advance" means a Revolving Advance comprising a
Loan or Loans that bear interest at a Floating Rate.
15
"Revolving Loan" means, with respect to a Lender, such Lender's loan made
pursuant to its commitment to lend set forth in Section 2.1 (and any conversion
or continuation thereof).
"S&P" means Standard and Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor thereto.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless another
document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the Borrower
and its Subsidiaries, Property which represents more than 10% of the
consolidated assets of the Borrower and its Subsidiaries or property which is
responsible for more than 10% of the consolidated net sales or of the
consolidated net income of the Borrower and its Subsidiaries, in each case, as
would be shown in the consolidated financial statements of the Borrower and its
Subsidiaries as at the end of the four fiscal quarter period ending with the
fiscal quarter immediately prior to the fiscal quarter in which such
determination is made (or if financial statements have not been delivered
hereunder for that fiscal quarter which ends the four fiscal quarter period,
then the financial statements delivered hereunder for the quarter ending
immediately prior to that quarter).
"Swingline Exposure" means, at any time, the aggregate principal amount of
all Swingline Loans outstanding at such time. The Swingline Exposure of any
Lender at any time shall be its Pro Rata Share of the total Swingline Exposure
at such time; provided that if the Aggregate Commitment has been terminated such
Pro Rata Share shall be determined based on the Commitments most recently in
effect, but giving effect to any subsequent assignments.
"Swingline Lender" means JPMorgan Chase Bank, in its capacity as lender of
Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.5.
"Syndication Agent" means Barclays Bank.
16
"Taxes" means any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings, and any and all liabilities with respect to
the foregoing, but excluding Excluded Taxes.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Fixed Rate
Advance, Floating Rate Advance or Eurodollar Advance.
"Union Electric" means Union Electric Company d/b/a AmerenUE, a Missouri
corporation.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"USA Patriot Act" means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
1.2. Plural Forms. The foregoing definitions shall be equally applicable to
both the singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. Commitment. From and including the Closing Date and prior to the
Facility Termination Date, upon the satisfaction of the conditions precedent set
forth in Section 4.1 and 4.2, as applicable, each Lender severally and not
jointly agrees, on the terms and conditions set forth in this Agreement, to make
Revolving Loans to the Borrower from time to time in an amount not to exceed in
the aggregate at any one time outstanding of its Pro Rata Share of the Available
Aggregate Commitment; provided that at no time shall the Aggregate Outstanding
Credit Exposure hereunder exceed the Aggregate Commitment. Subject to the terms
of this Agreement, the Borrower may borrow, repay and reborrow Revolving Loans
at any time prior to the Facility Termination Date. The commitment of each
Lender to lend hereunder shall automatically expire on the Facility Termination
Date.
2.2. Required Payments; Termination. The Borrower hereby unconditionally
promises to pay (i) to the Agent for the account of each Lender the then unpaid
principal amount of each Revolving Loan on the Facility Termination Date, (ii)
to the Agent for the account of each Lender the then unpaid principal amount of
each Competitive Loan on the last day of the Interest Period applicable to such
Loan, which shall not be later than the Facility Termination Date and (iii) to
the Swingline Lender the then unpaid principal amount of each Swingline Loan on
the earlier of the Facility Termination Date and the fifth Business Day after
such Swingline Loan is made; provided that on each date that a Revolving Loan or
Competitive Loan is made, the Borrower shall repay all Swingline Loans then
outstanding. Notwithstanding the termination of the Commitments under this
Agreement on the Facility Termination Date, until all of the Obligations (other
than contingent indemnity obligations) shall have been fully paid and satisfied
and all financing arrangements among the Borrower and the Lenders hereunder and
under the
17
other Loan Documents shall have been terminated, all of the rights and remedies
under this Agreement and the other Loan Documents shall survive.
2.3. Loans. Each Advance hereunder shall consist of (a) Revolving Loans
made by the Lenders ratably in accordance with their Pro Rata Shares of the
Aggregate Commitment, (b) Competitive Loans or (c) Swingline Loans.
2.4. Competitive Bid Procedure. (a) Subject to the terms and conditions set
forth herein, from time to time during the period commencing on the Closing Date
and ending on the date immediately prior to the Facility Termination Date the
Borrower may request Competitive Bids and may (but shall not have any obligation
to) accept Competitive Bids and borrow Competitive Loans; provided that the
Aggregate Outstanding Credit Exposure at any time shall not exceed the Aggregate
Commitment.
To request Competitive Bids, the Borrower shall notify the Agent of such
request by telephone, in the case of a Eurodollar Advance, not later than 11:00
a.m., New York time, four Business Days before the date of the proposed Advance
and, in the case of a Fixed Rate Advance, not later than 10:00 a.m., New York
time, one Business Day before the date of the proposed Advance; provided that
the Borrower may submit up to (but not more than) two Competitive Bid Requests
on the same day, but a Competitive Bid Request shall not be made within five
Business Days after the date of any previous Competitive Bid Request, unless any
and all such previous Competitive Bid Requests shall have been withdrawn or all
Competitive Bids received in response thereto rejected. Each such telephonic
Competitive Bid Request shall be confirmed promptly by hand delivery or telecopy
to the Agent of a written Competitive Bid Request in a form approved by the
Agent and signed by the Borrower. Each such telephonic and written Competitive
Bid Request shall specify the following information:
(ii) the aggregate amount of the requested Advance;
(iii) the date of such Advance, which shall be a Business Day;
(iv) whether such Advance is to be a Eurodollar Rate Advance or a Fixed
Rate Advance; and
(v) the Interest Period to be applicable to such Advance, which shall
be a period contemplated by the definition of the term "Interest
Period".
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Agent shall notify the Lenders of the details thereof by telecopy,
inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one
or more Competitive Bids to the Borrower in response to a Competitive Bid
Request. Each Competitive Bid by a Lender must be in a form approved by the
Agent and must be received by the Agent by telecopy, in the case of a Eurodollar
Rate Advance, not later than 10:30 a.m., New York time, three Business Days
before the proposed date of such Advance, and in the case of a Fixed Rate
Advance, not later than 10:30 a.m., New York time, on the proposed date of such
Advance. Competitive Bids that do not conform substantially to the form approved
by the Agent may be
18
rejected by the Agent, and the Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be a minimum of $5,000,000 and an integral multiple of
$1,000,000 and which may equal the entire principal amount of the Advance
requested by the Borrower) of the Competitive Loan or Loans that the Lender is
willing to make, (ii) the Competitive Bid Rate or Rates at which the Lender is
prepared to make such Loan or Loans (expressed as a percentage rate per annum in
the form of a decimal to no more than four decimal places) and (iii) the
Interest Period applicable to each such Loan and the last day thereof.
(c) The Agent shall promptly notify the Borrower by telecopy of the
Competitive Bid Rate and the principal amount specified in each Competitive Bid
and the identity of the Lender that shall have made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Borrower
may accept or reject any Competitive Bid. The Borrower shall notify the Agent by
telephone, confirmed by telecopy in a form approved by the Agent, whether and to
what extent it has decided to accept or reject each Competitive Bid, in the case
of a Eurodollar Rate Advance, not later than 10:30 a.m., New York time, three
Business Days before the date of the proposed Advance, and in the case of a
Fixed Rate Advance, not later than 10:30 a.m., New York time, on the proposed
date of the Advance; provided that (i) the failure of the Borrower to give such
notice shall be deemed to be a rejection of each Competitive Bid, (ii) the
Borrower shall not accept a Competitive Bid made at a particular Competitive Bid
Rate if the Borrower rejects a Competitive Bid made at a lower Competitive Bid
Rate, (iii) the aggregate amount of the Competitive Bids accepted by the
Borrower shall not exceed the aggregate amount of the requested Advance
specified in the related Competitive Bid Request, (iv) to the extent necessary
to comply with clause (iii) above, the Borrower may accept Competitive Bids at
the same Competitive Bid Rate in part, which acceptance, in the case of multiple
Competitive Bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each such Competitive Bid, and (v) except pursuant
to clause (iv) above, no Competitive Bid shall be accepted for a Competitive
Loan unless such Competitive Loan is in a minimum principal amount of $5,000,000
and an integral multiple of $1,000,000; provided further that if a Competitive
Loan must be in an amount less than $5,000,000 because of the provisions of
clause (iv) above, such Competitive Loan may be for a minimum of $1,000,000 or
any integral multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple Competitive Bids at a particular Competitive
Bid Rate pursuant to clause (iv) the amounts shall be rounded to integral
multiples of $1,000,000 in a manner determined by the Borrower. A notice given
by the Borrower pursuant to this paragraph shall be irrevocable.
(e) The Agent shall promptly notify each bidding Lender by telecopy
whether or not its Competitive Bid has been accepted (and, if so, the amount and
Competitive Bid Rate so accepted), and each successful bidder will thereupon
become bound, subject to the terms and conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Agent shall elect to submit a Competitive Bid in its
capacity as a Lender, it shall submit such Competitive Bid directly to the
Borrower at least one quarter of an
19
hour earlier than the time by which the other Lenders are required to submit
their Competitive Bids to the Agent pursuant to paragraph (b) of this Section.
2.5. Swingline Loans. (a) Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from
time to time during the period commencing on the Closing Date and ending on the
date immediately prior to the Facility Termination Date, in an aggregate
principal amount at any time outstanding that will not result in (i) the
Combined Swingline Exposure exceeding $30,000,000 or (ii) the Aggregate
Outstanding Credit Exposure exceeding the Aggregate Commitment; provided that
the Swingline Lender shall not be required to make a Swingline Loan to refinance
an outstanding Swingline Loan. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Swingline Loans.
(b) Each Swingline Loan shall bear interest at (i) the rate per annum
applicable to Floating Rate Advances or (ii) any other rate per annum (computed
on the basis of the actual number of days elapsed over a year of 360 days) which
shall be quoted by the Swingline Lender on the date such Loan is made and
accepted by the Borrower as provided in this Section 2.5; provided, that
commencing on any date on which the Swingline Lender requires the Lenders to
acquire participations in a Swingline Loan pursuant to Section 2.5(d), such Loan
shall bear interest at the rate per annum applicable to Floating Rate Advances.
(c) To request a Swingline Loan, the Borrower shall notify the
Swingline Lender of such request by telephone (confirmed by telecopy), not later
than 12:00 noon, New York time, on the day of a proposed Swingline Loan. Each
such notice shall be irrevocable and shall specify the requested date (which
shall be a Business Day) and amount of the requested Swingline Loan and the
Interest Period to be applicable thereto. If so requested by the Borrower, the
Swingline Lender will quote an interest rate that, if accepted by the Borrower,
will be applicable to the requested Swingline Loan, and the Borrower will
promptly notify the Swingline Lender in the event it accepts such rate. The
Swingline Lender will promptly advise the Agent of any such notice received from
the Borrower. The Swingline Lender shall make each Swingline Loan available to
the Borrower by means of a credit to the general deposit account of the Borrower
with the Swingline Lender by 3:00 p.m., New York time, on the requested date of
such Swingline Loan.
(d) The Swingline Lender may by written notice given to the Agent not
later than 10:00 a.m., New York time, on any Business Day require the Lenders to
acquire participations on such Business Day in all or a portion of the Swingline
Loans outstanding. Such notice shall specify the aggregate amount of Swingline
Loans in which Lenders will participate. Promptly upon receipt of such notice,
the Agent will give notice thereof to each Lender, specifying in such notice
such Lender's Pro Rata Share of such Swingline Loan or Loans. Each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Agent, for the account of the Swingline Lender, such Lender's Pro
Rata Share of such Swingline Loan or Loans. Each Lender acknowledges and agrees
that its obligation to acquire participations in Swingline Loans pursuant to
this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever. Each
Lender shall
20
comply with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.11 with respect to
Loans made by such Lender (and Section 2.11 shall apply, mutatis mutandis, to
the payment obligations of the Lenders), and the Agent shall promptly pay to the
Swingline Lender the amounts so received by it from the Lenders. The Agent shall
notify the Borrower of any participation in any Swingline Loan acquired pursuant
to this paragraph, and thereafter payments in respect of such Swingline Loan
shall be made to the Agent and not to the Swingline Lender. Any amounts received
by the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participation therein shall be promptly remitted to
the Agent; any such amounts received by the Agent shall be promptly remitted by
the Agent to the Lenders that shall have made their payments pursuant to this
paragraph and to the Swingline Lender, as their interests may appear. The
purchase of participation in a Swingline Loan pursuant to this paragraph shall
not relieve the Borrower of any default in the payment thereof.
2.6. Letters of Credit.
(a) General. Subject to the terms and conditions set forth herein, the
Borrower may request the issuance of Letters of Credit for its own account, in a
form reasonably acceptable to the Agent and the applicable Issuing Bank, from
and including the Closing Date and prior to the Facility Termination Date. In
the event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Borrower to, or entered into by
the Borrower with, an Issuing Bank relating to any Letter of Credit, the terms
and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank) to
the applicable Issuing Bank and the Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice requesting
the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the date of issuance, amendment,
renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by the applicable
Issuing Bank, the Borrower also shall submit a letter of credit application on
such Issuing Bank's standard form in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued, amended, renewed or extended only if
(and upon issuance, amendment, renewal or extension of each Letter of Credit the
Borrower shall be deemed to represent and warrant that), after giving effect to
such issuance, amendment, renewal or extension (i) the Combined LC Exposure
shall not exceed $75,000,000 and (ii) the Aggregate Outstanding Credit Exposure
shall not exceed the Aggregate Commitment. If the Required Lenders notify the
Issuing Banks that a Default exists and instruct the Issuing Banks to suspend
the issuance, amendment, renewal or extension of Letters of Credit, no Issuing
Bank shall issue, amend, renew or extend any Letter of Credit without the
consent of the Required
21
Lenders until such notice is withdrawn by the Required Lenders (and each Lender
that shall have delivered such notice agrees promptly to withdraw it at such
time as no Default exists).
(c) Expiration Date. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date one year after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Facility Termination Date.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Lenders, such
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from
such Issuing Bank, a participation in such Letter of Credit equal to such
Lender's Pro Rata Share of the aggregate amount available to be drawn under such
Letter of Credit. In consideration and in furtherance of the foregoing, each
Lender hereby absolutely and unconditionally agrees to pay to the Agent, for the
account of such Issuing Bank, such Lender's Pro Rata Share of each LC
Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the
date due as provided in paragraph (e) of this Section, or of any reimbursement
payment required to be refunded to the Borrower for any reason. Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.
(e) Reimbursement. If an Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the Borrower shall reimburse such LC
Disbursement by paying to the Agent an amount equal to such LC Disbursement not
later than 12:00 noon, New York City time, on the date that such LC Disbursement
is made, if the Borrower shall have received notice of such LC Disbursement
prior to 10:00 a.m., New York City time, on such date, or, if such notice has
not been received by the Borrower prior to such time on such date, then not
later than 12:00 noon, New York City time, on (i) the Business Day that the
Borrower receives such notice, if such notice is received prior to 10:00 a.m.,
New York City time, on the day of receipt, or (ii) the Business Day immediately
following the day that the Borrower receives such notice, if such notice is not
received prior to such time on the day of receipt; provided that, if such LC
Disbursement is not less than $1,000,000, the Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with Section 2.1
or 2.5 that such payment be financed with a Floating Rate Advance or Swingline
Loan in an equivalent amount and, to the extent so financed, the Borrower's
obligation to make such payment shall be discharged and replaced by the
resulting Floating Rate Advance or Swingline Loan. If the Borrower fails to make
such payment when due, the Agent shall notify each Lender of the applicable LC
Disbursement, the payment then due from the Borrower in respect thereof and such
Lender's Pro Rata Share thereof. Promptly following receipt of such notice, each
Lender shall pay to the Agent its Pro Rata Share of the payment then due from
the Borrower, in the same manner as provided in Section 2.11 with respect to
Loans made by such Lender (and Section 2.11 shall apply, mutatis mutandis, to
the payment obligations of the Lenders), and the Agent shall promptly pay to
such Issuing Bank the amounts so received by it from the Lenders. Promptly
22
following receipt by the Agent of any payment from the Borrower pursuant to this
paragraph, the Agent shall distribute such payment to such Issuing Bank or, to
the extent that Lenders have made payments pursuant to this paragraph to
reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as their
interests may appear. Any payment made by a Lender pursuant to this paragraph to
reimburse an Issuing Bank for any LC Disbursement (other than the funding of a
Floating Rate Advance or a Swingline Loan as contemplated above) shall not
constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by an Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. None of
the Agent, the Lenders or the Issuing Banks, or any of their respective
affiliates, directors, officers or employees, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from
causes beyond the control of the applicable Issuing Bank; provided that the
foregoing shall not be construed to excuse an Issuing Bank from liability to the
Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
such Issuing Bank's failure to exercise care when determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree that, in the absence of gross
negligence or wilful misconduct on the part of an Issuing Bank (as finally
determined by a court of competent jurisdiction), an Issuing Bank shall be
deemed to have exercised care in each such determination. In furtherance of the
foregoing and without limiting the generality thereof and subject to any
non-waivable provisions of the laws and/or other rules to which a Letter of
Credit is subject, the parties agree that, with respect to documents presented
which appear on their face to be in substantial compliance with the terms of a
Letter of Credit, an Issuing Bank may, in its sole discretion, either accept and
make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The applicable Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. Such Issuing Bank shall
promptly notify the Agent and the
23
Borrower by telephone (confirmed by telecopy) of such demand for payment and
whether such Issuing Bank has made or will make an LC Disbursement thereunder;
provided that any failure to give or delay in giving such notice shall not
relieve the Borrower of its obligation to reimburse such Issuing Bank and the
Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If an Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to Floating Rate Advances;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.14 shall apply.
Interest accrued pursuant to this paragraph shall be for the account of such
Issuing Bank, except that interest accrued on and after the date of payment by
any Lender pursuant to paragraph (e) of this Section to reimburse such Issuing
Bank shall be for the account of such Lender to the extent of such payment.
(i) Cash Collateralization. If any Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the Agent
or the Required Lenders (or, if the maturity of the Loans has been accelerated,
Lenders with LC Exposures representing greater than 50% of the total LC
Exposure) demanding the deposit of cash collateral pursuant to this paragraph,
the Borrower shall deposit in an account with the Agent, in the name of the
Agent and for the benefit of the Lenders, an amount in cash equal to the LC
Exposure as of such date plus any accrued and unpaid interest thereon; provided
that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without
demand or other notice of any kind, upon the occurrence of any Default with
respect to the Borrower described in Sections 7.6 or 7.7. Such deposit shall be
held by the Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such deposits,
which investments shall be made at the option and sole discretion of the Agent
and at the Borrower's risk and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Agent to reimburse each
Issuing Bank for LC Disbursements for which it has not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or,
if the maturity of the Loans has been accelerated (but subject to the consent of
Lenders with LC Exposures representing greater than 50% of the total LC
Exposure), be applied to satisfy other obligations of the Borrower under this
Agreement. If the Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of a Default, such amount (to the extent
not applied as aforesaid) shall be returned to the Borrower within three
Business Days after all Defaults have been cured or waived.
(j) Designation of Additional Issuing Banks. From time to time, the
Borrower may by notice to the Agent and the Lenders designate as additional
Issuing Banks one or more Lenders that agree to serve in such capacity as
provided below. The acceptance by a Lender of any appointment as an Issuing Bank
hereunder shall be evidenced by an agreement (an "Issuing
24
Bank Agreement"), which shall be in a form satisfactory to the Borrower and the
Agent, shall set forth the LC Commitment of such Lender and shall be executed by
such Lender, the Borrower and the Agent and, from and after the effective date
of such agreement, (i) such Lender shall have all the rights and obligations of
an Issuing Bank under this Agreement and the other Loan Documents and (ii)
references herein and in the other Loan Documents to the term "Issuing Bank"
shall be deemed to include such Lender in its capacity as an Issuing Bank.
2.7. Types of Advances. Revolving Advances may be Floating Rate Advances or
Eurodollar Advances, or a combination thereof, selected by the Borrower in
accordance with Sections 2.10 and 2.11. Swingline Loans will be Floating Rate
Advances. Competitive Loans may be Eurodollar Rate Advances or Fixed Rate
Advances, or a combination thereof, selected by the Borrower in accordance with
Section 2.4.
2.8. Facility Fee; Letter of Credit Fees; Reductions in Aggregate
Commitment.
2.8.1 Facility Fee. The Borrower agrees to pay to the Agent for the
account of each Lender a facility fee (the "Facility Fee") at a per annum
rate equal to the Applicable Fee Rate on such Lender's Commitment (whether
used or unused) from and including the Closing Date to and including the
Facility Termination Date, payable quarterly in arrears on each Payment
Date hereafter and on the Facility Termination Date, provided that, if any
Lender continues to have Revolving Credit Exposure outstanding hereunder
after the termination of its Commitment (including, without limitation,
during any period when Loans or Letters of Credit may be outstanding but
new Loans or Letters of Credit may not be borrowed or issued hereunder),
then the Facility Fee shall continue to accrue on the aggregate principal
amount of the Revolving Credit Exposure of such Lender until such Lender
ceases to have any Revolving Credit Exposure.
2.8.2 Letter of Credit Fees. The Borrower agrees to pay (i) to the
Agent for the account of each Lender a participation fee with respect to
its participations in Letters of Credit (the "LC Participation Fee"), which
shall accrue at the Applicable Fee Rate on the average daily amount of such
Lender's LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Closing Date to but excluding the later of the date on which such Lender's
Commitment terminates and the date on which such Lender ceases to have any
LC Exposure, and (ii) to each Issuing Bank a fronting fee, which shall
accrue at the rate or rates per annum separately agreed upon between the
Borrower and such Issuing Bank on the average daily amount of the LC
Exposure attributable to Letters of Credit issued by such Issuing Bank
(excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Closing Date to but
excluding the later of the date of termination of the Commitments and the
date on which there ceases to be any LC Exposure, as well as each Issuing
Bank's standard fees with respect to the issuance, amendment, renewal or
extension of any Letter of Credit or processing of drawings thereunder. LC
Participation Fees and fronting fees accrued through and including the last
day of March, June, September and December of each year shall be payable on
the third Business Day following such last day, commencing on the first
such date to occur after the Closing Date; provided that all such fees
shall be payable on the Facility Termination Date and any such fees
accruing after the date on which the Commitments
25
terminate shall be payable on demand. Any other fees payable to an Issuing
Bank pursuant to this paragraph shall be payable promptly upon receipt of
an invoice therefor.
2.8.3 Reductions in Aggregate Commitment. The Borrower may permanently
reduce the Aggregate Commitment in whole, or in part, ratably among the
Lenders in integral multiples of $5,000,000, upon at least ten (10)
Business Days' written notice to the Agent, which notice shall specify the
amount of any such reduction, provided, however, that the amount of the
Aggregate Commitment may not be reduced below the Aggregate Outstanding
Credit Exposure. All accrued facility fees shall be payable on the
effective date of any termination of the obligations of the Lenders to make
Credit Extensions hereunder and on the final date upon which all Revolving
Loans are repaid.
2.9. Minimum Amount of Each Advance. Each Eurodollar Advance shall be in
the minimum amount of $5,000,000 (and in multiples of $1,000,000 if in excess
thereof), and each Floating Rate Advance shall be in the minimum amount of
$5,000,000 (and in multiples of $1,000,000 if in excess thereof), provided,
however, that any Floating Rate Advance may be in the amount of the Available
Aggregate Commitment.
2.10. Optional Principal Payments. The Borrower may from time to time pay,
without penalty or premium, all outstanding Floating Rate Advances, or any
portion of the outstanding Floating Rate Advances, in a minimum aggregate amount
of $5,000,000 or any integral multiple of $1,000,000 in excess thereof, upon one
(1) Business Day's prior notice to the Agent. The Borrower may from time to time
pay, subject to the payment of any funding indemnification amounts required by
Section 3.4 but without penalty or premium, all outstanding Eurodollar Advances,
or, in a minimum aggregate amount of $5,000,000 or any integral multiple of
$1,000,000 in excess thereof, any portion of the outstanding Eurodollar Advances
upon three (3) Business Days' prior notice to the Agent; provided that no
Competitive Loan may be prepaid without the consent of the applicable Lender.
2.11. Method of Selecting Types and Interest Periods for New Revolving
Advances. The Borrower shall select the Type of Revolving Advance and, in the
case of each Revolving Eurodollar Advance, the Interest Period applicable
thereto from time to time; provided that there shall be no more than five (5)
Interest Periods in effect with respect to all of the Revolving Loans at any
time, unless such limit has been waived by the Agent in its sole discretion. The
Borrower shall give the Agent irrevocable notice (a "Borrowing Notice") not
later than 11:00 a.m. (New York time) on the Borrowing Date of each Revolving
Floating Rate Advance and three Business Days before the Borrowing Date for each
Revolving Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Interest Period applicable
thereto.
The Agent shall provide written notice of each request for borrowing under this
Section 2.11 by 11:00 a.m. (New York time) (or, if later, within one hour after
receipt of the applicable
26
Borrowing Notice from the Borrower) on each Borrowing Date for each Floating
Rate Advance or on the third Business Day prior to each Borrowing Date for each
Eurodollar Advance, as applicable. Not later than 1:00 p.m. (New York time) on
each Borrowing Date, each Lender shall make available its Revolving Loan or
Revolving Loans in Federal or other funds immediately available in New York to
the Agent at its address specified pursuant to Article XIII. The Agent will
promptly make the funds so received from the Lenders available to the Borrower
at the Agent's aforesaid address.
2.12. Conversion and Continuation of Outstanding Revolving Advances; No
Conversion or Continuation of Revolving Eurodollar Advances After Default.
Revolving Floating Rate Advances shall continue as Floating Rate Advances unless
and until such Revolving Floating Rate Advances are converted into Revolving
Eurodollar Advances pursuant to this Section 2.12 or are repaid in accordance
with Section 2.10. Each Revolving Eurodollar Advance shall continue as a
Eurodollar Advance until the end of the then applicable Interest Period
therefor, at which time such Revolving Eurodollar Advance shall be automatically
converted into a Revolving Floating Rate Advance unless (x) such Revolving
Eurodollar Advance is or was repaid in accordance with Section 2.10 or (y) the
Borrower shall have given the Agent a Conversion/Continuation Notice (as defined
below) requesting that, at the end of such Interest Period, such Revolving
Eurodollar Advance continue as a Revolving Eurodollar Advance for the same or
another Interest Period. Subject to the terms of Section 2.9, the Borrower may
elect from time to time to convert all or any part of a Revolving Advance of any
Type into any other Type or Types of Advances; provided that any conversion of
any Revolving Eurodollar Advance shall be made on, and only on, the last day of
the Interest Period applicable thereto. Notwithstanding anything to the contrary
contained in this Section 2.12, during the continuance of a Default or an
Unmatured Default, the Agent may (or shall at the direction of the Required
Lenders), by notice to the Borrower, declare that no Revolving Advance may be
made, converted or continued as a Eurodollar Advance. The Borrower shall give
the Agent irrevocable notice (a "Conversion/Continuation Notice") of each
conversion of a Revolving Advance or continuation of a Revolving Eurodollar
Advance not later than 11:00 a.m. (New York time) at least one (1) Business Day,
in the case of a conversion into a Revolving Floating Rate Advance, or three (3)
Business Days, in the case of a conversion into or continuation of a Revolving
Eurodollar Advance, prior to the date of the requested conversion or
continuation, specifying:
(i) the requested date, which shall be a Business Day, of such conversion
or continuation,
(ii) the aggregate amount and Type of the Advance which is to be converted
or continued, and
(iii)the amount of such Advance which is to be converted into or continued
as a Eurodollar Advance and the duration of the Interest Period
applicable thereto.
This Section shall not apply to Competitive Loans or Swingline Loans, which may
not be converted or continued.
2.13. Changes in Interest Rate, etc. Each Floating Rate Advance shall bear
interest on the outstanding principal amount thereof, for each day from and
including the date such Advance
27
is made or is automatically converted from a Eurodollar Advance into a Floating
Rate Advance pursuant to Section 2.12, to but excluding the date it is paid or
is converted into a Eurodollar Advance pursuant to Section 2.12 hereof, at a
rate per annum equal to the Floating Rate for such day. Changes in the rate of
interest on that portion of any Advance maintained as a Floating Rate Advance
will take effect simultaneously with each change in the Alternate Base Rate.
Each Eurodollar Advance shall bear interest on the outstanding principal amount
thereof from and including the first day of the Interest Period applicable
thereto to (but not including) the last day of such Interest Period at the
Eurodollar Rate determined by the Agent as applicable to such Eurodollar Advance
based upon the Borrower's selections under Sections 2.10 and 2.11 and otherwise
in accordance with the terms hereof. No Interest Period may end after the
Facility Termination Date. Each Fixed Rate Advance shall bear interest at the
Fixed Rate applicable thereto.
2.14. Rates Applicable After Default. During the continuance of a Default
(including the Borrower's failure to pay any Loan when due, whether upon stated
maturity, acceleration or otherwise) the Required Lenders may, at their option,
by notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that (i)
each Eurodollar Advance shall bear interest for the remainder of the applicable
Interest Period at the rate otherwise applicable to such Interest Period plus 2%
per annum and (ii) each Floating Rate Advance shall bear interest at a rate per
annum equal to the Floating Rate in effect from time to time plus 2% per annum,
provided that, during the continuance of a Default under Section 7.6 or 7.7, the
interest rates set forth in clauses (i) and (ii) above shall be applicable to
all Advances, fees and other Obligations hereunder without any election or
action on the part of the Agent or any Lender.
2.15. Funding of Loans; Method of Payment. All payments of the Obligations
hereunder shall be made, without setoff, deduction, or counterclaim, in
immediately available funds to the Agent at the Agent's address specified
pursuant to Article XIII, or at any other Lending Installation of the Agent
specified in writing by the Agent to the Borrower, by 12:00 noon (New York time)
on the date when due and shall be applied ratably by the Agent among the
Lenders. Each payment delivered to the Agent for the account of any Lender shall
be delivered promptly by the Agent to such Lender in the same type of funds that
the Agent received at its address specified pursuant to Article XIII or at any
Lending Installation specified in a notice received by the Agent from such
Lender. The Agent is hereby authorized to charge the account of the Borrower
maintained with JPMCB for each payment of principal, interest and fees as it
becomes due hereunder.
2.16. Noteless Agreement; Evidence of Indebtedness. (i) Each Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder.
(ii) The Agent shall also maintain accounts in which it will record (a) the
date and the amount of each Loan made hereunder, the Type thereof and
the Interest Period (in the case of an Eurodollar Advance) with
respect thereto, (b) the amount of any
28
principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder, (c) the effective date and
amount of each Assignment Agreement delivered to and accepted by it
and the parties thereto pursuant to Section 12.3, (d) the amount of
any sum received by the Agent hereunder from the Borrower and each
Lender's share thereof, and (e) all other appropriate debits and
credits as provided in this Agreement, including, without limitation,
all fees, charges, expenses and interest.
(iii) The entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be prima facie evidence absent
manifest error of the existence and amounts of the Obligations therein
recorded; provided, however, that the failure of the Agent or any
Lender to maintain such accounts or any error therein shall not in any
manner affect the obligation of the Borrower to repay the Obligations
in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by a promissory
note in substantially the form of Exhibit E (a "Note"). In such event,
the Borrower shall prepare, execute and deliver to such Lender such
Note payable to the order of such Lender. Thereafter, the Loans
evidenced by such Note and interest thereon shall at all times (prior
to any assignment pursuant to Section 12.3) be represented by one or
more Notes payable to the order of the payee named therein, except to
the extent that any such Lender subsequently returns any such Note for
cancellation and requests that such Loans once again be evidenced as
described in paragraphs (i) and (ii) above.
2.17. Telephonic Notices. The Borrower hereby authorizes the Lenders and
the Agent to extend, convert or continue Advances, effect selections of Types of
Advances and to transfer funds based on telephonic notices made by any person or
persons the Agent or any Lender in good faith believes to be acting on behalf of
the Borrower, it being understood that the foregoing authorization is
specifically intended to allow Borrowing Notices and Conversion/Continuation
Notices to be given telephonically. The Borrower agrees to deliver promptly to
the Agent a written confirmation, signed by an Authorized Officer, if such
confirmation is requested by the Agent or any Lender, of each telephonic notice.
If the written confirmation differs in any material respect from the action
taken by the Agent and the Lenders, the records of the Agent and the Lenders
shall govern absent manifest error.
2.18. Interest Payment Dates; Interest and Fee Basis. Interest accrued on
each Floating Rate Advance shall be payable in arrears on each Payment Date,
commencing with the first such date to occur after the Closing Date, on any date
on which the Floating Rate Advance is prepaid, whether due to acceleration or
otherwise, and at maturity. Interest accrued on that portion of the outstanding
principal amount of any Floating Rate Advance converted into a Eurodollar
Advance on a day other than a Payment Date shall be payable on the date of
conversion. Interest accrued on each Eurodollar Advance shall be payable on the
last day of its applicable Interest Period, on any date on which the Eurodollar
Advance is prepaid, whether by acceleration or otherwise, and at maturity.
Interest accrued on each Eurodollar Advance having an Interest Period longer
than three months shall also be payable on the last day of each three-month
interval during such Interest Period. Interest accrued on each Fixed Rate Loan
shall be payable on the last day of the
29
Interest Period applicable to the Advance of which such Loan is a part and, in
the case of a Fixed Rate Advance with an Interest Period of more than 90 days'
duration (unless otherwise specified in the applicable Competitive Bid Request),
each day prior to the last day of such Interest Period that occurs at intervals
of 90 days' duration after the first day of such Interest Period, and any other
dates that are specified in the applicable Competitive Bid Request as dates for
payment of interest with respect to such Advance. Interest accrued on each
Swingline Loan shall be payable on the day that such Loan is required to be
repaid. Interest accrued on any Advance that is not paid when due shall be
payable on demand and on the date of payment in full. Interest on Eurodollar
Advances, Fixed Rate Loans and fees hereunder shall be calculated for actual
days elapsed on the basis of a 360-day year. Interest on Floating Rate Advances
shall be calculated for actual days elapsed on the basis of a 365/366-day year.
Interest shall be payable for the day an Advance is made but not for the day of
any payment on the amount paid if payment is received prior to 12:00 noon (New
York time) at the place of payment. If any payment of principal of or interest
on an Advance, any fees or any other amounts payable to the Agent or any Lender
hereunder shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and, in the case of principal
payment, such extension of time shall be included in computing interest, fees
and commissions in connection with such payment.
2.19. Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions; Availability of Loans. Promptly after receipt thereof, the Agent
will notify each Lender in writing of the contents of each Aggregate Commitment
reduction notice, Borrowing Notice, Conversion/Continuation Notice, and
repayment notice received by it hereunder. The Agent will notify the Borrower
and each Lender of the interest rate applicable to each Revolving Eurodollar
Advance promptly upon determination of such interest rate and will give the
Borrower and each Lender prompt notice of each change in the Alternate Base
Rate.
2.20. Lending Installations. Each Lender may book its Loans at any Lending
Installation selected by such Lender and may change its Lending Installation
from time to time. All terms of this Agreement shall apply to any such Lending
Installation and the Loans and any Notes issued hereunder shall be deemed held
by each Lender for the benefit of any such Lending Installation. Each Lender
may, by written notice to the Agent and the Borrower in accordance with Article
XIII, designate replacement or additional Lending Installations through which
Loans will be made by it and for whose account Loan payments are to be made.
2.21. Non-Receipt of Funds by the Agent. Unless the Borrower or a Lender,
as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day
30
for the first three days and, thereafter, the interest rate applicable to the
relevant Loan or (y) in the case of payment by the Borrower, the interest rate
applicable to the relevant Loan.
2.22. Replacement of Lender. If the Borrower is required pursuant to
Section 3.1, 3.2 or 3.5 to make any additional payment to any Lender or if any
Lender's obligation to make or continue, or to convert Floating Rate Advances
into, Eurodollar Advances shall be suspended pursuant to Section 3.3 (any Lender
so affected an "Affected Lender"), the Borrower may elect, if such amounts
continue to be charged or such suspension is still effective, to terminate or
replace the Commitment of such Affected Lender, provided that no Default or
Unmatured Default shall have occurred and be continuing at the time of such
termination or replacement, and provided further that, concurrently with such
termination or replacement, (i) if the Affected Lender is being replaced,
another bank or other entity which is reasonably satisfactory to the Borrower
and the Agent shall agree, as of such date, to purchase for cash the Outstanding
Credit Exposure of the Affected Lender pursuant to an Assignment Agreement
substantially in the form of Exhibit C and to become a Lender for all purposes
under this Agreement and to assume all obligations of the Affected Lender to be
terminated as of such date and to comply with the requirements of Section 12.3
applicable to assignments, and (ii) the Borrower shall pay to such Affected
Lender in immediately available funds on the day of such replacement (A) all
interest, fees and other amounts then accrued but unpaid to such Affected Lender
by the Borrower hereunder to and including the date of termination, including
without limitation payments due to such Affected Lender under Sections 3.1, 3.2
and 3.5, and (B) an amount, if any, equal to the payment which would have been
due to such Lender on the day of such replacement under Section 3.4 had the
Loans of such Affected Lender been prepaid on such date rather than sold to the
replacement Lender, in each case to the extent not paid by the purchasing lender
and (iii) if the Affected Lender is being terminated, the Borrower shall pay to
such Affected Lender all Obligations due to such Affected Lender (including the
amounts described in the immediately preceding clauses (i) and (ii) plus the
outstanding principal balance of such Affected Lender's Advances and the amount
of such Lender's funded participations in unreimbursed LC Disbursements).
Notwithstanding the foregoing, the Borrower may not terminate the Commitment of
an Affected Lender if, after giving effect to such termination, the Aggregate
Outstanding Credit Exposure would exceed the Aggregate Commitment.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. Yield Protection. If, on or after the Closing Date, the adoption of
any law or any governmental or quasi-governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law), or any change
in any such law, rule, regulation, policy, guideline or directive or in the
interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
31
3.1.1 subjects any Lender or any applicable Lending Installation to
any Taxes, or changes the basis of taxation of payments (other than with
respect to Excluded Taxes) to any Lender in respect of its Eurodollar
Loans, or
3.1.2 imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended
by, any Lender or any applicable Lending Installation (other than reserves
and assessments taken into account in determining the interest rate
applicable to Eurodollar Advances), or
3.1.3 imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation of making,
funding or maintaining its Commitment, Eurodollar Loans or Fixed Rate Loans
or reduces any amount receivable by any Lender or any applicable Lending
Installation in connection with its Commitment, Eurodollar Loans or Fixed
Rate Loans, or requires any Lender or any applicable Lending Installation
to make any payment calculated by reference to the amount of Commitment,
Eurodollar Loans or Fixed Rate Loans held or interest received by it, by an
amount deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation of making or maintaining its Commitment,
Eurodollar Loans or Fixed Rate Loans or to reduce the return received by such
Lender or applicable Lending Installation in connection with such Commitment,
Eurodollar Loans or Fixed Rate Loans, then, within 15 days of demand,
accompanied by the written statement required by Section 3.6, by such Lender,
the Borrower shall pay such Lender such additional amount or amounts as will
compensate such Lender for such increased cost or reduction in amount received.
3.2. Changes in Capital Adequacy Regulations. If a Lender determines the
amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a Change, then, within 15 days of demand,
accompanied by the written statement required by Section 3.6, by such Lender,
the Borrower shall pay such Lender the amount necessary to compensate for any
shortfall in the rate of return on the portion of such increased capital which
such Lender determines is attributable to this Agreement, its Outstanding Credit
Exposure or its Commitment hereunder (after taking into account such Lender's
policies as to capital adequacy). "Change" means (i) any change after the
Closing Date in the Risk-Based Capital Guidelines or (ii) any adoption of, or
change in, or change in the interpretation or administration of any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
Closing Date which affects the amount of capital required or expected to be
maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines" means (i) the risk-based
capital guidelines in effect in the United States on the Closing Date, including
transition rules, and (ii) the corresponding capital regulations promulgated by
regulatory authorities outside the United States implementing the July 1988
report of the Basle Committee on Banking Regulation and Supervisory Practices
Entitled "International Convergence of Capital Measurements and Capital
Standards," including transition rules, and any amendments to such regulations
adopted prior to the Closing Date.
32
3.3. Availability of Types of Advances. If (x) any Lender determines that
maintenance of its Eurodollar Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or (y) the Required Lenders determine that (i) deposits
of a type and maturity appropriate to match fund Eurodollar Advances are not
available or (ii) the interest rate applicable to Eurodollar Advances does not
accurately reflect the cost of making or maintaining Eurodollar Advances, or
(iii) no reasonable basis exists for determining the Eurodollar Base Rate, then
the Agent shall suspend the availability of Eurodollar Advances and require any
affected Eurodollar Advances to be repaid or converted to Floating Rate Advances
on the respective last days of the then current Interest Periods with respect to
such Loans or within such earlier period as required by law, subject to the
payment of any funding indemnification amounts required by Section 3.4.
3.4. Funding Indemnification. If any payment of a Eurodollar Advance or a
Fixed Rate Loan occurs on a date which is not the last day of the applicable
Interest Period, whether because of acceleration, prepayment or otherwise, or a
Eurodollar Advance is not made or continued, a Fixed Rate Loan is not made or a
Floating Rate Advance is not converted into a Eurodollar Advance, on the date
specified by the Borrower for any reason other than default by the Lenders, or a
Eurodollar Advance or Fixed Rate Loan is not prepaid on the date specified by
the Borrower for any reason, the Borrower will indemnify each Lender for any
loss or cost incurred by it resulting therefrom, including, without limitation,
any loss or cost in liquidating or employing deposits acquired to fund or
maintain such Eurodollar Advance or Fixed Rate Loan.
3.5. Taxes. (i) All payments by the Borrower to or for the account of any
Lender or the Agent hereunder or under any Note shall be made free and clear of
and without deduction for any and all Taxes. If the Borrower shall be required
by law to deduct any Taxes from or in respect of any sum payable hereunder to
any Lender or the Agent, (a) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section 3.5) such Lender or the Agent (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (b) the Borrower shall make such deductions, (c) the
Borrower shall pay the full amount deducted to the relevant authority in
accordance with applicable law and (d) the Borrower shall furnish to the Agent
the original copy of a receipt evidencing payment thereof or, if a receipt
cannot be obtained with reasonable efforts, such other evidence of payment as is
reasonably acceptable to the Agent, in each case within 30 days after such
payment is made.
(ii) In addition, the Borrower shall pay any present or future stamp or
documentary taxes and any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under
any Note or from the execution or delivery of, or otherwise with
respect to, this Agreement or any Note ("Other Taxes").
(iii)The Borrower shall indemnify the Agent and each Lender for the full
amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed on amounts payable under this Section
3.5) paid by the Agent or such Lender as a result of its Commitment,
any Credit Extensions made by it hereunder, or otherwise in connection
with its participation in this Agreement and any liability (including
penalties, interest and expenses) arising therefrom or with
33
respect thereto. Payments due under this indemnification shall be made
within 30 days of the date the Agent or such Lender makes demand
therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (each a "Non-U.S. Lender") agrees
that it will, not more than ten Business Days after the date on which
it becomes a party to this Agreement (but in any event before a
payment is due to it hereunder), (i) deliver to each of the Borrower
and the Agent two duly completed copies of United States Internal
Revenue Service Form W-8BEN or W-8ECI, certifying in either case that
such Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income
taxes, or (ii) in the case of a Non-U.S. Lender that is fiscally
transparent, deliver to the Agent a United States Internal Revenue
Form W-8IMY together with the applicable accompanying forms, W-8 or
W-9, as the case may be, and certify that it is entitled to an
exemption from United States withholding tax. Each Non-U.S. Lender
further undertakes to deliver to each of the Borrower and the Agent
(x) renewals or additional copies of such form (or any successor form)
on or before the date that such form expires or becomes obsolete, and
(y) after the occurrence of any event requiring a change in the most
recent forms so delivered by it, such additional forms or amendments
thereto as may be reasonably requested by the Borrower or the Agent.
All forms or amendments described in the preceding sentence shall
certify that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States
federal income taxes, unless an event (including without limitation
any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent such Lender
from duly completing and delivering any such form or amendment with
respect to it and such Lender advises the Borrower and the Agent that
it is not capable of receiving payments without any deduction or
withholding of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to provide
the Borrower with an appropriate form pursuant to clause (iv) above
(unless such failure is due to a change in treaty, law or regulation,
or any change in the interpretation or administration thereof by any
governmental authority, occurring subsequent to the date on which such
Non-U.S. Lender became a party to this Agreement), such Non-U.S.
Lender shall not be entitled to indemnification under this Section 3.5
with respect to Taxes imposed by the United States; provided that,
should a Non-U.S. Lender which is otherwise exempt from or
subject to a reduced rate of withholding tax become subject to Taxes
because of its failure to deliver a form required under clause (iv)
above, the Borrower shall take such steps as such Non-U.S. Lender
shall reasonably request to assist such Non-U.S. Lender to recover
such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any
Note pursuant to the law of
34
any relevant jurisdiction or any treaty shall deliver to the Borrower
(with a copy to the Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made
without withholding or at a reduced rate.
(vii)If the U.S. Internal Revenue Service or any other governmental
authority of the United States or any other country or any political
subdivision thereof asserts a claim that the Agent did not properly
withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered or properly completed,
because such Lender failed to notify the Agent of a change in
circumstances which rendered its exemption from withholding
ineffective, or for any other reason), such Lender shall indemnify the
Agent fully for all amounts paid, directly or indirectly, by the Agent
as tax, withholding therefor, or otherwise, including penalties and
interest, and including taxes imposed by any jurisdiction on amounts
payable to the Agent under this subsection, together with all
reasonable costs and expenses related thereto (including attorneys'
fees and time charges of attorneys for the Agent, which attorneys may
be employees of the Agent). The obligations of the Lenders under this
Section 3.5(vii) shall survive the payment of the Obligations and
termination of this Agreement.
3.6. Lender Statements; Survival of Indemnity. Each Lender shall deliver a
written statement of such Lender to the Borrower (with a copy to the Agent) as
to the amount due, if any, under Section 3.1, 3.2, 3.4 or 3.5. Such written
statement shall set forth in reasonable detail the calculations upon which such
Lender determined such amount and shall be final, conclusive and binding on the
Borrower in the absence of manifest error, and upon reasonable request of the
Borrower, such Lender shall promptly provide supporting documentation describing
and/or evidence of the applicable event giving rise to such amount to the extent
not inconsistent with such Lender's policies or applicable law. Determination of
amounts payable under such Sections in connection with a Eurodollar Loan shall
be calculated as though each Lender funded its Eurodollar Loan through the
purchase of a deposit of the type, currency and maturity corresponding to the
deposit used as a reference in determining the Eurodollar Rate applicable to
such Loan, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement of any Lender shall be
payable on demand after receipt by the Borrower of such written statement. The
obligations of the Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive
payment of the Obligations and termination of this Agreement.
3.7. Alternative Lending Installation. To the extent reasonably possible,
each Lender shall designate an alternate Lending Installation with respect to
its Eurodollar Loans to reduce any liability of the Borrower to such Lender
under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of Eurodollar
Advances under Section 3.3, so long as such designation is not, in the judgment
of such Lender, disadvantageous to such Lender. A Lender's designation of an
alternative Lending Installation shall not affect the Borrower's rights under
Section 2.22 to replace a Lender.
35
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Credit Extension. The Lenders and the Issuing Banks shall not
be required to make the initial Credit Extension hereunder unless the following
conditions precedent have been satisfied and the Borrower has furnished to the
Agent with sufficient copies for the Lenders and the Issuing Banks:
4.1.1 Copies of the articles or certificate of incorporation of the
Borrower, together with all amendments thereto, and a certificate of good
standing, each certified by the appropriate governmental officer in its
jurisdiction of incorporation.
4.1.2 Copies, certified by the Secretary or Assistant Secretary of the
Borrower, of its by-laws and of its Board of Directors' resolutions and of
resolutions or actions of any other body authorizing the execution of the
Loan Documents to which the Borrower is a party.
4.1.3 An incumbency certificate, executed by the Secretary or
Assistant Secretary of the Borrower, which shall identify by name and title
and bear the signatures of the Authorized Officers and any other officers
of the Borrower authorized to sign the Loan Documents to which the Borrower
is a party, upon which certificate the Agent and the Lenders shall be
entitled to rely until informed of any change in writing by the Borrower.
4.1.4 A certificate, signed by the Chairman, Chief Executive Officer,
President, Executive Vice President, Chief Financial Officer, any Senior
Vice President, any Vice President or the Treasurer of the Borrower,
stating that on the initial Credit Extension Date (a) no Default or
Unmatured Default has occurred and is continuing, (b) all of the
representations and warranties in Article V shall be true and correct in
all material respects as of such date and (c) no material adverse change in
the business, financial condition or operations of the Borrower and its
Subsidiaries, taken as a whole, has occurred since December 31, 2003 except
for the Disclosed Matters.
4.1.5 A written opinion of the Borrower's counsel, in form and
substance satisfactory to the Agent and addressed to the Lenders, in
substantially the form of Exhibit A.
4.1.6 Any Notes requested by a Lender pursuant to Section 2.16 payable
to the order of each such requesting Lender.
4.1.7 Written money transfer instructions, in substantially the form
of Exhibit D, addressed to the Agent and signed by an Authorized Officer,
together with such other related money transfer authorizations as the Agent
may have reasonably requested.
4.1.8 The Agent shall have determined that (i) there is an absence of
any material adverse change or disruption in primary or secondary loan
syndication markets, financial markets or in capital markets generally that
would likely impair syndication of the Loans hereunder, and (ii) the
Borrower has fully cooperated with the Agent's syndication
36
efforts, including, without limitation, by providing the Agent with
information regarding the Borrower's operations and prospects and such
other information as the Agent deems necessary to successfully syndicate
the Loans hereunder.
4.1.9 Evidence satisfactory to the Agent that the Existing Credit
Agreements shall have been or shall simultaneously with the effectiveness
of this Agreement on the Closing Date be terminated (except for those
provisions that expressly survive the termination thereof) and all loans
outstanding, if any, and other amounts owed to the lenders or agents
thereunder shall have been, or shall simultaneously with the effectiveness
of this Agreement, paid in full.
4.1.10 Evidence satisfactory to the Agent that the Five-Year Credit
Agreement shall have been duly executed by all parties thereto.
4.1.11 All documentation and other information that any Lender shall
reasonably have requested in order to comply with its ongoing obligations
under applicable "know your customer" and anti-money laundering rules and
regulations, including the USA Patriot Act.
4.1.12 Such other documents as any Lender or its counsel may have
reasonably requested.
4.2. Each Credit Extension. The Lenders and the Issuing Banks shall not be
required to make any Credit Extension unless on the applicable Credit Extension
Date:
4.2.1 There exists no Default or Unmatured Default.
4.2.2 The representations and warranties contained in Article V are
true and correct as of such Credit Extension Date except to the extent any
such representation or warranty is stated to relate solely to an earlier
date, in which case such representation or warranty shall have been true
and correct on and as of such earlier date.
4.2.3 All legal matters incident to the making of such Advance shall
be satisfactory to the Lenders and their counsel.
4.2.4 In the case of any Credit Extension which would (i) be made
after June 30, 2007, (ii) cause the aggregate principal amount of
short-term Indebtedness of the Borrower to exceed $1,500,000,000, or (iii)
cause the aggregate principal amount of issuances and sales by the Borrower
of capital stock, preferred stock, the other securities specified in the
SEC order referred to in Section 5.18 and long-term Indebtedness to exceed
$2,500,000,000, such Credit Extension shall have been duly authorized by an
order of the Securities and Exchange Commission and the Agent shall have
received a true and complete copy of such order authorizing such Credit
Extension.
Each Borrowing Notice or request for the issuance of a Letter of Credit
with respect to each such Credit Extension shall constitute a representation and
warranty by the Borrower that the conditions contained in Sections 4.2.1, 4.2.2,
4.2.3 and 4.2.4 have been satisfied. Any
37
Lender or Issuing Bank may require a duly completed compliance certificate in
substantially the form of Exhibit B as a condition to making a Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each Lender, each Issuing Bank and
the Agent as of each of (i) the Closing Date, (ii) the date of the initial
Credit Extension hereunder (if different from the Closing Date) and (iii) each
date as required by Section 4.2:
5.1. Existence and Standing. Each of the Borrower and its Subsidiaries is a
corporation, partnership (in the case of Subsidiaries only) or limited liability
company duly and properly incorporated or organized, as the case may be, validly
existing and (to the extent such concept applies to such entity) in good
standing under the laws of its jurisdiction of incorporation or organization and
has all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
5.2. Authorization and Validity. The Borrower has the power and authority
and legal right to execute and deliver the Loan Documents and to perform its
obligations thereunder. The execution and delivery by the Borrower of the Loan
Documents and the performance of its obligations thereunder have been duly
authorized by proper proceedings, and the Loan Documents to which the Borrower
is a party constitute legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their terms, except as
enforceability may be limited by (i) bankruptcy, insolvency, fraudulent
conveyances, reorganization or similar laws relating to or affecting the
enforcement of creditors' rights generally; (ii) general equitable principles
(whether considered in a proceeding in equity or at law) and (iii) requirements
of reasonableness, good faith and fair dealing.
5.3. No Conflict; Government Consent. Neither the execution and delivery by
the Borrower of the Loan Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
(i) any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on the Borrower or any of its Subsidiaries or (ii) the Borrower's
or any Subsidiary's articles or certificate of incorporation, partnership
agreement, certificate of partnership, articles or certificate of organization,
by-laws, or operating agreement or other management agreement, as the case may
be, or (iii) the provisions of any indenture, instrument or agreement to which
the Borrower or any of its Subsidiaries is a party or is subject, or by which
it, or its Property, is bound, or conflict with, or constitute a default under,
or result in, or require, the creation or imposition of any Lien in, of or on
the Property of the Borrower or a Subsidiary pursuant to the terms of, any such
indenture, instrument or agreement. No order, consent, adjudication, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, or other action in respect of any governmental or public
body or authority, or any subdivision thereof, which has not been obtained by
the Borrower or any of its Subsidiaries, is required to be obtained by the
Borrower or any of its Subsidiaries in connection with the execution and
delivery of the Loan Documents, the borrowings under this Agreement, the payment
and performance by the Borrower of the
38
Obligations or the legality, validity, binding effect or enforceability of any
of the Loan Documents.
5.4. Financial Statements. The December 31, 2003 consolidated financial
statements of the Borrower and its Subsidiaries included in the Borrower's Form
10-K for the fiscal year ended December 31, 2003 and the March 31, 2004
consolidated financial statements of the Borrower and its Subsidiaries included
in the Borrower's Form 10-Q for the quarterly period ended March 31, 2004
heretofore delivered to the Agent and the Lenders, in each case, were prepared
in accordance with generally accepted accounting principles in effect on the
date such statements were prepared (except for the absence of footnotes and
subject to year end audit adjustments) and fairly present the consolidated
financial condition and operations of the Borrower and its Subsidiaries at such
date and the consolidated results of their operations for the period then ended.
5.5. Material Adverse Change. Since December 31, 2003, there has been no
change in the business, Property, condition (financial or otherwise) or results
of operations of the Borrower and its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect (a "Material Adverse Change"), except
for the Disclosed Matters; provided, however, that neither (i) any ratings
downgrade applicable to the Indebtedness of the Borrower or any of its
Subsidiaries by ▇▇▇▇▇'▇ or S&P nor (ii) the Borrower's or any of its
Subsidiaries' inability to place commercial paper in the capital markets, shall,
in and of themselves, be deemed events constituting a Material Adverse Change.
5.6. Taxes. The Borrower and its Subsidiaries (and to the best knowledge of
the Borrower with respect to entities acquired pursuant to the IP Acquisition
and taxable periods ending on or before January 1, 2003 for CILCORP and its
subsidiaries) have filed all United States federal tax returns and all other tax
returns which are required to be filed and have paid all taxes due pursuant to
said returns or pursuant to any assessment received by the Borrower or any of
its Subsidiaries, except in respect of such taxes, if any, as are being
contested in good faith and as to which adequate reserves have been provided in
accordance with Agreement Accounting Principles and as to which no Lien exists
(except as permitted by Section 6.13.1). The Internal Revenue Service has
completed audits of the United States federal income tax returns filed by Union
Electric for all periods through the calendar taxable year ending December 31,
1997 and by CIPSCO, Inc. for all periods through the calendar taxable year
ending December 31, 1997. The Internal Revenue Service has not completed audits
of the United States federal income tax returns filed by the Borrower and its
Subsidiaries for subsequent periods. No claims have been, or are being, asserted
with respect to such taxes that could reasonably be expected to result in a
Material Adverse Effect and no liens have been filed with respect to such taxes.
The charges, accruals and reserves on the books of the Borrower and its
Subsidiaries in respect of any taxes or other governmental charges are adequate.
5.7. Litigation and Contingent Obligations. Other than the Disclosed
Matters, there is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the knowledge of any of their officers,
threatened against or affecting the Borrower or any of its Subsidiaries which
could, if determined adversely to the Borrower or its Subsidiaries, reasonably
be expected to have a Material Adverse Effect or which seeks to prevent, enjoin
or delay the making of any Loans. Other than any liability incident to any
litigation, arbitration or proceeding
39
which could not reasonably be expected to have a Material Adverse Effect, the
Borrower has no material contingent obligations not provided for or disclosed in
the financial statements referred to in Section 5.4.
5.8. Subsidiaries. Schedule 1 contains an accurate list of all Subsidiaries
of the Borrower as of the date of this Agreement, setting forth their respective
jurisdictions of organization and the percentage of their respective capital
stock or other ownership interests owned by the Borrower or other Subsidiaries.
All of the issued and outstanding shares of capital stock or other ownership
interests of such Subsidiaries have been (to the extent such concepts are
relevant with respect to such ownership interests) duly authorized and issued
and are fully paid and non-assessable.
5.9. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other ERISA Events that have occurred or are
reasonably expected to occur, could reasonably be expected to result in a
Material Adverse Effect.
5.10. Accuracy of Information. The information, exhibits or reports
furnished by the Borrower to the Agent or to any Lender in connection with the
negotiation of, or compliance with, the Loan Documents as of the date furnished
do not contain any material misstatement of fact or omit to state a material
fact or any fact necessary to make the statements contained therein not
misleading.
5.11. Regulation U. Neither the Borrower nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose, whether immediate, incidental or ultimate of
buying or carrying margin stock (as defined in Regulation U), and after applying
the proceeds of each Advance, margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of the Borrower and its
Subsidiaries which are subject to any limitation on sale, pledge, or any other
restriction hereunder.
5.12. Material Agreements. Neither the Borrower nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect as described in clauses (ii) and/or (iii) of the definition
thereof. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement or instrument to which it is a party,
which default could reasonably be expected to have a Material Adverse Effect or
(ii) any agreement or instrument evidencing or governing Indebtedness, which
default could be reasonably expected to have a Material Adverse Effect.
5.13. Compliance With Laws. Except for the Disclosed Matters, the Borrower
and its Subsidiaries have complied with all applicable statutes, rules,
regulations, orders and restrictions of any domestic or foreign government or
any instrumentality or agency thereof having jurisdiction over the conduct of
their respective businesses or the ownership of their respective Property which
non-compliance therewith could reasonably be expected to result in a Material
Adverse Effect.
40
5.14. Ownership of Properties. On the date of this Agreement, the Borrower
and its Subsidiaries have good title (except for minor defects in title that do
not interfere with their ability to conduct their business as currently
conducted or to utilize such properties for the intended purposes), free of all
Liens other than those permitted by Section 6.13, to all of the assets material
to the Borrower's business reflected in the Borrower's most recent consolidated
financial statements provided to the Agent, as owned by the Borrower and its
Subsidiaries.
5.15. Plan Assets; Prohibited Transactions. The Borrower is not an entity
deemed to hold "plan assets" within the meaning of 29 C.F.R. ss. 2510.3-101 of
an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject
to Title I of ERISA or any plan (within the meaning of Section 4975 of the
Code), and assuming the accuracy of the representations and warranties made in
Section 9.12 and in any assignment made pursuant to Section 12.3.3, neither the
execution of this Agreement nor the making of Loans hereunder gives rise to a
prohibited transaction within the meaning of Section 406 of ERISA or Section
4975 of the Code.
5.16. Environmental Matters. In the ordinary course of its business, the
officers of the Borrower consider the effect of Environmental Laws on the
business of the Borrower and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to the Borrower
due to Environmental Laws. On the basis of this consideration, the Borrower has
concluded that, other than the Disclosed Matters, Environmental Laws cannot
reasonably be expected to have a Material Adverse Effect. Except for the
Disclosed Matters, and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, neither the Borrower nor any Subsidiary has received
any notice to the effect that its operations are not in material compliance with
any of the requirements of applicable Environmental Laws or are the subject of
any federal or state investigation evaluating whether any remedial action is
needed to respond to a release of any toxic or hazardous waste or substance into
the environment.
5.17. Investment Company Act. Neither the Borrower nor any Subsidiary is an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
5.18. Public Utility Holding Company Act; Securities and Exchange
Commission Authorization. The Borrower is a "holding company" as such term is
defined in the Public Utility Holding Company Act of 1935, as amended (together
with all rules, regulations and orders promulgated or otherwise issued in
connection therewith, the "1935 Act"). The Securities and Exchange Commission,
in accordance with the 1935 Act, has issued an order authorizing (a) the
incurrence by the Borrower of short-term Indebtedness in an aggregate principal
amount not to exceed at any time $1,500,000,000 and (b) the issuance and sale by
the Borrower of capital stock, preferred stock, certain other specified
securities and long-term Indebtedness in an aggregate principal amount not to
exceed at any time $2,500,000,000, subject to, among other things, the condition
that all such Indebtedness be issued on or before June 30, 2007 and, in the case
of short-term Indebtedness, mature not later than 364 days thereafter. An
additional authorization from the Securities and Exchange Commission will be
necessary in order for the Borrower, after June 30, 2007, to obtain any Advances
under this Agreement (assuming the Facility Termination Date has not already
occurred prior to such date) or to incur or issue Indebtedness, including,
without limitation, Loans extended under this Agreement.
41
5.19. Insurance. The Borrower maintains, and has caused each Subsidiary to
maintain, with financially sound and reputable insurance companies insurance on
all their Property in such amounts, subject to such deductibles and
self-insurance retentions and covering such properties and risks as is
consistent with sound business practice.
5.20. No Default or Unmatured Default. No Default or Unmatured Default has
occurred and is continuing.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Financial Reporting. The Borrower will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance
with generally accepted accounting principles, and furnish to the Agent, and the
Agent shall promptly deliver to each of the Lenders (it being agreed that the
obligation of the Borrower to furnish the financial statements referred to in
paragraphs 6.1.1 and 6.1.2 below may be satisfied by the delivery of annual and
quarterly reports from Borrower to the Securities and Exchange Commission on
Forms 10-K and 10-Q containing such statements):
6.1.1 Within 65 days after the close of each fiscal year, Borrower's
audited financial statements prepared in accordance with Agreement
Accounting Principles on a consolidated basis for itself and its
Subsidiaries, including balance sheets as of the end of such period,
statements of income and statements of cash flows, accompanied by (a) an
audit report, unqualified as to scope, of a nationally recognized firm of
independent public accountants; (b) any management letter prepared by said
accountants, and (c) a certificate of said accountants that, in the course
of their examination necessary for their certification of the foregoing,
they have obtained no knowledge of any Default, or if, in the opinion of
such accountants, any Default shall exist, stating the nature and status
thereof.
6.1.2 Within 45 days after the close of the first three quarterly
periods of each of its fiscal years, for itself and its Subsidiaries,
Borrower's consolidated unaudited balance sheets as at the close of each
such period and consolidated statements of income and a statement of cash
flows for the period from the beginning of such fiscal year to the end of
such quarter, all certified as to fairness of presentation, compliance with
Agreement Accounting Principles and consistency by its chief financial
officer, controller or treasurer.
6.1.3 Together with the financial statements required under Sections
6.1.1 and 6.1.2, a compliance certificate in substantially the form of
Exhibit B signed by its chief financial officer, controller or treasurer
showing the calculations necessary to determine compliance with this
Agreement and stating that no Default or Unmatured Default exists, or if
any Default or Unmatured Default exists, stating the nature and status
thereof.
42
6.1.4 As soon as possible and in any event within 10 days after the
Borrower knows that any ERISA Event has occurred that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower, its Subsidiaries or any
Commonly Controlled Entity in an aggregate amount exceeding $25,000,000, a
statement, signed by the chief financial officer, controller or treasurer
of the Borrower, describing said ERISA Event and the action which the
Borrower proposes to take with respect thereto.
6.1.5 As soon as possible and in any event within 10 days after
receipt by the Borrower, a copy of (a) any notice or claim to the effect
that the Borrower or any of its Subsidiaries is or may be liable to any
Person as a result of the release by the Borrower, any of its Subsidiaries,
or any other Person of any toxic or hazardous waste or substance into the
environment, and (b) any notice alleging any violation of any federal,
state or local environmental, health or safety law or regulation by the
Borrower or any of its Subsidiaries, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
6.1.6 Promptly upon becoming aware thereof, notice of any upgrading or
downgrading of the rating of the Borrower's commercial paper, the
Borrower's senior unsecured debt or the First Mortgage Bonds by ▇▇▇▇▇'▇ or
S&P.
6.1.7 Such other information (including non-financial information) as
the Agent or any Lender may from time to time reasonably request.
6.2. Use of Proceeds and Letters of Credit. The Borrower will, and will
cause each Subsidiary to, use the proceeds of the Advances to repay any and all
amounts outstanding under the Existing Credit Agreements and for general
corporate purposes, including without limitation, for working capital,
commercial paper liquidity support with respect to commercial paper issued by
the Borrower or its Subsidiaries, to fund loans under and pursuant to the Money
Pool Agreements, and to pay fees and expenses incurred in connection with this
Agreement. The Borrower shall use the proceeds of Advances in compliance with
all applicable legal and regulatory requirements and any such use shall not
result in a violation of any such requirements, including, without limitation,
Regulation U and Regulation X, the Securities Act of 1933, as amended, and the
Securities Exchange Act of 1934, as amended, and the regulations promulgated
thereunder. The Borrower shall use the Letters of Credit for general corporate
purposes.
6.3. Notice of Default. Within five (5) Business Days after an Authorized
Officer becomes aware thereof, the Borrower will, and will cause each Subsidiary
to, give notice in writing to the Lenders of the occurrence of any Default or
Unmatured Default and, unless otherwise reported to the Securities and Exchange
Commission in the Borrower's filings under the Securities Exchange Act of 1934,
of any other development, financial or otherwise, which could reasonably be
expected to have a Material Adverse Effect.
6.4. Conduct of Business. The Borrower will, and will cause each Subsidiary
to, carry on and conduct its business in substantially the same manner and in
substantially the same fields of enterprise as it is presently conducted or in a
manner or fields of enterprise reasonably related
43
thereto and do all things necessary to remain duly incorporated or organized,
validly existing and (to the extent such concept applies to such entity) in good
standing as a domestic corporation, partnership or limited liability company in
its jurisdiction of incorporation or organization, as the case may be, and
maintain all requisite authority to conduct its business in each jurisdiction in
which its business is conducted. Notwithstanding the foregoing, the Borrower is
not prohibited from the dissolution of any Inactive Subsidiary or from the sale
of any Subsidiary or assets pursuant to governmental or regulatory order or
pursuant to Section 6.11.
6.5. Taxes. The Borrower will, and will cause each Subsidiary to, timely
file complete and correct United States federal and applicable foreign, state
and local tax returns required by law and pay when due all taxes, assessments
and governmental charges and levies upon it or its income, profits or Property,
except those which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves have been set aside in accordance
with Agreement Accounting Principles.
6.6. Insurance. The Borrower will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on
all their Property in such amounts, subject to such deductibles and
self-insurance retentions, and covering such risks as is consistent with sound
business practice, and the Borrower will furnish to any Lender upon request full
information as to the insurance carried.
6.7. Compliance with Laws; Securities and Exchange Commission
Authorization. (a) The Borrower will, and will cause each Subsidiary to, comply
with all laws, rules, regulations, orders, writs, judgments, injunctions,
decrees or awards to which it may be subject including, without limitation, all
Environmental Laws, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(b) From time to time prior to the expiration of the approval of the
Securities and Exchange Commission described in Section 5.18 with respect to the
Borrower's Indebtedness, so long as this Agreement remains in effect or the
Obligations incurred by the Borrower under or in connection herewith remain
outstanding, the Borrower will obtain an extension of such approval and the
Borrower shall provide a notice to the Agent of the receipt of such extension,
which notice shall include the expiration date of the most recent approval and
the total amount of Indebtedness of the Borrower authorized therein. The
Borrower further agrees not to request any Advance or permit any Loan to remain
outstanding hereunder in violation of the above mentioned Securities and
Exchange Commission approval or any conditions thereof, as in effect from time
to time.
6.8. Maintenance of Properties. Subject to Section 6.11, the Borrower will,
and will cause each Subsidiary to, do all things necessary to maintain,
preserve, protect and keep its Property used in the operation of its business in
good repair, working order and condition (ordinary wear and tear excepted), and
make all necessary and proper repairs, renewals and replacements so that its
business carried on in connection therewith may be properly conducted at all
times.
6.9. Inspection; Keeping of Books and Records. The Borrower will, and will
cause each Subsidiary to, permit the Agent and the Lenders, by their respective
representatives and
44
agents, to inspect any of the Property, books and financial records of the
Borrower and each Subsidiary, to examine and make copies of the books of
accounts and other financial records of the Borrower and each Subsidiary, and to
discuss the affairs, finances and accounts of the Borrower and each Subsidiary
with, and to be advised as to the same by, their respective officers at such
reasonable times and intervals as the Agent or any Lender may designate. The
Borrower shall keep and maintain, and cause each of its Subsidiaries to keep and
maintain, in all material respects, proper books of record and account in which
entries in conformity with Agreement Accounting Principles shall be made of all
dealings and transactions in relation to their respective businesses and
activities. If a Default has occurred and is continuing, the Borrower, upon the
Agent's request, shall turn over copies of any such records to the Agent or its
representatives.
6.10. Merger. The Borrower will not, nor will it permit any Subsidiary to,
merge or consolidate with or into any other Person, except (i) any Subsidiary
may merge or consolidate with the Borrower if the Borrower is the corporation
surviving such merger, (ii) any Subsidiary may merge or consolidate with any
other Subsidiary, provided that the Borrower's aggregate direct and indirect
ownership interest in the survivor thereof shall not be less than the greater of
the Borrower's direct and indirect ownership interest in such Subsidiaries prior
to such merger, and (iii) the Borrower or any Subsidiary may merge or
consolidate with any other Person if (a) such Person was organized under the
laws of the United States of America or one of its States and (b) the Borrower
or such Subsidiary is the corporation surviving such merger; provided that, in
each case, after giving effect thereto, no Default will be in existence.
6.11. Sale of Assets. The Borrower will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property to any other
Person, except:
6.11.1 Sales of electricity, natural gas, emissions credits and other
commodities in the ordinary course of business.
6.11.2 A disposition of assets by a Subsidiary to the Borrower or
another Subsidiary or by the Borrower to a Subsidiary.
6.11.3 A disposition of obsolete property, property no longer used in
the business of the Borrower or its Subsidiaries or other assets in the
ordinary course of business of the Borrower or any Subsidiary.
6.11.4 The transfer pursuant to a requirement or law or any regulatory
authority having jurisdiction, of functional and/or operational control of
(but not of title to) transmission facilities of the Borrower or its
Subsidiaries to an Independent System Operator, Regional Transmission
Organization or to some other entity which has responsibility for operating
and planning a regional transmission system.
6.11.5 Pursuant to transactions in connection with the ▇▇▇▇ Creek
Project.
6.11.6 Leases, sales or other dispositions of its Property that,
together with all other Property of the Borrower and its Subsidiaries
previously leased, sold or disposed of (other than dispositions otherwise
permitted by this Section 6.11) since the Closing Date, do not constitute
Property which represents more than thirty-five percent (35%) of the
45
Consolidated Tangible Assets of the Borrower as would be shown in the
consolidated financial statements of the Borrower and its Subsidiaries as
at the end of the fiscal year ending immediately prior to the date of such
lease, sale or other disposition.
6.12. Indebtedness of Project Finance Subsidiaries, Investments in Project
Finance Subsidiaries; Acquisitions. Neither the Borrower nor any Subsidiary
shall be directly or indirectly, primarily or secondarily, liable for any
Indebtedness or any other form of liability, whether direct, contingent or
otherwise, of a Project Finance Subsidiary nor shall the Borrower or any
Subsidiary provide any guarantee of the Indebtedness, liabilities or other
obligations of a Project Finance Subsidiary. The Borrower will not, nor will it
permit any Subsidiary to, make or suffer to exist Investments in Project Finance
Subsidiaries in excess of $100,000,000 in the aggregate at any time. The
Borrower will not, nor will it permit any Subsidiary to, consummate any
Acquisition other than an Acquisition (a) which is consummated on a non-hostile
basis approved by a majority of the board of directors or other governing body
of the Person being acquired; and (b) which involves the purchase of a business
line similar, related, complementary or incidental to that of the Borrower and
its Subsidiaries as of the Closing Date unless the purchase price therefor is
less than or equal to (i) $10,000,000 with respect thereto or (ii) $50,000,000
when taken together with all other Acquisitions consummated during the term of
this Agreement which do not otherwise satisfy the conditions described above in
this clause (b), and, as of the date of such Acquisition and after giving effect
thereto, no Default or Unmatured Default shall exist.
6.13. Liens. The Borrower will not, nor will it permit any Subsidiary
(other than a Project Finance Subsidiary) to, create, incur, or suffer to exist
any Lien in, of or on the Property of the Borrower or any of its Subsidiaries,
except:
6.13.1 Liens, if any, securing (a) the Loans and other Obligations
hereunder and (b) the "Loans" and other "Obligations" under (and as defined
in) the Five-Year Credit Agreement.
6.13.2 Liens for taxes, assessments or governmental charges or levies
on its Property if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good
faith and by appropriate proceedings and for which adequate reserves in
accordance with Agreement Accounting Principles shall have been set aside
on its books.
6.13.3 Liens imposed by law, such as landlords', wage earners',
carriers', warehousemen's and mechanics' liens and other similar liens
arising in the ordinary course of business which secure payment of
obligations not more than 60 days past due or which are being contested in
good faith by appropriate proceedings and for which adequate reserves in
accordance with Agreement Accounting Principles shall have been set aside
on its books.
6.13.4 Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other
social security or retirement benefits, or similar legislation.
46
6.13.5 Liens existing on the date hereof and described in Schedule 2.
6.13.6 Deposits securing liability to insurance carriers under
insurance or self-insurance arrangements.
6.13.7 Deposits or accounts to secure the performance of bids, trade
contracts or obligations (other than for borrowed money), vendor and
service provider arrangements, leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business.
6.13.8 Easements, reservations, rights-of-way, restrictions, survey
exceptions and other similar encumbrances as to real property of the
Borrower and its Subsidiaries which customarily exist on properties of
corporations engaged in similar activities and similarly situated and which
do not materially interfere with the conduct of the business of the
Borrower or such Subsidiary conducted at the property subject thereto.
6.13.9 Liens arising out of judgments or awards not exceeding
$50,000,000 in the aggregate with respect to which appeals are being
diligently pursued, and, pending the determination of such appeals, such
judgments or awards having been effectively stayed.
6.13.10 Liens created pursuant to the Existing Indentures securing the
First Mortgage Bonds; provided that the Liens of such Existing Indentures
shall extend only to the property of Union Electric and CIPS (including, to
the extent applicable, after acquired property) that is or would be covered
by the Liens of the Existing Indentures as in effect on the date hereof
covered by such Liens.
6.13.11 Liens incurred in connection with the ▇▇▇▇ Creek Project.
6.13.12 Liens existing on any capital assets of any Subsidiary of the
Borrower at the time such Subsidiary becomes a Subsidiary and not created
in contemplation of such event.
6.13.13 Liens on any capital assets securing Indebtedness incurred or
assumed for the purpose of financing or refinancing all or any part of the
cost of acquiring or constructing such asset; provided that such Lien
attaches to such asset concurrently with or within eighteen (18) months
after the acquisition or completion or construction thereof.
6.13.14 Liens existing on any capital assets of any Subsidiary of the
Borrower at the time such Subsidiary is merged or consolidated with or into
the Borrower or any Subsidiary and not created in contemplation of such
event.
6.13.15 Liens existing on any assets prior to the acquisition thereof
by the Borrower or any Subsidiary and not created in contemplation thereof;
provided that such Liens do not encumber any other property or assets.
6.13.16 Liens (a) on the capital stock of CILCO and on the assets of
CILCO and any other Subsidiary of CILCORP existing on the date hereof
and/or (b) created pursuant
47
to the Existing CILCO Indenture securing First Mortgage Bonds; provided
that the Liens of such Existing CILCO Indenture shall extend only to the
property (including, to the extent applicable, after acquired property)
that is covered by the Liens of the Existing CILCO Indenture as in effect
on the date hereof.
6.13.17 Undetermined Liens and charges incidental to construction.
6.13.18 Liens on Property or assets of a Subsidiary in favor of the
Borrower or a Subsidiary that is directly or indirectly wholly owned by the
Borrower.
6.13.19 Subject and pursuant to the IP Acquisition, Liens (a) on the
assets of IP and any subsidiary of IP existing as of the IP Acquisition
and/or (b) created pursuant to the Existing IP Indenture securing First
Mortgage Bonds; provided that the Liens of such Existing IP Indenture shall
extend only to the property (including, to the extent applicable, after
acquired property) that is covered by the Liens of the Existing IP
Indenture as in effect on the date of the IP Acquisition.
6.13.20 Liens arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted by any of
Section 6.13.10 through 6.13.19; provided that (a) such Indebtedness is not
secured by any additional assets, and (b) the amount of such Indebtedness
secured by any such Lien is not increased.
6.13.21 From and after the IP Acquisition, any Liens existing on any
assets of IP or any of its subsidiaries or related trusts related to the
Illinois Power Special Purpose Trust Transitional Funding Trust Notes,
Series 1998-1.
6.14. Affiliates. The Borrower will not, and will not permit any Subsidiary
to, enter into any transaction (including, without limitation, the purchase or
sale of any Property or service) with, or make any payment or transfer to, any
Affiliate (other than the Borrower and its Subsidiaries) except in the ordinary
course of business and pursuant to the reasonable requirements of the Borrower's
or such Subsidiary's business and, except to the extent that the terms and
consideration of any such transaction are mandated, limited or otherwise subject
to conditions imposed by any regulatory or government body, upon fair and
reasonable terms no less favorable to the Borrower or such Subsidiary than the
Borrower or such Subsidiary would obtain in a comparable arm's-length
transaction.
6.15. Financial Contracts. The Borrower will not, nor will it permit any
Subsidiary, to, enter into or remain liable upon any Rate Management
Transactions except for those entered into in the ordinary course of business
for bona fide hedging purposes and not for speculative purposes.
6.16. Subsidiary Covenants. The Borrower will not, and will not permit any
Subsidiary other than a Project Finance Subsidiary to, create or otherwise cause
to become effective any consensual encumbrance or restriction of any kind on the
ability of any Subsidiary other than a Project Finance Subsidiary (i) to pay
dividends or make any other distribution on its common stock, (ii) to pay any
Indebtedness or other obligation owed to the Borrower or any other Subsidiary,
or (iii) to make loans or advances or other Investments in the Borrower or any
other Subsidiary, in each case, other than (a) restrictions and conditions
imposed by law or by this
48
Agreement or the Five-Year Credit Agreement, (b) restrictions and conditions
existing on the date hereof or, to the best knowledge of the Borrower, as of and
resulting from the IP Acquisition, in each case as identified on Schedule 3
(without giving effect to any amendment or modification expanding the scope of
any such restriction or condition), (c) restrictions on dividends on the capital
stock of Union Electric entered into in connection with future issuances of
subordinated capital income securities, to the extent the same are not more
restrictive than those benefiting the holders of Union Electric's existing 7.69%
Subordinated Capital Income Securities, (d) restrictions and conditions in
agreements or arrangements entered into by (1) Electric Energy, Inc. regarding
the payment of dividends or the making of other distributions with respect to
shares of its capital stock or (2) Gateway Energy WGK Project, L.L.C., in each
case, without giving effect to any amendment or modification expanding the scope
of any such restriction or condition, and (e) customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided that such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder.
6.17. Leverage Ratio. The Borrower will not permit the ratio of (i)
Consolidated Indebtedness to (ii) Consolidated Total Capitalization of any of
the Borrower, CIPS, Union Electric, CILCO or, from and after the date that is
six (6) months after the IP Acquisition, IP to be greater than 0.60 to 1.00 at
any time.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of
the Borrower or any of its Subsidiaries to the Lenders, the Issuing Banks or the
Agent under or in connection with this Agreement, any Credit Extension, or any
certificate or information delivered in connection with this Agreement or any
other Loan Document shall be false in any material respect on the date as of
which made or deemed made.
7.2. Nonpayment of (i) principal of any Loan when due, or (ii) interest
upon any Loan or any Facility Fee or other Obligations under any of the Loan
Documents within five (5) Business Days after such interest, fee or other
Obligation becomes due.
7.3. The breach by the Borrower of any of the terms or provisions of
Section 6.2, 6.3, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16 or 6.17.
7.4. The breach by the Borrower (other than a breach which constitutes a
Default under another Section of this Article VII) of any of the terms or
provisions of this Agreement which is not remedied within fifteen (15) days
after the earlier to occur of (i) written notice from the Agent or any Lender to
the Borrower or (ii) an Authorized Officer otherwise becoming aware of any such
breach.
7.5. Failure of the Borrower or any of its Subsidiaries (other than Project
Finance Subsidiaries) to pay when due any Material Indebtedness; or the default
by the Borrower or any of its Subsidiaries (other than Project Finance
Subsidiaries) in the performance (beyond the
49
applicable grace period with respect thereto, if any) of any term, provision or
condition contained in any Material Indebtedness Agreement, or any other event
shall occur or condition exist (except for, from and after the date of the IP
Acquisition, a "Triggering Event" under IP's 11 1/2% Mortgage Bonds due 2010
which does not also cause an event of default thereunder), the effect of which
default, event or condition is to cause, or to permit the holder(s) of such
Material Indebtedness or the lender(s) under any Material Indebtedness Agreement
to cause, such Material Indebtedness to become due prior to its stated maturity
or any commitment to lend under any Material Indebtedness Agreement to be
terminated prior to its stated expiration date; or any Material Indebtedness of
the Borrower or any of its Subsidiaries (other than Project Finance
Subsidiaries) shall be declared to be due and payable or required to be prepaid
or repurchased (other than by a regularly scheduled payment) prior to the stated
maturity thereof (except, from and after the date of the IP Acquisition, in the
case of or related to a "Triggering Event" under IP's 11 1/2% Mortgage Bonds due
2010 which does not also cause an event of default thereunder); or the Borrower
or any of its Subsidiaries (other than Project Finance Subsidiaries) shall not
pay, or admit in writing its inability to pay, its debts generally as they
become due; provided that no Default shall occur under this Section 7.5 as a
result of (i) any notice of voluntary prepayment delivered by the Borrower or
any Subsidiary with respect to any Indebtedness, or (ii) any voluntary sale of
assets by the Borrower or any Subsidiary permitted hereunder as a result of
which any Indebtedness secured by such assets is required to be prepaid.
7.6. The Borrower or any of its Subsidiaries (other than Project Finance
Subsidiaries) shall (i) have an order for relief entered with respect to it
under the Federal bankruptcy laws as now or hereafter in effect, (ii) make an
assignment for the benefit of creditors, (iii) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any Substantial Portion of its
Property, (iv) institute any proceeding seeking an order for relief under the
Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate
it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate or
partnership action to authorize or effect any of the foregoing actions set forth
in this Section 7.6, (vi) fail to contest in good faith any appointment or
proceeding described in Section 7.7, or (vii) become unable, admit in writing
its inability or fail generally to pay its debts as they become due.
7.7. Without the application, approval or consent of the Borrower or any of
its Subsidiaries (other than Project Finance Subsidiaries), a receiver, trustee,
examiner, liquidator or similar official shall be appointed for the Borrower or
any of its Subsidiaries or any Substantial Portion of its Property, or a
proceeding described in Section 7.6(iv) shall be instituted against the Borrower
or any of its Subsidiaries and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of 60 consecutive
days.
7.8. Any court, government or governmental agency shall condemn, seize or
otherwise appropriate, or take custody or control of, all or any portion of the
Property of the Borrower and its Subsidiaries (other than Project Finance
Subsidiaries) which, when taken together with all other Property of the Borrower
and its Subsidiaries so condemned, seized, appropriated, or taken
50
custody or control of, during the twelve-month period ending with the month in
which any such action occurs, constitutes a Substantial Portion.
7.9. The Borrower or any of its Subsidiaries (other than Project Finance
Subsidiaries) shall fail within 45 days to pay, bond or otherwise discharge one
or more (i) judgments or orders for the payment of money in excess of
$25,000,000 (or the equivalent thereof in currencies other than Dollars) in the
aggregate (net of any amount covered by insurance), or (ii) nonmonetary
judgments or orders which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, which judgment(s), in any such case,
is/are not stayed on appeal or otherwise being appropriately contested in good
faith.
7.10. An ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect.
7.11. Nonpayment by the Borrower or any Subsidiary (other than Project
Finance Subsidiary) of any Rate Management Obligation, in a notional amount of
$25,000,000 or more, when due or the breach by the Borrower or any Subsidiary
(other than Project Finance Subsidiary) of any term, provision or condition
contained in any Rate Management Transaction or any transaction of the type
described in the definition of "Rate Management Transactions," whether or not
any Lender or Affiliate of a Lender is a party thereto.
7.12. Any Change in Control shall occur.
7.13. The Borrower or any of its Subsidiaries shall (i) be the subject of
any proceeding or investigation pertaining to the release by the Borrower, any
of its Subsidiaries or any other Person of any toxic or hazardous waste or
substance into the environment, or (ii) violate any Environmental Law, which, in
the case of an event described in clause (i) or clause (ii), has resulted in
liability to the Borrower or any of its Subsidiaries in an amount equal to
$50,000,000 or more, which liability is not paid, bonded or otherwise discharged
within 45 days or which is not stayed on appeal and being appropriately
contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Loan Document.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. If any Default described in Section 7.6 or 7.7 occurs
with respect to the Borrower, the obligations of the Lenders to make Loans and
of the Issuing Banks to issue Letters of Credit hereunder shall automatically
terminate and the Obligations shall immediately become due and payable without
any election or action on the part of the Agent, any Issuing Bank or any Lender.
If any other Default occurs, the Required Lenders (or the Agent with the consent
of the Required Lenders) may terminate or suspend the obligations of the Lenders
to make Loans and of the Issuing Banks to issue Letters of Credit hereunder, or
declare the Obligations to be due and payable, or both, whereupon the
Obligations shall become
51
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which the Borrower hereby expressly waives.
If, after acceleration of the maturity of the Obligations or termination of
the obligations of the Lenders to make Loans and of the Issuing Banks to issue
Letters of Credit hereunder as a result of any Default (other than any Default
as described in Section 7.6 or 7.7 with respect to the Borrower) and before any
judgment or decree for the payment of the Obligations due shall have been
obtained or entered, the Required Lenders (in their sole discretion) shall so
direct, the Agent shall, by notice to the Borrower, rescind and annul such
acceleration and/or termination.
8.2. Amendments. Subject to the provisions of this Section 8.2, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or thereunder
or waiving any Default hereunder or thereunder; provided, however, that no such
supplemental agreement shall, without the consent of all of the Lenders (or, in
the case of Section 8.2.2, all affected Lenders):
8.2.1 Extend the final maturity of any Revolving Loan or LC
Disbursement or postpone any payment of principal of any Revolving Loan or
LC Disbursement or forgive all or any portion of the principal amount
thereof, or reduce the rate or extend the time of payment of interest or
fees thereon (other than a waiver of the application of the default rate of
interest pursuant to Section 2.14 hereof).
8.2.2 Extend the final maturity of any Competitive Loan or postpone
any regularly scheduled payment of principal of any Competitive Loan or
forgive all or any portion of the principal amount thereof, or reduce the
rate or extend the time of payment of interest or fees thereon (other than
a waiver of the application of the default rate of interest pursuant to
Section 2.14 hereof).
8.2.3 Waive any condition set forth in Section 4.2, reduce the
percentage specified in the definition of Required Lenders or any other
percentage of Lenders specified to be the Pro Rata Share in this Agreement
to act on specified matters or amend the definition of "Pro Rata Share".
8.2.4 Extend the Facility Termination Date, or reduce the amount or
extend the payment date for, the mandatory payments required under Section
2.2, or increase the amount of the Commitment of any Lender hereunder, or
permit the Borrower to assign its rights or obligations under this
Agreement or change Section 2.15 or 2.8.4 in a manner that would alter the
pro rata sharing of payments or reduction of commitments required thereby.
8.2.5 Amend this Section 8.2.
No amendment of any provision of this Agreement relating to the Agent, any
Issuing Bank or the Swingline Lender shall be effective without the written
consent of the Agent, such Issuing Bank or the Swingline Lender, as the case may
be. The Agent may waive payment of the fee required under Section 12.3.3 without
obtaining the consent of any other party to this Agreement.
52
Notwithstanding the foregoing, any provision of this Agreement may be amended by
an agreement in writing entered into by the Borrower, the Required Lenders and
the Agent if (i) by the terms of such agreement any remaining Commitment of each
Lender not consenting to the amendment provided for therein shall terminate upon
the effectiveness of such amendment and (ii) at the time such amendment becomes
effective, each Lender not consenting thereto receives payment in full of the
principal of and interest accrued on each Advance made by it and all other
amounts owing to it or accrued for its account under this Agreement.
8.3. Preservation of Rights. No delay or omission of the Lenders, the Agent
or the Issuing Banks to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Credit Extension notwithstanding the existence of a
Default or Unmatured Default or the inability of the Borrower to satisfy the
conditions precedent to such Credit Extension shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by, or by the Agent with the consent of, the requisite number of Lenders
required pursuant to Section 8.2, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Agent, the
Issuing Banks and the Lenders until all of the Obligations have been paid in
full.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties of the
Borrower contained in this Agreement shall survive the making of the Credit
Extensions herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3. Headings. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
9.4. Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Agent and the Lenders and supersede all
prior agreements and understandings among the Borrower, the Agent, the Issuing
Banks and the Lenders relating to the subject matter thereof other than those
contained in the fee letter described in Section 10.13 which shall survive and
remain in full force and effect during the term of this Agreement.
9.5. Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders and the Issuing Banks hereunder are several and not
joint and no Lender or Issuing
53
Bank shall be the partner or agent of any other (except to the extent to which
the Agent is authorized to act as such). The failure of any Lender or any
Issuing Bank to perform any of its obligations hereunder shall not relieve any
other Lender or any Issuing Bank from any of its obligations hereunder. This
Agreement shall not be construed so as to confer any right or benefit upon any
Person other than the parties to this Agreement and their respective successors
and assigns, provided, however, that the parties hereto expressly agree that
each Arranger shall enjoy the benefits of the provisions of Sections 9.6, 9.10
and 10.11 to the extent specifically set forth therein and shall have the right
to enforce such provisions on its own behalf and in its own name to the same
extent as if it were a party to this Agreement.
9.6. Expenses; Indemnification. (i) The Borrower shall reimburse the Agent
and each Arranger for any reasonable costs, internal charges and out-of-pocket
expenses (including reasonable attorneys' and paralegals' fees and time charges
of attorneys for the Agent, which attorneys may be employees of the Agent and
expenses of and fees for other advisors and professionals engaged by the Agent
or such Arranger) paid or incurred by the Agent or such Arranger in connection
with the investigation, preparation, negotiation, documentation, execution,
delivery, syndication, distribution (including, without limitation, via the
internet), review, amendment, modification and administration of the Loan
Documents. The Borrower also agrees to reimburse the Agent, each Arranger, the
Issuing Banks and the Lenders for any costs, internal charges and out-of-pocket
expenses (including attorneys' and paralegals' fees and time charges and
expenses of attorneys and paralegals for the Agent, such Arranger, the Issuing
Banks and the Lenders, which attorneys and paralegals may be employees of the
Agent, such Arranger, the Issuing Banks or the Lenders) paid or incurred by the
Agent, such Arranger, any Issuing Bank or any Lender in connection with the
collection and enforcement of the Loan Documents.
(ii) The Borrower hereby further agrees to indemnify the Agent, each
Arranger, each Issuing Bank, each Lender, their respective affiliates,
and each of their directors, officers and employees against all
losses, claims, damages, penalties, judgments, liabilities and
expenses (including, without limitation, all expenses of litigation or
preparation therefor whether or not the Agent, any Arranger, any
Issuing Bank, any Lender or any affiliate is a party thereto, and all
attorneys' and paralegals' fees, time charges and expenses of
attorneys and paralegals of the party seeking indemnification, which
attorneys and paralegals may or may not be employees of such party
seeking indemnification) which any of them may pay or incur arising
out of or relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or the direct or indirect application
or proposed application of the proceeds of any Loan hereunder except
to the extent that they have resulted, as determined in a final
non-appealable judgment by a court of competent jurisdiction, from the
gross negligence or willful misconduct of the party seeking
indemnification. The obligations of the Borrower under this Section
9.6 shall survive the termination of this Agreement.
(iii)To the extent that the Borrower fails to pay any amount required to be
paid by it to the Agent, the Arrangers, any Issuing Bank or the
Swingline Lender under paragraph (i) or (ii) of this Section, each
Lender severally agrees to pay to the Agent, the Arrangers, such
Issuing Bank or the Swingline Lender, as the case may
54
be, such Lender's Pro Rata Share (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the
case may be, was incurred by or asserted against the Agent, the
Arrangers or the Swingline Lender in its capacity as such.
9.7. Numbers of Documents. All statements, notices, closing documents, and
requests hereunder shall be furnished to the Agent with sufficient counterparts
so that the Agent may furnish one to each of the Lenders, to the extent that the
Agent deems necessary.
9.8. Accounting. Except as provided to the contrary herein, all accounting
terms used in the calculation of any financial covenant or test shall be
interpreted and all accounting determinations hereunder in the calculation of
any financial covenant or test shall be made in accordance with Agreement
Accounting Principles. If any changes in generally accepted accounting
principles are hereafter required or permitted and are adopted by the Borrower
or any of its Subsidiaries with the agreement of its independent certified
public accountants and such changes result in a change in the method of
calculation of any of the financial covenants, tests, restrictions or standards
herein or in the related definitions or terms used therein ("Accounting
Changes"), the parties hereto agree, at the Borrower's request, to enter into
negotiations, in good faith, in order to amend such provisions in a credit
neutral manner so as to reflect equitably such changes with the desired result
that the criteria for evaluating the Borrower's and its Subsidiaries' financial
condition shall be the same after such changes as if such changes had not been
made; provided, however, until such provisions are amended in a manner
reasonably satisfactory to the Agent and the Required Lenders, no Accounting
Change shall be given effect in such calculations. In the event such amendment
is entered into, all references in this Agreement to Agreement Accounting
Principles shall mean generally accepted accounting principles as of the date of
such amendment. Notwithstanding the foregoing, all financial statements to be
delivered by the Borrower pursuant to Section 6.1 shall be prepared in
accordance with generally accepted accounting principles in effect at such time.
9.9. Severability of Provisions. Any provision in any Loan Document that is
held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as
to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
9.10. Nonliability. The relationship between the Borrower on the one hand
and the Lenders and the Agent on the other hand shall be solely that of borrower
and lender. Neither the Agent, any Arranger, any Issuing Bank nor any Lender
shall have any fiduciary responsibilities to the Borrower. Neither the Agent,
any Arranger, any Issuing Bank nor any Lender undertakes any responsibility to
the Borrower to review or inform the Borrower of any matter in connection with
any phase of the Borrower's business or operations. The Borrower agrees that
neither the Agent, any Arranger, any Issuing Bank nor any Lender shall have
liability to the Borrower (whether sounding in tort, contract or otherwise) for
losses suffered by the Borrower in connection with, arising out of, or in any
way related to, the transactions contemplated and the relationship established
by the Loan Documents, or any act, omission or event occurring in connection
therewith, unless it is determined in a final non-appealable judgment by a court
of
55
competent jurisdiction that such losses resulted from the gross negligence or
willful misconduct of the party from which recovery is sought. Neither the
Borrower, the Agent, any Arranger, any Issuing Bank nor any Lender shall have
any liability with respect to, and each of the Agent, each Arranger, each
Issuing Bank, each Lender and the Borrower hereby waives, releases and agrees
not to ▇▇▇ for, any special, indirect, consequential or punitive damages
suffered by it in connection with, arising out of, or in any way related to the
Loan Documents or the transactions contemplated thereby.
9.11. Confidentiality. Each Lender and each Issuing Bank agrees to hold any
confidential information which it may receive from the Borrower pursuant to this
Agreement in confidence, except for disclosure (i) to its Affiliates and to
other Lenders or Issuing Banks and their respective Affiliates, for use solely
in connection with the transactions contemplated hereby, (ii) to legal counsel,
accountants, and other professional advisors to such Lender or Issuing Bank or
to a Transferee, in each case which have been informed as to the confidential
nature of such information, for use solely in connection with the transactions
contemplated hereby, (iii) to regulatory officials having jurisdiction over it,
(iv) to any Person as required by law, regulation, or legal process, (v) to any
Person in connection with any legal proceeding to which such Lender or Issuing
Bank is a party, (vi) to such Lender's or Issuing Bank's direct or indirect
contractual counterparties in swap agreements or to legal counsel, accountants
and other professional advisors to such counterparties, in each case which have
been informed as to the confidential nature of such information, (vii) permitted
by Section 12.4 and (viii) to rating agencies if requested or required by such
agencies in connection with a rating relating to the Advances hereunder.
9.12. Lenders Not Utilizing Plan Assets. Each Lender and Designated Lender
represents and warrants that none of the consideration used by such Lender or
Designated Lender to make its Loans constitutes for any purpose of ERISA or
Section 4975 of the Code assets of any "plan" as defined in Section 3(3) of
ERISA or Section 4975 of the Code and the rights and interests of such Lender or
Designated Lender in and under the Loan Documents shall not constitute such
"plan assets" under ERISA.
9.13. Nonreliance. Each Lender hereby represents that it is not relying on
or looking to any margin stock (as defined in Regulation U) as collateral in the
extension or maintenance of the credit provided for herein.
9.14. Disclosure. The Borrower and each Lender and each Issuing Bank hereby
acknowledge and agree that each Lender, each Issuing Bank and their Affiliates
from time to time may hold investments in, make other loans to or have other
relationships with the Borrower and its Affiliates.
9.15. USA Patriot Act. Each Lender and each Issuing Bank hereby notifies
the Borrower that pursuant to the requirements of the USA Patriot Act, it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance
with its requirements.
56
ARTICLE X
THE AGENT
10.1. Appointment; Nature of Relationship. JPMCB is hereby appointed by
each of the Lenders and each of the Issuing Banks as its contractual
representative (herein referred to as the "Agent") hereunder and under each
other Loan Document, and each of the Lenders and the each of the Issuing Banks
irrevocably authorizes the Agent to act as the contractual representative of
such Lender and such Issuing Bank with the rights and duties expressly set forth
herein and in the other Loan Documents. The Agent agrees to act as such
contractual representative upon the express conditions contained in this Article
X. Notwithstanding the use of the defined term "Agent," it is expressly
understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Lender or any Issuing Bank by reason of this Agreement
or any other Loan Document and that the Agent is merely acting as the
contractual representative of the Lenders and the Issuing Banks with only those
duties as are expressly set forth in this Agreement and the other Loan
Documents. In its capacity as the Lenders' and the Issuing Banks' contractual
representative, the Agent (i) does not hereby assume any fiduciary duties to any
of the Lenders or the Issuing Banks, (ii) is a "representative" of the Lenders
and the Issuing Banks within the meaning of the term "secured party" as defined
in the New York Uniform Commercial Code and (iii) is acting as an independent
contractor, the rights and duties of which are limited to those expressly set
forth in this Agreement and the other Loan Documents. Each of the Lenders and
the Issuing Banks hereby agrees to assert no claim against the Agent on any
agency theory or any other theory of liability for breach of fiduciary duty, all
of which claims each Lender hereby waives.
10.2. Powers. The Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The
Agent shall have no implied duties or fiduciary duties to the Lenders or the
Issuing Banks, or any obligation to the Lenders or the Issuing Banks to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Agent.
10.3. General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender or any Issuing Bank for any action taken or omitted to be taken by it
or them hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is determined in a final,
non-appealable judgment by a court of competent jurisdiction to have arisen from
the gross negligence or willful misconduct of such Person.
10.4. No Responsibility for Loans, Recitals, etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into, or verify (a) any statement, warranty or
representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender and each Issuing Bank; (c) the satisfaction of any condition specified in
Article IV, except receipt of items required to be delivered solely to the
Agent; (d) the existence or possible existence of any
57
Default or Unmatured Default; (e) the validity, enforceability, effectiveness,
sufficiency or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith; (f) the value, sufficiency, creation,
perfection or priority of any Lien in any collateral security; or (g) the
financial condition of the Borrower or any guarantor of any of the Obligations
or of any of the Borrower's or any such guarantor's respective Subsidiaries. The
Agent shall have no duty to disclose to the Lenders or the Issuing Banks
information that is not required to be furnished by the Borrower to the Agent at
such time, but is voluntarily furnished by the Borrower to the Agent (either in
its capacity as Agent or in its individual capacity).
10.5. Action on Instructions of Lenders. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders (or all of the Lenders in the event that and to the extent that
this Agreement expressly requires such), and such instructions and any action
taken or failure to act pursuant thereto shall be binding on all of the Lenders.
The Lenders hereby acknowledge that the Agent shall be under no duty to take any
discretionary action permitted to be taken by it pursuant to the provisions of
this Agreement or any other Loan Document unless it shall be requested in
writing to do so by the Required Lenders (or all of the Lenders in the event
that and to the extent that this Agreement expressly requires such). The Agent
shall be fully justified in failing or refusing to take any action hereunder and
under any other Loan Document unless it shall first be indemnified to its
satisfaction in writing by the Lenders pro rata against any and all liability,
cost and expense that it may incur by reason of taking or continuing to take any
such action.
10.6. Employment of Agents and Counsel. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders or the Issuing Banks, except as to money or securities received by it or
its authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Agent shall be
entitled to advice of counsel concerning the contractual arrangement between the
Agent and the Lenders and the Issuing Banks and all matters pertaining to the
Agent's duties hereunder and under any other Loan Document.
10.7. Reliance on Documents; Counsel. The Agent shall be entitled to rely
upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
10.8. Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to the their Pro Rata
Shares of the Aggregate Commitment (or, if the Aggregate Commitment has been
terminated, of the Aggregate Outstanding Credit Exposure) (determined as of the
date of any such request by the Agent) (i) for any amounts not reimbursed by the
Borrower for which the Agent is entitled to reimbursement by the Borrower under
the Loan Documents, (ii) to the extent not paid by the Borrower, for any other
expenses incurred by the Agent on behalf of the Lenders or the Issuing Banks, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents (including, without limitation, for any
expenses incurred by the Agent in connection
58
with any dispute between the Agent and any Lender or between two or more of the
Lenders or Issuing Banks) and (iii) to the extent not paid by the Borrower, for
any liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever which
may be imposed on, incurred by or asserted against the Agent in any way relating
to or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby (including,
without limitation, for any such amounts incurred by or asserted against the
Agent in connection with any dispute between the Agent and any Lender or between
two or more of the Lenders or Issuing Banks), or the enforcement of any of the
terms of the Loan Documents or of any such other documents, provided that (i) no
Lender shall be liable for any of the foregoing to the extent any of the
foregoing is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the Agent, (ii) any indemnification required pursuant to Section 3.5(vii) shall,
notwithstanding the provisions of this Section 10.8, be paid by the relevant
Lender in accordance with the provisions thereof and (iii) the Agent shall
reimburse the Lenders for any amounts the Lenders have paid to the extent such
amounts are subsequently recovered from the Borrower. The obligations of the
Lenders under this Section 10.8 shall survive payment of the Obligations,
termination and expiration of the Letters of Credit and termination of this
Agreement.
10.9. Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Unmatured Default hereunder unless
the Agent has received written notice from a Lender or the Borrower referring to
this Agreement describing such Default or Unmatured Default and stating that
such notice is a "notice of default". In the event that the Agent receives such
a notice, the Agent shall give prompt notice thereof to the Lenders and the
Issuing Banks.
10.10. Rights as a Lender. In the event the Agent is a Lender or an Issuing
Bank, the Agent shall have the same rights and powers hereunder and under any
other Loan Document with respect to its Commitment and its Credit Extensions as
any Lender or any Issuing Bank and may exercise the same as though it were not
the Agent, and the term "Lender" or "Lenders" or "Issuing Bank" shall, at any
time when the Agent is a Lender or an Issuing Bank, unless the context otherwise
indicates, include the Agent in its individual capacity. The Agent and its
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person. The Agent, in its
individual capacity, is not obligated to remain a Lender.
10.11. Independent Credit Decision. Each Lender and each Issuing Bank
acknowledges that it has, independently and without reliance upon the Agent, any
Arranger or any other Lender or any other Issuing Bank and based on the
financial statements prepared by the Borrower and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each Lender
and each Issuing Bank also acknowledges that it will, independently and without
reliance upon the Agent, any Arranger or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
59
10.12. Successor Agent. The Agent may resign at any time by giving written
notice thereof to the Lenders, the Issuing Banks and the Borrower, such
resignation to be effective upon the appointment of a successor Agent or, if no
successor Agent has been appointed, forty-five days after the retiring Agent
gives notice of its intention to resign. The Agent may be removed at any time
with or without cause by written notice received by the Agent from the Required
Lenders, such removal to be effective on the date specified by the Required
Lenders. Upon any such resignation or removal, the Required Lenders, with the
consent of the Borrower (which consent shall not be unreasonably withheld or
delayed; provided that such consent shall not be required in the event and
continuation of a Default), shall have the right to appoint, on behalf of the
Borrower and the Lenders, a successor Agent. If no successor Agent shall have
been so appointed by the Required Lenders or consented to by the Borrower within
thirty days after the resigning Agent's giving notice of its intention to
resign, then the resigning Agent may appoint, on behalf of the Borrower and the
Lenders, a successor Agent. Notwithstanding the previous sentence, the Agent may
at any time without the consent of the Borrower or any Lender or any Issuing
Bank, appoint any of its Affiliates which is a commercial bank as a successor
Agent hereunder. If the Agent has resigned or been removed and no successor
Agent has been appointed, the Lenders may perform all the duties of the Agent
hereunder and the Borrower shall make all payments in respect of the Obligations
to the applicable Lender and for all other purposes shall deal directly with the
Lenders. No successor Agent shall be deemed to be appointed hereunder until such
successor Agent has accepted the appointment. Any such successor Agent shall be
a commercial bank having capital and retained earnings of at least $100,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning or removed Agent. Upon
the effectiveness of the resignation or removal of the Agent, the resigning or
removed Agent shall be discharged from its duties and obligations hereunder and
under the Loan Documents. After the effectiveness of the resignation or removal
of an Agent, the provisions of this Article X shall continue in effect for the
benefit of such Agent in respect of any actions taken or omitted to be taken by
it while it was acting as the Agent hereunder and under the other Loan
Documents. In the event that there is a successor to the Agent by merger, or the
Agent assigns its duties and obligations to an Affiliate pursuant to this
Section 10.12, then the term "Prime Rate" as used in this Agreement shall mean
the prime rate, base rate or other analogous rate of the new Agent.
10.13. Agent and Arranger Fees. The Borrower agrees to pay to the Agent and
each Arranger, for their respective accounts, the fees agreed to by the
Borrower, the Agent and the Arrangers pursuant to the letter agreements dated
June 17, 2004, or as otherwise agreed from time to time.
10.14. Delegation to Affiliates. The Borrower, the Lenders and the Issuing
Banks agree that the Agent may delegate any of its duties under this Agreement
to any of its Affiliates. Any such Affiliate (and such Affiliate's directors,
officers, agents and employees) which performs duties in connection with this
Agreement shall be entitled to the same benefits of the indemnification, waiver
and other protective provisions to which the Agent is entitled under Articles IX
and X.
10.15. Syndication Agent and Documentation Agents. The Lender identified in
this Agreement as the "Syndication Agent" and the Lenders identified in this
Agreement as the
60
"Documentation Agents" shall have no right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, such Lenders shall not have or
be deemed to have a fiduciary relationship with any other Lender. Each Lender
hereby makes the same acknowledgements with respect to such Lenders as it makes
with respect to the Agent in Section 10.11.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender
(including the Swingline Lender) or any Affiliate of any Lender or any Issuing
Bank to or for the credit or account of the Borrower may be offset and applied
toward the payment of the Obligations owing to such Lender or such Issuing Bank,
whether or not the Obligations, or any part thereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Revolving Credit Exposure (other than payments
received pursuant to Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than
that received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a participation in the Aggregate Revolving Credit Exposure held by the
other Lenders so that after such purchase each Lender will hold its Pro Rata
Share of the Aggregate Revolving Credit Exposure. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their respective Pro Rata Shares of the
Aggregate Revolving Credit Exposure. In case any such payment is disturbed by
legal process, or otherwise, appropriate further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns; Designated Lenders.
12.1.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower,
the Agent, the Issuing Banks and the Lenders and their respective
successors and assigns permitted hereby, except that (i) the Borrower shall
not have the right to assign its rights or obligations under the Loan
Documents without the prior written consent of the Agent, each Lender and
each Issuing Bank, (ii) any assignment by any Lender must be made in
compliance with Section 12.3, and (iii) any transfer by Participants must
be made in compliance with Section 12.2. Any attempted assignment or
transfer by any party not made in compliance with this Section 12.1 shall
be null and void, unless such attempted
61
assignment or transfer is treated as a participation in accordance with
Section 12.3.2. The parties to this Agreement acknowledge that clause (ii)
of this Section 12.1 relates only to absolute assignments and this Section
12.1 does not prohibit assignments creating security interests, including,
without limitation, (x) any pledge or assignment by any Lender of all or
any portion of its rights under this Agreement and any Note to a Federal
Reserve Bank, (y) in the case of a Lender which is a Fund, any pledge or
assignment of all or any portion of its rights under this Agreement and any
Note to its trustee in support of its obligations to its trustee or (z) any
pledge or assignment by any Lender of all or any portion of its rights
under this Agreement and any Note to direct or indirect contractual
counterparties in swap agreements relating to the Loans; provided, however,
that no such pledge or assignment creating a security interest shall
release the transferor Lender from its obligations hereunder unless and
until the parties thereto have complied with the provisions of Section
12.3. The Agent may treat the Person which made any Loan or which holds any
Note as the owner thereof for all purposes hereof unless and until such
Person complies with Section 12.3; provided, however, that the Agent may in
its discretion (but shall not be required to) follow instructions from the
Person which made any Loan or which holds any Note to direct payments
relating to such Loan or Note to another Person. Any assignee of the rights
to any Loan or any Note agrees by acceptance of such assignment to be bound
by all the terms and provisions of the Loan Documents. Any request,
authority or consent of any Person, who at the time of making such request
or giving such authority or consent is the owner of the rights to any Loan
(whether or not a Note has been issued in evidence thereof), shall be
conclusive and binding on any subsequent holder or assignee of the rights
to such Loan.
12.1.2 Designated Lenders.
(i) Subject to the terms and conditions set forth in this Section 12.1.2,
any Lender may from time to time elect to designate an Eligible
Designee to provide all or any part of the Loans to be made by such
Lender pursuant to this Agreement; provided that the designation of an
Eligible Designee by any Lender for purposes of this Section 12.1.2
shall be subject to the approval of the Agent (which consent shall not
be unreasonably withheld or delayed). Upon the execution by the
parties to each such designation of an agreement in the form of
Exhibit F hereto (a "Designation Agreement") and the acceptance
thereof by the Agent, the Eligible Designee shall become a Designated
Lender for purposes of this Agreement. The Designating Lender shall
thereafter have the right to permit the Designated Lender to provide
all or a portion of the Loans to be made by the Designating Lender
pursuant to the terms of this Agreement and the making of the Loans or
portion thereof shall satisfy the obligations of the Designating
Lender to the same extent, and as if, such Loan was made by the
Designating Lender. As to any Loan made by it, each Designated Lender
shall have all the rights a Lender making such Loan would have under
this Agreement and otherwise; provided, (x) that all voting rights
under this Agreement shall be exercised solely by the Designating
Lender, (y) each Designating Lender shall remain solely responsible to
the other parties hereto for its obligations under this Agreement,
including the obligations of a Lender in respect of Loans made by its
Designated Lender and (z) no Designated Lender shall be entitled to
reimbursement under Article III hereof for
62
any amount which would exceed the amount that would have been payable
by the Borrower to the Lender from which the Designated Lender
obtained any interests hereunder. No additional Notes shall be
required with respect to Loans provided by a Designated Lender;
provided, however, to the extent any Designated Lender shall advance
funds, the Designating Lender shall be deemed to hold the Notes in its
possession as an agent for such Designated Lender to the extent of the
Loan funded by such Designated Lender. Such Designating Lender shall
act as administrative agent for its Designated Lender and give and
receive notices and communications hereunder. Any payments for the
account of any Designated Lender shall be paid to its Designating
Lender as administrative agent for such Designated Lender and neither
the Borrower nor the Agent shall be responsible for any Designating
Lender's application of such payments. In addition, any Designated
Lender may (1) with notice to, but without the consent of the Borrower
or the Agent, assign all or portions of its interests in any Loans to
its Designating Lender or to any financial institution consented to by
the Agent providing liquidity and/or credit facilities to or for the
account of such Designated Lender and (2) subject to advising any such
Person that such information is to be treated as confidential in
accordance with Section 9.11, disclose on a confidential basis any
non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any guarantee, surety or credit
or liquidity enhancement to such Designated Lender.
(ii) Each party to this Agreement hereby agrees that it shall not institute
against, or join any other Person in instituting against, any
Designated Lender any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceedings under any
federal or state bankruptcy or similar law for one year and a day
after the payment in full of all outstanding senior indebtedness of
any Designated Lender; provided that the Designating Lender for each
Designated Lender hereby agrees to indemnify, save and hold harmless
each other party hereto for any loss, cost, damage and expense arising
out of its inability to institute any such proceeding against such
Designated Lender. This Section 12.1.2 shall survive the termination
of this Agreement.
12.2. Participations.
12.2.1 Permitted Participants; Effect. Any Lender may at any time sell
to one or more banks or other entities ("Participants") participating
interests in any Outstanding Credit Exposure of such Lender, any Note held
by such Lender, any Commitment of such Lender or any other interest of such
Lender under the Loan Documents. In the event of any such sale by a Lender
of participating interests to a Participant, such Lender's obligations
under the Loan Documents shall remain unchanged, such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, such Lender shall remain the owner of its Outstanding Credit
Exposure and the holder of any Note issued to it in evidence thereof for
all purposes under the Loan Documents, all amounts payable by the Borrower
under this Agreement shall be determined as if such Lender had not sold
such participating interests, and the Borrower and the Agent shall
63
continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under the Loan Documents.
12.2.2 Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other than
any amendment, modification or waiver with respect to any Credit Extension
or Commitment in which such Participant has an interest which would require
consent of all of the Lenders pursuant to the terms of Section 8.2.
12.2.3 Benefit of Certain Provisions. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in Section
11.1 in respect of its participating interest in amounts owing under the
Loan Documents to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under the Loan Documents,
provided that each Lender shall retain the right of setoff provided in
Section 11.1 with respect to the amount of participating interests sold to
each Participant. The Lenders agree to share with each Participant, and
each Participant, by exercising the right of setoff provided in Section
11.1, agrees to share with each Lender, any amount received pursuant to the
exercise of its right of setoff, such amounts to be shared in accordance
with Section 11.2 as if each Participant were a Lender. The Borrower
further agrees that each Participant shall be entitled to the benefits of
Sections 3.1, 3.2, 3.4 and 3.5 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to Section 12.3,
provided that (i) a Participant shall not be entitled to receive any
greater payment under Section 3.1, 3.2 or 3.5 than the Lender who sold the
participating interest to such Participant would have received had it
retained such interest for its own account, unless the sale of such
interest to such Participant is made with the prior written consent of the
Borrower, and (ii) any Participant not incorporated under the laws of the
United States of America or any State thereof agrees to comply with the
provisions of Section 3.5 to the same extent as if it were a Lender.
12.3. Assignments.
12.3.1 Permitted Assignments. Any Lender may at any time assign to one
or more banks or other entities ("Purchasers") all or any part of its
rights and obligations under the Loan Documents. Such assignment shall be
evidenced by an agreement substantially in the form of Exhibit C or in such
other form as may be agreed to by the parties thereto (each such agreement,
an "Assignment Agreement"). Each such assignment with respect to a
Purchaser which is not a Lender or an Affiliate of a Lender or an Approved
Fund shall either be in an amount equal to the entire applicable Commitment
and Outstanding Credit Exposure of the assigning Lender or (unless each of
the Borrower and the Agent otherwise consents) be in an aggregate amount
not less than $5,000,000. The amount of the assignment shall be based on
the Commitment or, if the Commitments have been terminated, the Outstanding
Credit Exposure subject to the assignment, determined as of the date of
such assignment or as of the "Trade Date," if the "Trade Date" is specified
in the Assignment Agreement. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement, except that this sentence shall not apply
to rights in respect of outstanding Competitive Loans.
64
12.3.2 Consents. The consent of the Borrower shall be required prior
to an assignment becoming effective unless the Purchaser is a Lender, an
Affiliate of a Lender or an Approved Fund, provided that the consent of the
Borrower shall not be required if (i) a Default has occurred and is
continuing or (ii) such assignment is in connection with the physical
settlement of any Lender's obligations to direct or indirect contractual
counterparties in swap agreements relating to the Loans; provided, that the
assignment without the Borrower's consent pursuant to clause (ii) shall not
increase the Borrower's liability under Section 3.5. The consent of the
Agent, each Issuing Bank and the Swingline Lender shall be required prior
to an assignment becoming effective. Any consent required under this
Section 12.3.2 shall not be unreasonably withheld or delayed.
12.3.3 Effect; Effective Date. Upon (i) delivery to the Agent of an
Assignment Agreement, together with any consents required by Sections
12.3.1 and 12.3.2, and (ii) payment of a $3,500 fee to the Agent for
processing such assignment (unless such fee is waived by the Agent or
unless such assignment is made to such assigning Lender's Affiliate), such
assignment shall become effective on the effective date specified in such
assignment. The Assignment Agreement shall contain a representation and
warranty by the Purchaser to the effect that none of the funds, money,
assets or other consideration used to make the purchase and assumption of
the Commitment and Outstanding Credit Exposure under the applicable
Assignment Agreement constitutes "plan assets" as defined under ERISA and
that the rights, benefits and interests of the Purchaser in and under the
Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser shall for all purposes be
a Lender party to this Agreement and any other Loan Document executed by or
on behalf of the Lenders and shall have all the rights, benefits and
obligations of a Lender under the Loan Documents, to the same extent as if
it were an original party thereto, and the transferor Lender shall be
released with respect to the Commitment and Outstanding Credit Exposure, if
any, assigned to such Purchaser without any further consent or action by
the Borrower, the Lenders or the Agent. In the case of an assignment
covering all of the assigning Lender's rights, benefits and obligations
under this Agreement, such Lender shall cease to be a Lender hereunder but
shall continue to be entitled to the benefits of, and subject to, those
provisions of this Agreement and the other Loan Documents which survive
payment of the Obligations and termination of the Loan Documents. Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 12.3 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with Section 12.2. Upon the
consummation of any assignment to a Purchaser pursuant to this Section
12.3.3, the transferor Lender, the Agent and the Borrower shall, if the
transferor Lender or the Purchaser desires that its Loans be evidenced by
Notes, make appropriate arrangements so that, upon cancellation and
surrender to the Borrower of the Notes (if any) held by the transferor
Lender, new Notes or, as appropriate, replacement Notes are issued to such
transferor Lender, if applicable, and new Notes or, as appropriate,
replacement Notes, are issued to such Purchaser, in each case in principal
amounts reflecting their respective Commitments (or, if such Commitments
have been terminated, their respective Outstanding Credit Exposure), as
adjusted pursuant to such assignment.
65
12.3.4 Register. The Agent, acting solely for this purpose as an agent
of the Borrower (and the Borrower hereby designates the Agent to act in
such capacity), shall maintain at one of its offices in New York, New York
a copy of each Assignment and Assumption delivered to it and a register
(the "Register") for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of and interest on
the Loans owing to, each Lender pursuant to the terms hereof from time to
time and whether such Lender is an original Lender or assignee of another
Lender pursuant to an assignment under this Section 13.3. The entries in
the Register shall be conclusive, absent manifest error and the Borrower,
the Agent and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.
12.4. Dissemination of Information. The Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries; provided
that each Transferee and prospective Transferee agrees to be bound by Section
9.11 of this Agreement.
12.5. Tax Certifications. If any interest in any Loan Document is
transferred to any Transferee which is not incorporated under the laws of the
United States or any State thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to comply with
the provisions of Section 3.5(iv).
ARTICLE XIII
NOTICES
13.1. Notices.
(a) Except in the case of notices and other communications expressly
permitted to be given by telephone (and subject to paragraph (b) below), all
notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(i) if to the Borrower, to it at Ameren Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President
and Treasurer (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(ii) if to the Agent, to JPMorgan Chase Bank, Loan and Agency Services
Group, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to JPMorgan Chase
Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
66
(iii)if to any other Lender or Issuing Bank, to it at its address(or
telecopy number) set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders and the Issuing
Banks hereunder may be delivered or furnished by electronic communications
pursuant to procedures approved by the Agent; provided that the foregoing shall
not apply to notices pursuant to Article II unless otherwise agreed by the Agent
and the applicable Lender. The Agent or the Borrower may, in its discretion,
agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of
such procedures may be limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
13.2. Change of Address. The Borrower, the Agent, any Issuing Bank and any
Lender may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Borrower, the Agent, the Issuing
Banks and the Lenders and each party has notified the Agent by facsimile
transmission or telephone that it has taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, NEW YORK.
15.2 CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE
COURT SITTING IN NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
67
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER
IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER
AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW
YORK, NEW YORK.
15.3 WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT, EACH ISSUING BANK AND
EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
ARTICLE XVI
TERMINATION OF EXISTING CREDIT AGREEMENTS; WAIVER OF CERTAIN
PROVISIONS UNDER THE EXISTING CREDIT AGREEMENTS
The Borrower, the Lenders, Bank One, N.A., as administrative agent under
the Existing Three-Year Credit Agreement, and the Agent agree that upon (i) the
execution and delivery of this Agreement and the Five-Year Credit Agreement by
each of the parties hereto and (ii) satisfaction (or waiver by the Agent and the
Lenders) of the conditions precedent set forth in Section 4.1, the "Commitments"
under and as defined in each of the Existing Credit Agreements shall be reduced
to zero and terminated permanently as of the Closing Date. All facility fees and
related fees payable pursuant to the Existing Credit Agreements shall be due and
payable on the effective date of the termination of each such agreement, which
date shall be the Closing Date, and the Existing Credit Agreements shall
terminate as of the Closing Date (except for those provisions that survive the
termination thereof). As of the Closing Date, the Agent and each of the Lenders
hereunder party to the Existing Credit Agreements, upon the satisfaction of the
conditions precedent set forth in Section 4.1, hereby waive the Borrower's
compliance with any notice requirements set forth in each of the Existing Credit
Agreements with respect to (a) the prepayment of all of the "Obligations"
outstanding under (and as defined in) each of the Existing Credit Agreements and
(b) the termination of the "Commitments" under (and as defined in) each of the
Existing Credit Agreements.
[Signature Pages Follow]
68
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have executed
this Agreement as of the date first above written.
AMEREN CORPORATION,
by
/s/ Warner ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: Warner ▇. ▇▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
JPMORGAN CHASE BANK, as Agent, as a
Lender and as an Issuing Bank,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
BARCLAYS BANK PLC, as Syndication Agent
and as a Lender,
by
/s/ Sydney ▇. ▇▇▇▇▇▇
----------------------------------------
Name: Sydney ▇. ▇▇▇▇▇▇
Title: Director
BANK OF AMERICA, N.A.,
by
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Principal
SIGNATURE PAGE TO
AMEREN CORPORATION THREE-YEAR REVOLVING CREDIT AGREEMENT
BNP PARIBAS,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
CITIBANK, N.A.,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Director
COMMERCE BANK NATIONAL ASSOCIATION,
by
/s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
FIFTH THIRD BANK (SOUTHERN INDIANA),
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FIRST BANK,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
SIGNATURE PAGE TO
AMEREN CORPORATION THREE-YEAR REVOLVING CREDIT AGREEMENT
MELLON BANK, N.A.,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
NATIONAL CITY BANK OF THE MIDWEST,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
THE BANK OF NEW YORK,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE BANK OF TOKYO- MITSUBISHI, LTD.,
CHICAGO BRANCH,
by
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Deputy General Manager
THE NORTHERN TRUST COMPANY,
by
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO
AMEREN CORPORATION THREE-YEAR REVOLVING CREDIT AGREEMENT
U.S. BANK NATIONAL ASSOCIATION,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Sr. Vice President
UMB BANK, NATIONAL ASSOCIATION,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Sr. Vice President
WACHOVIA BANK, N.A.,
by
/s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ STREET COMMITMENT CORP,
by
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
SIGNATURE PAGE TO
AMEREN CORPORATION THREE-YEAR REVOLVING CREDIT AGREEMENT