Exhibit B-3
K&S DRAFT 7-14-03
================================================================================
FOURTH AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of July 29, 2003
By and Among
▇▇▇▇▇▇ FUEL, INC.,
THE
BANKS
NOW OR HEREAFTER
PARTY HERETO
and
BANK ONE, N.A.
(MAIN OFFICE: CHICAGO, ILLINOIS),
AS AGENT
BANC ONE CAPITAL MARKETS, INC.,
AS ARRANGER AND BOOK RUNNER
================================================================================
TABLE OF CONTENTS
PAGE
Article I REVOLVING CREDIT LOANS...............................................2
Section 1.01. Revolving Credit Loans..................................2
Section 1.02. B Notes.................................................2
Section 1.03. Purpose of Borrowing....................................3
Section 1.04. Payments and Prepayments................................3
Section 1.05. Federal Funds...........................................4
Section 1.06. Existing B Note.........................................4
Section 1.07. Reduction of Commitment.................................4
Section 1.08. Fees; Capital Adequacy Requirements.....................4
Section 1.09. Notification of Advances, Interest Rates,
Repayments and Commitment Reductions ...................5
Section 1.10. Non-Receipt of Funds by the Agent.......................5
Section 1.11. No Deduction; Certain Taxes.............................6
Article II COMMERCIAL PAPER OPERATIONS.........................................7
Section 2.01. Agency; Deposit of A Notes..............................7
Section 2.02. Term of A Notes; Principal Amount; Issuance.............7
Section 2.03. Note Redemption Account.................................8
Section 2.04. Termination Date........................................8
Section 2.05. Modification or Termination.............................9
Section 2.06. Substitution of Bank...................................10
Article III REPRESENTATIONS AND WARRANTIES....................................10
Section 3.01. Organization, Corporate Powers, etc....................10
Section 3.02. Corporate Authority, etc...............................10
Section 3.03. Title to Properties....................................11
Section 3.04. Litigation.............................................11
Section 3.05. Agreements.............................................11
Section 3.06. Governmental Approvals.................................11
Section 3.07. Plan. 11
Section 3.08. Investment Company Act.................................11
Section 3.09. Security Agreement.....................................12
Section 3.10. Regulation U...........................................12
Section 3.11. Requirements of Law; Taxes.............................12
Section 3.12. Financial Data.........................................12
Section 3.13. Absence of Change......................................12
Section 3.14. Representations and Warranties.........................13
Section 3.15. Accuracy of Information................................13
Section 3.16. Ownership and Management...............................13
i
Article IV CONDITIONS PRECEDENT...............................................13
Section 4.01. Conditions Precedent to Effectiveness of this
Agreement .............................................13
Section 4.02. Conditions Precedent to Each Extension of Credit.......16
Article V AFFIRMATIVE COVENANTS...............................................16
Section 5.01. Corporate Existence....................................16
Section 5.02. Compliance with Documents; Obligations and Taxes.......16
Section 5.03. Financial Statements...................................17
Section 5.04. Inspection Rights......................................17
Section 5.05. Maintenance of Properties, Etc.........................17
Section 5.06. Further Assurances.....................................18
Section 5.07. Default Notice; Litigation Notice......................18
Section 5.08. Operating Account .....................................18
Section 5.09. Loan Documents and IESU................................18
Article VI NEGATIVE COVENANTS.................................................19
Section 6.01. Indebtedness...........................................19
Section 6.02. Liens. 19
Section 6.03. Activities.............................................19
Section 6.04. Sales, etc.............................................20
Section 6.05. Amendments, etc........................................20
Section 6.06. Investments............................................20
Section 6.07. Dividends; Issuance of Stock...........................20
Section 6.08. No Other Accounts......................................20
Section 6.09. Offering Materials.....................................21
Article VII...................................................................21
Article VII DEFAULTS..........................................................21
Section 7.01. Defaults...............................................21
Article VIII DEFINITIONS......................................................24
Section 8.01. Definitions............................................24
Article IX MISCELLANEOUS......................................................30
Section 9.01. Notices................................................30
Section 9.02. Survival of Agreement..................................30
Section 9.03. Expenses of the Agent and the Banks....................31
Section 9.04. Applicable Law.........................................31
Section 9.05. Modification of Agreement..............................31
Section 9.06. Waiver of Rights.......................................32
ii
Section 9.07. Extension of Maturity..................................32
Section 9.08. Recourse Limited.......................................32
Section 9.09. Counterparts...........................................32
Section 9.10. Severability...........................................33
Section 9.11. Bankruptcy Petition Against the Company................33
Section 9.12. Offset. 33
Section 9.13. Ratable Payments.......................................33
Section 9.14. Numbers of Documents...................................34
Section 9.15. Headings...............................................34
Section 9.16. Entire Agreement.......................................34
Section 9.17. Obligations Outstanding under the 1987 Credit
Agreement .............................................34
Article X THE AGENT...........................................................34
Section 10.01. Appointment...........................................34
Section 10.02. Powers................................................35
Section 10.03. General Immunity......................................35
Section 10.04. No Responsibility for Loans, Recitals, etc............35
Section 10.05. Action on Instructions of Banks.......................35
Section 10.06. Employment of Agents and Counsel......................35
Section 10.07. Reliance on Documents; Counsel........................36
Section 10.08. Agent's Reimbursement and Indemnification.............36
Section 10.09. Rights as a Bank......................................36
Section 10.10. Bank Credit Decision..................................36
Section 10.11. Successor Agent.......................................37
Article XI BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS..................37
Section 11.01. Successors and Assigns................................37
Section 11.02. Participations........................................38
Section 11.03. Assignments...........................................38
Section 11.04. Dissemination of Information..........................39
Section 11.05. Tax Treatment.........................................39
iii
SCHEDULE I - ADDRESSES FOR NOTICES
EXHIBIT A - CERTIFICATE OF OFFICER OF THE COMPANY
EXHIBIT B - CERTIFICATE OF OFFICER OF IESU
EXHIBIT C - FORM OF COMMERCIAL PAPER NOTE
EXHIBIT D - FORM OF B NOTE
EXHIBIT E - SECOND AMENDED AND RESTATED CONSENT AND AGREEMENT
EXHIBIT F - THIRD AMENDED AND RESTATED DEPOSITARY AGREEMENT
EXHIBIT G - SECOND AMENDED AND RESTATED SECURITY AGREEMENT
EXHIBIT H - ACKNOWLEDGEMENT OF DEPOSITARY
EXHIBIT I - AMENDMENT TO FUEL LEASE
EXHIBIT J - ASSIGNMENT AGREEMENT
iv
FOURTH AMENDED AND RESTATED
CREDIT AGREEMENT
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (this "AGREEMENT") dated
as of July 29, 2003, by and among ▇▇▇▇▇▇ FUEL, INC., a Delaware corporation
(hereinafter called the "COMPANY"); the Banks now or hereafter party hereto; and
BANK ONE, N.A. (main office: Chicago, Illinois), individually (in such capacity
hereinafter called "BANK ONE") and as Agent (in such capacity hereinafter called
the "AGENT").
W I T N E S S E T H:
WHEREAS, the Company and Bank One are parties to that certain Third
Amended and Restated Credit Agreement dated as of August 3, 2001, (as amended by
four Amendments thereto dated as of August 2, 2002, October 31, 2002, January
31, 2003 and April 30, 2003, respectively, the "2001 CREDIT AGREEMENT") pursuant
to which Bank One agreed to make available to the Company revolving credit loans
on the terms and conditions set forth therein; and
WHEREAS, the 2001 Credit Agreement amended and restated in its entirety
that certain Second Amended and Restated Credit Agreement dated as of September
17, 1987 (the "1987 CREDIT AGREEMENT"), as it had been previously amended and
supplemented, pursuant to which Bank One agreed to make available to the Company
revolving credit loans on the terms and conditions set forth therein; and
WHEREAS, the 1987 Credit Agreement amended and restated in its entirety
that certain Amended and Restated Credit Agreement dated as of December 21,
1978, (the "ORIGINAL CREDIT AGREEMENT") as it had been previously amended and
supplemented pursuant to Supplemental Agreement dated as of June 1, 1981,
Supplemental Agreement II dated as of March 13, 1984, and Supplemental Agreement
III dated as of December 31, 1984; and
WHEREAS, the Company has purchased Nuclear Fuel and leased such Nuclear
Fuel to Interstate Power & Light Company (formerly IES Utilities Inc., formerly
Iowa Electric Power and Light Company), an Iowa corporation (hereinafter called
"IP&L"), pursuant to the Fuel Lease; and
WHEREAS, in order to finance the cost of purchasing and owning the
Nuclear Fuel, the Company has: (a) issued and sold promissory notes in the
United States commercial paper market and (b) obtained a commitment from Bank
One pursuant to the 2001 Credit Agreement to make revolving credit loans to the
Company (the "EXISTING Loans"); and
WHEREAS, the Company now proposes to issue and sell its Senior Secured
Notes (as defined herein) in an aggregate principal amount of $30,000,000 to the
Note Purchaser (as defined herein), and in connection therewith, has requested
that Bank One (i) enter into and accept appointment as the Collateral Agent
under the Collateral Agency Agreement (as such terms are defined herein) and
(ii) amend and restate the 2001 Credit Agreement and the Second Amended and
Restated Security Agreement entered into in connection therewith to reflect
certain modifications thereto necessitated by the sale of the Senior Secured
Notes.
2
NOW THEREFORE, in consideration of the promises and of the mutual
covenants herein contained, the parties hereto agree that, effective upon the
satisfaction of the conditions set forth in Section 4.01 hereinbelow, the 2001
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
ARTICLE I
REVOLVING CREDIT LOANS
SECTION 1.01. REVOLVING CREDIT LOANS.
Subject to the terms and conditions hereof, each Bank severally agrees
to make loans (hereinafter sometimes called the "REVOLVING CREDIT LOANS" or the
"LOANS") to the Company from the date hereof until the Termination Date in an
aggregate principal amount at any one time outstanding up to its ratable portion
of the amount of the excess of (I) the sum of (a) the Aggregate Commitment, plus
(b) the amount of funds on deposit in the Note Redemption Account, over (II) the
result of (x) the aggregate principal amounts of A Notes then outstanding minus
(y) that portion of the proceeds, if any, of such Loans to be applied on the
same day to the payment of the principal amount of and/or accrued interest on
the A Notes; provided, however, that in no event shall the aggregate principal
amount of the Loans of any Bank outstanding exceed such Bank's Commitment. The
Company shall give the Agent prior written or facsimile notice (or telephone
notice confirmed in writing) no later than 11:30 a.m. Chicago time on the date
when such Revolving Credit Loans are requested, which notice shall specify the
proposed date and amount thereof. Each Advance hereunder shall consist of Loans
made from the several Banks ratably in proportion to the ratio that their
respective Commitments bear to the Aggregate Commitment. Each Advance hereunder
shall be in the principal amount of $1,000,000 or any integral multiple of
$100,000 in excess thereof. Not later than 12:30 p.m. (Chicago time) on each
such proposed borrowing date, each Bank shall make available its Loan or Loans
in funds immediately available in Chicago to the Agent at its address specified
pursuant to Section 9.01. The Agent will promptly make the funds so received
from the Banks available to the Company on such proposed date by crediting the
amount thereof to the accounts provided for in the following sentence. The
proceeds of all Loans shall be credited to the accounts maintained with the
Depositary as follows: first, to the extent needed to provide, in the Note
Redemption Account, funds sufficient to pay all outstanding A Notes maturing on
or before the date of the making of the Loan, such Loans shall be credited to
the Note Redemption Account, and second, any balance shall be credited to the
Operating Account. Until the Termination Date, the Company may borrow, prepay
and reborrow hereunder from the Banks in accordance with this Section and
Section 1.04 hereof.
SECTION 1.02. B NOTES.
All Revolving Credit Loans by a Bank shall be evidenced by a B Note
payable to such Bank. The date and amount of each such Loan, and the date and
amount of each payment of principal of such Loan, shall be recorded on the
schedule annexed to such B Note, but failure of a Bank to so record shall not
relieve the Company of its obligation to repay outstanding Loans and all
interest thereon in accordance herewith. The aggregate unpaid amount of all such
3
Loans as set forth in such schedule shall be the principal amount owing on such
B Note. The principal of such B Note shall be payable on the Termination Date,
and each such Loan shall bear interest (computed on the basis of the actual
number of days elapsed in a year of 365 or 366 days, as applicable) from the
date of such Loan until maturity on the unpaid principal amount thereof at a
rate per annum equal to the Alternate Base Rate in effect from time to time,
payable quarterly on the last day of February, May, August and November in each
year in respect of the next preceding calendar quarter or period; provided,
however, that any principal or other amount not paid when due hereunder shall
bear interest at the Alternate Base Rate plus 2%, payable on demand. In
computing interest on the B Notes, the date of the making of any Loan evidenced
thereby shall be included and, subject to Section 1.05, the date of payment
shall be excluded.
SECTION 1.03. PURPOSE OF BORROWING.
The Company agrees that it will not borrow hereunder in an amount in
excess of that needed on a current basis to finance the purchase and ownership
of Nuclear Fuel to lease to IP&L pursuant to the Fuel Lease.
SECTION 1.04. PAYMENTS AND PREPAYMENTS.
(a) Optional Prepayment. The Company may, upon one Business Day's prior
written notice to the Agent (such notice being irrevocable) stating the proposed
date and aggregate principal amount of prepayment, prepay the B Notes, in whole
at any time or ratably in part, from time to time without penalty or premium.
Each partial prepayment pursuant to this paragraph (a) shall be in a minimum
aggregate amount of $100,000.
(b) Mandatory Payments and Prepayments. All payments by IP&L under the
Fuel Lease (including all payments of Basic Rent), shall be deposited in the
Operating Account and, to the extent not required to be deposited in the Note
Redemption Account because of insufficient funds therein for the payment of A
Notes that have matured or will mature on the date of determination, shall be
paid out of the Operating Account and applied (or held for application) to the
Obligations to the extent and in the manner provided in the Security Agreement.
The Company shall prepay the Notes (or cause funds to be held for payment in the
Note Redemption Account, in the case of the A Notes) in an amount by which the
aggregate outstanding principal amount of the Notes shall at any time exceed the
sum of the Aggregate Commitment then in effect plus the amount of funds on
deposit in the Note Redemption Account.
(c) Payment of Interest. Each payment or prepayment of principal
hereunder shall be accompanied by the payment of accrued interest on the amount
of such payment or prepayment to the date thereof, excluding the date of payment
or prepayment as aforesaid.
(d) Time and Place of Payment. The Company shall make any prepayment of
Notes described in (a) or (b) above not later than 12:00 noon (Chicago time) on
the day when due in Dollars to the Agent at its address referred to in Section
9.01 in same day funds. The Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest ratably
to the Banks. Upon receipt of a Notice of Assignment (attached hereto as Exhibit
A to the Form of Assignment Agreement, attached hereto as Exhibit J), from and
after the effective date specified in such Notice of Assignment Agreement, the
Agent shall make all payments hereunder in respect of the interest assigned
4
thereby to the Purchaser thereunder, and the parties to such Assignment
Agreement shall make all appropriate adjustments in such payments for periods
prior to such effective date directly between themselves.
SECTION 1.05. FEDERAL FUNDS.
All payments, prepayments and other transfers of funds under this
Agreement shall be made in federal funds or in funds otherwise immediately
available in Chicago, unless the recipient thereof shall otherwise agree.
Notwithstanding the preceding sentence, distributions by the Agent to any Bank
shall be made to such location or office as such Bank may direct. Each payment
hereunder shall be made by 12:00 noon, Chicago time, on the day when due. Funds
received after such hour may be deemed to have been received on the next
succeeding Business Day.
SECTION 1.06. EXISTING B NOTE.
Inasmuch as the B Notes executed by the Company and delivered to the
Banks as of the Effective Date constitute, to the extent of the unpaid principal
balance of the Existing Loans on the Effective Date, an extension and renewal of
the Existing B Note, each Bank shall, upon receipt of its B Note, endorse on the
schedule attached thereto its ratable share (based on the proportion that such
Bank's Commitment bears to the Aggregate Commitment) of the amount of the unpaid
principal balance, if any, of the Existing B Note, whereupon Bank One shall ▇▇▇▇
the Existing B Note "Cancelled by Renewal" and return it to the Company.
SECTION 1.07. REDUCTION OF COMMITMENT.
The Company may from time to time reduce the Aggregate Commitment in
effect at the commencement of any calendar quarter by $5,000,000 or any integral
multiple of $100,000 in excess thereof to an amount not less than the principal
amount of A Notes and Revolving Credit Loans then outstanding after deducting
therefrom the amount of funds on deposit in the Note Redemption Account;
provided that, the Company shall give the Agent written notice of such reduction
not less than 5 days prior to the commencement of such quarter. Any such
reduction shall be allocated ratably among the Banks in the proportion that each
Bank's Commitment bears to the Aggregate Commitment.
SECTION 1.08. FEES; CAPITAL ADEQUACY REQUIREMENTS.
(a) Participation Fee. The Company shall pay to the Agent for the
account of each Bank a one-time participation fee equal to _____% of such Bank's
Commitment, payable on the Effective Date.
(b) Facility Fee. The Company shall pay to the Agent for the account of
each Bank a facility fee of .15% per annum (computed on the basis of a year of
360 days for the actual number of days elapsed) on such Bank's Commitment
(without regard to usage) from April 30, 2003 (or, as appropriate, the effective
date of any assignment to such Bank pursuant to Section 11.03) to and including
the Termination Date, payable quarterly, in arrears, on the last day of each
February, May, August and November and on the Termination Date.
5
(c) Administrative Agency Fee. The Company will pay to the Agent, for
its services as such, an Administrative Agency fee of $5,000, payable annually
in arrears on each anniversary of the Effective Date and, in any event, on the
Termination Date.
(d) Capital Adequacy. If a Bank (hereinafter an "AFFECTED BANK") shall
have determined that the adoption, after the date hereof, of any applicable law,
rule or regulation regarding capital adequacy, or any change therein, by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by such Bank with any
request or directive regarding capital adequacy (whether or not having the force
of law) of any such authority, central bank or comparable agency, affects or
would affect the amount of capital required or expected to be maintained by such
Bank or any corporation controlling such Bank and that the amount of such
capital is increased by or based upon the existence of such Bank's commitment to
lend hereunder and other commitments of this type, then, upon demand by such
Affected Bank (with a copy of such demand to the Agent), the Company shall
immediately pay to the Agent for the account of such Affected Bank, from time to
time as specified by such Affected Bank, additional amounts sufficient to
compensate such Affected Bank or such corporation in the light of such
circumstances, to the extent that such Affected Bank reasonably determines such
increase in capital to be allocable to the existence of such Affected Bank's
Commitment. A certificate as to such amounts submitted to the Company and the
Agent by such Affected Bank, describing in reasonable detail the manner in which
such amounts have been calculated, shall be conclusive and binding for all
purposes, absent manifest error, provided that the determination and allocation
thereof shall have been made by such Affected Bank in good faith.
Notwithstanding the foregoing, no Affected Bank shall be entitled to demand
compensation or be compensated pursuant to this Section 1.08(d) to the extent
that such compensation relates to any period of time more than 60 days prior to
the date upon which such Affected Bank first notified the Company of the
occurrence of the event entitling such Affected Bank to such compensation
(unless, and to the extent, that any such compensation so demanded shall relate
to the retroactive application of any event so notified to the Company).
SECTION 1.09. NOTIFICATION OF ADVANCES, INTEREST RATES, REPAYMENTS AND
COMMITMENT REDUCTIONS.
Promptly after receipt thereof, the Agent will notify each Bank of the
contents of each Aggregate Commitment reduction notice, borrowing notice, and
repayment notice received by it hereunder. The Agent will give each Bank prompt
notice of each change in the Alternate Base Rate.
SECTION 1.10. NON-RECEIPT OF FUNDS BY THE AGENT.
Unless the Company or a Bank, 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 Bank, the proceeds of a Loan or (ii) in the case of the
Company, a payment of principal, interest or fees to the Agent for the account
of the Banks, 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 Bank or the Company, as the case may be, has not
in fact made such payment to the Agent, the recipient of such payment shall, on
6
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 (i) in the case of payment by
a Bank, the Federal Funds Effective Rate for such day or (ii) in the case of
payment by the Company, the interest rate applicable to the relevant Loan.
SECTION 1.11. NO DEDUCTION; CERTAIN TAXES.
(a) All payments by the Company hereunder shall be made free and clear
of and without deduction for all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Bank, taxes imposed on its net income, and
franchise or similar taxes imposed on it, by any jurisdiction, unless such Bank
would not have had such taxes imposed on it by such jurisdiction but for such
Bank's having entered into this Agreement, having consummated the transactions
contemplated hereby or having received payments hereunder or under the other
Loan Documents (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "TAXES").
If the Company shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder to any Bank, (i) the sum payable shall be increased
as may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 1.11(a))
such Bank receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Company shall make such deductions and (iii) the
Company shall pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law.
(b) In addition, the Company agrees to pay any present or future stamp
or documentary taxes or any other excise or property taxes, or similar charges
or levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or the
Notes (hereinafter referred to as "OTHER TAXES").
(c) The Company will indemnify each Bank for the full amount of Taxes
and Other Taxes (including, without limitation, any Taxes and any Other Taxes
imposed by any jurisdiction on amounts payable under this Section 1.11) paid by
such Bank and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be made within 30 days
from the date such Bank makes written demand therefor. The Company's and each
Bank's obligations under this Section 1.11 shall survive the payment in full of
all amounts owing under this Agreement and the Notes.
(d) Within 30 days after the date of any payment of Taxes, the Company
will furnish to the relevant Bank the original or a certified copy of a receipt
evidencing payment thereof.
(e) Each Bank not incorporated in the United States or a jurisdiction
within the United States shall, on or prior to the date it becomes a Bank
hereunder, deliver to the Company and the Agent such certificates, documents or
other evidence, as required by the Code, or treasury regulations issued pursuant
thereto, including Internal Revenue Service Form 4224, Form 1001, Form W-8 BEN
or Form W-8 ECI and any other certificate or statement of exemption required by
7
Treasury Regulation Section l.1441-1(a) or Section 1.1441-6(c) or any subsequent
version thereof, properly completed and duly executed by such Bank establishing
that it is (i) not subject to withholding under the Code or (ii) totally exempt
from United States of America tax under a provision of an applicable tax treaty.
Each Bank shall promptly notify the Company and the Agent of any change in its
Lending Office and shall deliver to the Company and the Agent together with such
notice such certificates, documents or other evidence referred to in the
immediately preceding sentence. Unless the Company and the Agent have received
forms or other documents satisfactory to them indicating that payments hereunder
are not subject to United States of America withholding tax or are subject to
such tax at a rate reduced by an applicable tax treaty, the Company or the Agent
shall withhold taxes from such payments at the applicable statutory rate in the
case of payments to or for any Bank organized under the laws of a jurisdiction
outside the United States of America. Each Bank represents and warrants that
each such form supplied by it to the Agent and the Company pursuant to this
Section 1.11, and not superseded by another form supplied by it is or will be,
as the case may be, complete and accurate.
(f) Any Bank claiming any additional amounts payable pursuant to this
Section 1.11 shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document requested by the Company or to
change the jurisdiction of its Lending Office if the making of such a filing or
change would avoid the need for or reduce the amount of any such additional
amounts which may thereafter accrue and would not, in the sole determination of
such Bank, be otherwise disadvantageous to such Bank.
ARTICLE II
COMMERCIAL PAPER OPERATIONS
SECTION 2.01. AGENCY; DEPOSIT OF A NOTES.
The Company has appointed ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank (the "DEPOSITARY") as
its agent for the issuance, delivery and payment of its promissory notes to be
offered in the commercial paper market, which notes will be in the form of A
Notes. The Company shall deposit A Notes with the Depositary in accordance with
the terms of the Depositary Agreement.
SECTION 2.02. TERM OF A NOTES; PRINCIPAL AMOUNT; ISSUANCE.
(a) No A Note shall mature later than 270 days from the date of
issuance thereof and, in no event, later than the Termination Date in effect at
the time of its issuance.
(b) The aggregate principal amount of the A Notes at any time
outstanding shall not exceed the amount of the excess of (i) the sum of the
Aggregate Commitment plus the amount of funds on deposit in the Note Redemption
Account, over (ii) the aggregate principal amount of the B Notes then
outstanding.
(c) The proceeds of the sale of A Notes shall be credited: first, to
the extent needed to provide in the Note Redemption Account funds sufficient to
8
pay all A Notes that have matured or will mature on the date of sale of such A
Notes, to the Note Redemption Account; and second, to the Operating Account.
(d) The Company shall not issue A Notes unless the Required Banks shall
have consented to such issuance. Subject to Sections 2.03 and 2.05 hereof, the
Required Banks shall be deemed to have consented to the issuance of A Notes
unless they shall have instructed the Company to cease issuing A Notes. The
Company shall not, after the receipt of such instructions, issue A Notes until
the Required Banks shall have rescinded such instructions and shall have
consented in writing to the issuance of A Notes. Any instructions by the
Required Banks to cease issuing A Notes and each notice rescinding such
instructions shall be in writing or by facsimile and shall also be given to the
Depositary. The Required Banks hereby agree that they shall not give
instructions to cease issuing A Notes so long as (i) each of the conditions
precedent specified in Article IV hereof with respect to the issuance of A Notes
shall have been satisfied; and (ii) the Operating Account and the Note
Redemption Account and any funds on deposit in either of such Accounts are not
subject to any writ, judgment, warrant of attachment, execution or similar
process; and (iii) none of the events specified in Section 2.05 hereof has
occurred.
SECTION 2.03. NOTE REDEMPTION ACCOUNT.
The Company shall maintain with the Depositary a special purpose
account that shall be designated the "NOTE REDEMPTION ACCOUNT". If at any time
when A Notes mature there are insufficient funds on deposit in the Note
Redemption Account to pay matured and maturing A Notes, the (a) proceeds of
Advances made pursuant to Article I to pay maturing A Notes, or (b) funds on
deposit in the Operating Account shall, to the extent of such deficit, be
deposited in the Note Redemption Account. In the event that the Company, in good
faith, determines that IP&L has become insolvent, the Company may advise the
Depositary to refrain from depositing in the Note Redemption Account funds on
deposit in the Operating Account; provided that after so advising the Depositary
the Company shall not issue A Notes unless the Required Banks shall have
consented in writing to such issuance. Any instruction by the Company to the
Depositary shall be in writing or by facsimile and shall also be given to the
Agent. The right of withdrawal from the Note Redemption Account shall be vested
solely in the Depositary and shall be exercised by it only for the purpose of
paying matured A Notes presented to it for payment. Subject to the rights of the
Company under this Section, on the maturity date of each A Note, the Company
shall cause to be deposited in the Note Redemption Account funds sufficient to
pay all amounts due under such A Note on that date.
SECTION 2.04. TERMINATION DATE.
The "TERMINATION DATE" shall be 5:00 p.m., Chicago time, on April 29,
2004. The Termination Date shall be extended upon agreement of all Banks for
additional periods of 364 days from the Termination Date as theretofore in
effect. Any such extension must be requested at least 60 days prior to the
Termination Date theretofore in effect, and each Bank must respond to such
request at least 30 days prior to such Termination Date; provided that any Bank
that fails to so respond shall be deemed to have declined the requested
extension.
9
SECTION 2.05. MODIFICATION OR TERMINATION.
In the event:
(a) any restrictions are imposed upon the Banks or the Company by any
state or Federal regulatory authority that in the sole judgment of the Required
Banks prevent the Banks from consenting to the issuance or sale of A Notes; or
(b) the Required Banks shall have given notice to the Company and IP&L
that the Required Banks are not reasonably satisfied with any material, adverse
and presently effective change, since the date of this Agreement in the
liability insurance or indemnification protection theretofore afforded the Agent
and the Banks, the Company and IP&L (whether such change results from
legislative act, administrative or judicial determination or otherwise) under
the provisions of the Atomic Energy Act of 1954, as amended (42 U.S.C. ss. 2011
et seq.) (the "ATOMIC ENERGY ACT") or under any other applicable law, rule or
regulation or in the application, interruption or enforcement thereof; or
(c) a nuclear incident, as defined in the Atomic Energy Act, involving
or connected in any way with nuclear fuel owned or leased by IP&L or any
generating facility utilizing such fuel occurs and the Required Banks notify the
Company and IP&L that they reasonably believe such nuclear incident may give
rise to liability, or to damage, destruction or personal injury, in an aggregate
amount in excess of $50,000,000; or
(d) any approval, consent or license required for the operation of the
Generating Facility shall be revoked or withdrawn and shall not be reinstated or
reissued within nine months,
the obligation of the Required Banks to consent to the issuance of A Notes shall
terminate ipso facto. Further, in the event that reserve requirements or any
other regulatory requirements or restrictions (except as provided in Section
1.08(d) hereof) are hereafter imposed upon any Bank at any time that would
affect the profitability to such Bank of the arrangements contemplated by this
Article II, such Bank (hereinafter an "AFFECTED BANK") shall promptly notify the
Company of such requirement or restriction as to its loss of profitability
(specifying the reasons for such loss and setting forth the computation of such
loss in reasonable detail), and the Company shall have the option of (i)
borrowing as contemplated by Article I hereof and terminating the obligation of
the Required Banks to consent to the issuance of A Notes if such would avoid the
loss of profitability of such Affected Bank or (ii) compensating such Affected
Bank for its loss of profitability. If the Company does not exercise such option
within 45 days after receipt of such notice from such Affected Bank, (a) the
obligation of the Required Banks to consent to the issuance of A Notes shall
forthwith terminate without further action or notice on the part of the Banks
and (b) the Company will promptly compensate such Affected Bank for its loss of
profit from the date such Affected Bank advised the Company of such loss until
the earlier of (I) the effective date of any assignment of the Affected Bank's
interests hereunder pursuant to Section 2.06, and (II) the later of the
Termination Date or the date when no A Notes are outstanding. Notwithstanding
the provisions of the preceding two sentences, no Affected Bank shall be
entitled to demand compensation or be compensated thereunder to the extent that
such compensation relates to any period of time more than 60 days prior to the
date upon which such Affected Bank first notified the Company of the occurrence
of the event entitling such Affected Bank to such compensation (unless, and to
10
the extent, that any such compensation so demanded shall relate to the
retroactive application of any event so notified to the Company).
SECTION 2.06. SUBSTITUTION OF BANK.
Each Bank that becomes an Affected Bank, whether pursuant to Section
1.08(d) or Section 2.05, shall be obliged, at the request of the Company and
subject to such Affected Bank receiving payment in full of all amounts owing to
it under this Agreement prior to completion of an assignment, to assign without
recourse or warranty and by an assignment agreement in substantially the form of
Exhibit J attached hereto, all of its rights and obligations hereunder to
another financial institution nominated by the Company (which may be one or more
of the Banks) and willing to participate in the facilities created hereby
through the Termination Date in the place of such Affected Bank; provided, that
such transferee satisfies all the requirements of this Agreement. No such
assignment shall excuse the Company from any payment previously demanded
pursuant to Section 1.08(d) or Section 2.05.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and the Banks that:
SECTION 3.01. ORGANIZATION, CORPORATE POWERS, ETC.
The Company (a) is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware; (b) has the corporate
power and authority, and has obtained all necessary governmental licenses and
permissions, to carry on its business as the owner and lessor of the property
subject to the Fuel Lease; and (c) has the corporate power to execute, deliver
and perform the Loan Documents to which it is a party.
SECTION 3.02. CORPORATE AUTHORITY, ETC.
The execution, delivery and performance by the Company of the Loan
Documents to which it is a party (a) have been duly authorized by all requisite
corporate action on the part of the Company, and (b) will not violate (i) any
provision of law, any order of any court or other governmental agency or the
Certificate of Incorporation or By-laws of the Company or (ii) any indenture,
agreement or other instrument to which the Company is a party, or by which it or
any of its property is bound, or be in conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever, other
than as permitted by Section 6.02, upon any of its property or assets. The Loan
Documents to which the Company is a party are legally binding and enforceable
obligations of the Company, except as the enforceability thereof may be limited
by (x) applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the rights of creditors generally and by general equitable
principles and (y) the rights of owners of Related Nuclear Material.
11
SECTION 3.03. TITLE TO PROPERTIES.
The Company has good and marketable title to all its assets, free and
clear of all mortgages, pledges, liens, charges and other encumbrances, except
such as are not prohibited by Section 6.02.
SECTION 3.04. LITIGATION.
There is no action, suit, proceeding or investigation at law or in
equity or by or before any governmental instrumentality or other agency now
pending or, to the knowledge of the Company, threatened (or any basis therefor)
against or affecting the Company or any property or rights of the Company: (a)
relating to the Loan Documents and the transactions created thereby or (b) that,
if adversely determined, would materially impair the ability of the Company to
perform its obligations under the Loan Documents to which it is a party or would
materially adversely affect the financial condition of the Company, except (x)
any proceedings in connection with any applications or filings that the Company
may make to the Federal Energy Regulatory Commission or to the Securities and
Exchange Commission for any exemptions under the Federal Power Act or the Public
Utility Holding Company Act of 1935 or to any state utility regulatory authority
for any exemptions under state regulatory laws, and (y) any actions, suits,
proceedings, or investigations, which in the judgment of the Company after
consultation with its counsel are without merit.
SECTION 3.05. AGREEMENTS.
The Company is not a party to any agreement other than the agreements
specifically referred to in or contemplated by this Agreement, the Fuel Lease,
the Interim Payment Agreement (as defined in the Fuel Lease), an agreement with
Broad Street with respect to management and advisory services to the Company
(the "MANAGEMENT AGREEMENT")and an agreement with ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. with
respect to sale of A Notes and payment of an initial fee (the "DEALER
AGREEMENT").
SECTION 3.06. GOVERNMENTAL APPROVALS.
No consent, license, order, authorization or approval of, or
registration, declaration or filing with, any governmental or public body or
authority that has not been obtained and is in full force and effect is required
in connection with the execution, delivery and performance by the Company of the
Loan Documents to which it is a party or the issuance or sale of the A Notes or
the activities of the Company contemplated thereby.
SECTION 3.07. PLAN.
There is no Plan with respect to the Company.
SECTION 3.08. INVESTMENT COMPANY ACT.
The Company is not an "investment company" or a company "controlled" by
an "investment company", within the meaning of the Investment Company Act of
1940, as in effect from time to time.
12
SECTION 3.09. SECURITY AGREEMENT.
The Security Agreement creates in favor of the Collateral Agent, for
the benefit of the Secured Parties, a valid and perfected lien on the Collateral
as security for the payment and performance of the Obligations and the A Notes,
prior to all other liens and enforceable as such as against creditors of the
Company and third parties, except (a) for the liens permitted by Section 6.02,
(b) for liens for the payment of state or local taxes that are given priority by
operation of law, (c) as enforcement may be adversely affected by the Atomic
Energy Act and regulations thereunder, (d) as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws of
general applicability relating to or affecting creditors rights, (e) as
enforcement may be affected by general principles of equity, and (f) for cash
(other than identifiable cash proceeds of Collateral) not in the possession of
the Collateral Agent or the Depositary.
SECTION 3.10. REGULATION U.
The Company is not engaged principally, or as one of its activities, in
the business of extending, or arranging for the extension of, credit for the
purpose of purchasing or carrying any margin stock, within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System, and no
part of the proceeds of any Revolving Credit Loan, A Note, Senior Secured Note
or Further Permitted Obligation will be used to purchase or carry any margin
stock within the meaning of said regulation or to extend credit to others for
such purpose.
SECTION 3.11. REQUIREMENTS OF LAW; TAXES.
The Company: (a) is in compliance in all material respects with all
applicable requirements of law; (b) has filed all Federal, state and local tax
returns and reports required to be filed by the Company; and (c) has paid all
taxes due pursuant to said returns or any written assessment received by the
Company.
SECTION 3.12. FINANCIAL DATA.
The audited balance sheet of the Company as at December 31, 2002, and
the related audited statements of income and retained earnings for the fiscal
year then ended, and the unaudited balance sheet of the Company as at March 31,
2003 and the related unaudited statements of income and retained earnings for
the three-month period then ended, copies of each of which have been furnished
to each Bank, fairly present (subject, in the case of such balance sheets and
statements of income and retained earnings for the three month ended March 31,
2003, to year-end adjustments) the financial condition of the Company as at such
dates and the results of its operations and retained earnings for the periods
ended on such dates, all in accordance with generally accepted accounting
principles consistently applied.
SECTION 3.13. ABSENCE OF CHANGE.
Since December 31, 2002, there has been no material adverse change in
the business, financial condition, operations, results of operations or
13
prospects of the Company or in the Company's ability to perform its obligations
under this Agreement or any other Loan Document to which it is or will be a
party.
SECTION 3.14. REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Company in each other Loan
Document to which it is or will be a party are true and correct on and as of the
Effective Date with the same effect as though such representations and
warranties had been made on and as of the Effective Date, except to the extent
that such representations and warranties expressly relate to an earlier date.
SECTION 3.15. ACCURACY OF INFORMATION.
All information furnished by or on behalf of the Company and IP&L to
the Banks, as of the date so delivered and as of the Effective Date, did not and
does not contain any untrue statement of a material fact and does not omit to
state a material fact necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading.
SECTION 3.16. OWNERSHIP AND MANAGEMENT.
All of the capital stock of the Borrower is owned by Broad Street, and
the Borrower is managed by Broad Street pursuant to the Management Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.01. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS AGREEMENT.
This Agreement shall become effective as of the date first above
written upon the satisfaction of all of the following conditions precedent:
(a) This Agreement shall have been duly executed and delivered by the
Company and the Banks;
(b) No Event of Default or event that, but for the lapse of time or
service of notice or both, would constitute an Event of Default under the 2001
Credit Agreement shall have occurred and be continuing;
(c) Bank One shall have received:
(i) a B Note payable to each Bank in the amount of its
Commitment;
(ii) the Security Agreement, duly executed by the Company,
together with such lien searches and Uniform Commercial Code Financing
Statements as the Agent may reasonably require;
14
(iii) the Consent and Agreement, duly executed by IP&L;
(iv) copies (which may be photocopies) of the executed Depositary
Agreement, certified by the Secretary or an Assistant Secretary of the
Company to be true, correct and complete copies thereof;
(v) an Acknowledgement in the form of Exhibit H hereto, duly
executed and delivered by the Depositary, with regard to the
Depositary Agreement (the "DEPOSITARY ACKNOWLEDGEMENT");
(vi) a Third Amendment to the Fuel Lease in the form of Exhibit I
hereto (the "FUEL LEASE AMENDMENT"), duly executed and delivered by
the Company and IP&L.
(vii) certificates of good standing of the Company and IP&L from
the respective Secretaries of State of Delaware and Iowa listing all
charter documents on file and dated as of recent dates;
(viii) a certificate of the Secretary or an Assistant Secretary
of the Company dated the Effective Date certifying:
(1) that attached thereto are true and complete copies of
the By-laws of the Company as in effect on the date of the
meeting of the Board of Directors referred to in the resolutions
specified in clause (2) below, and on the date of such
certification, and of the Articles of Incorporation of the
Company as in effect on such dates;
(2) that attached thereto is a true and complete copy of
resolutions adopted by the Board of Directors of the Company
authorizing the execution and delivery of this Agreement, the
Depositary Agreement, the Security Agreement (and any financing
statements required in connection therewith), the Notes, the Fuel
Lease Amendment, the Depository Acknowledgement and the
designation of the Depositary as depositary and agent in respect
of the A Notes, and that such resolutions are in full force and
effect and have not been rescinded or revoked ; and
(3) the incumbency and specimen signature of each officer of
the Company executing this Agreement, the Depositary Agreement,
the Security Agreement, the Notes, the Fuel Lease Amendment, the
Depository Acknowledgement and any certificates or instruments
furnished pursuant hereto and a certification by another officer
of the Company as to the incumbency and signature of the officer
signing the certificate referred to in Section 4.01(f);
(ix) a certificate of the Secretary or an Assistant Secretary of
IP&L dated the Effective Date and certifying:
15
(1) that attached thereto are full, true and correct copies
of the By-laws of IP&L as in effect on the date of the meeting of
the Board of Directors referred to in the resolutions specified
in clause (2) below, and on the date of such certification, and
of the Articles of Incorporation of IP&L as in effect on such
dates;
(2) that attached thereto is a true and complete copy of
resolutions adopted by the Board of Directors of IP&L authorizing
the execution and delivery of the Consent and Agreement and the
Fuel Lease Amendment, and that such resolutions are in full force
and effect and have not been rescinded or revoked; and
(3) the incumbency and specimen signature of each officer of
IP&L executing the Consent and Agreement, the Fuel Lease
Amendment and any certificates or instruments furnished pursuant
hereto or thereto and certification by another officer of IP&L as
to the incumbency and signature of the officer signing the
certificate referred to in Section 4.01(f);
(x) the favorable written opinion of Loeb & Loeb, counsel for the
Company, dated the Effective Date, addressed to the Agent, the
Collateral Agent and the Banks and satisfactory in form and substance
to the Agent and its counsel;
(xi) the favorable written opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to
IP&L, dated the Effective Date, addressed to the Agent, the Collateral
Agent and the Banks and satisfactory in form and substance to the
Agent and its counsel;
(xii) such other documents as the Agent or its counsel may
reasonably request;
(d) the Depositary Agreement shall be in full force and effect without
amendment or modification thereof, except as approved in writing by the Agent;
(e) the Fuel Lease shall be in full force and effect without amendment
or modification thereof except as approved in writing by the Agent; and
(f) the Agent shall have received a certificate, dated the Effective
Date and signed by an officer of the Company, such certificate to be
substantially in the form of Exhibit A hereto, and the Company shall cause to be
delivered to the Agent a certificate, dated the Effective Date and signed by a
responsible officer of IP&L, such certificate to be substantially in the form of
Exhibit B hereto. Each request (other than the first request) by the Company for
an Extension of Credit hereunder shall constitute a reaffirmation by the Company
as of the date of such borrowing that such certificate of an officer of the
Company is true and correct on and as of such date and confirmation that the
Company does not have any knowledge of any incorrect statement on and as of such
date in such certificate of an officer of IP&L furnished pursuant to this
Section 4.01(f).
16
SECTION 4.02. CONDITIONS PRECEDENT TO EACH EXTENSION OF CREDIT.
No Bank shall be required to make or permit any Extension of Credit
hereunder (including, without limitation, the initial Loan) unless:
(a) the representations and warranties set forth in Article III hereof
and of IP&L set forth in the Consent and Agreement shall be true and correct on
and as of such time with the same effect as though such representations and
warranties had been made on and as of such time, except to the extent that such
representations and warranties expressly relate to an earlier date;
(b) the Company shall be in compliance with all the terms and
provisions set forth herein on its part to be observed or performed, and no
Default or Event of Default shall have occurred and be continuing on such date;
(c) if such Extension of Credit involves the issuance of A Notes, no
Special Termination Event shall have occurred and be continuing;
(d) if such Extension of Credit involves the issuance of A Notes, all
laws and regulations applicable thereto shall have been complied with;
(e) the conditions precedent contained in Section 4.01 hereof shall
remain satisfied on and as of the date of, and after giving effect to, such
Extension of Credit; and
(f) all legal matters incident to this Agreement and the transactions
contemplated hereby shall be satisfactory to the Agent and its counsel.
ARTICLE V
AFFIRMATIVE COVENANTS
The Company covenants and agrees with the Agent and the Banks that so
long as this Agreement shall remain in effect or any of the Notes shall be
unpaid, unless the Required Banks shall otherwise consent in writing, it will:
SECTION 5.01. CORPORATE EXISTENCE.
Except as otherwise permitted by Section 6.04 hereof, do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence, rights and franchises and to comply with all laws
applicable to it; at all times maintain, preserve and protect all franchises and
preserve all its property used or useful in the conduct of its business; and
exercise its rights under the Fuel Lease to cause IP&L to perform all of its
obligations as lessee thereunder, in respect of the Nuclear Fuel.
SECTION 5.02. COMPLIANCE WITH DOCUMENTS; OBLIGATIONS AND TAXES.
Comply in all material respects with all of its obligations under the
Loan Documents and pay or discharge or cause to be paid and discharged promptly
17
all taxes, assessments and governmental charges or levies imposed upon it or
upon its income or profits, or upon any of its property, real, personal or
mixed, or upon any part thereof, before the same shall become in default, as
well as all lawful claims for labor, materials and supplies or otherwise that,
if unpaid, might become a lien or charge upon such properties or any part
thereof; provided, however, that the Company shall not be required to pay and
discharge or cause to be paid and discharged any such tax, assessment, charge,
levy or claim so long as the validity thereof shall be contested in good faith
by appropriate proceedings.
SECTION 5.03. FINANCIAL STATEMENTS.
Maintain, or cause to be maintained, for itself a system of accounting
appropriate to its business and sufficient to enable the Company to satisfy the
requirements of this Agreement, and furnish to the Banks:
(a) within 120 days after the end of each fiscal year, a balance sheet
and statement of income and retained earnings of the Company, certified by
Deloitte & Touche LLP or other independent certified public accountants of
recognized standing selected by the Company and acceptable to the Required
Banks, showing the financial condition of the Company at the close of such year
and the results of its operations during such year, accompanied by a certificate
of an authorized officer of the Company to the effect that to the best of his or
her knowledge after reasonable inquiry no Default or Event of Default has
occurred and is continuing, or identifying the Default or Event of Default;
(b) within 30 days after the end of each quarter of each fiscal year,
unaudited financial statements similar to those described in paragraph (a)
above, but certified by an authorized officer of the Company, such unaudited
balance sheets to be as of the end of such quarter and such unaudited statements
of income and retained earnings to be for the period from the beginning of the
calendar year to the end of such quarter, in each case subject to audit and
year-end adjustments, accompanied by a signed certificate of no default in the
form required under paragraph (a) above; and
(c) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the Company as the Agent
or any Bank may reasonably request.
SECTION 5.04. INSPECTION RIGHTS.
At any time and from time to time upon reasonable notice, permit or
arrange for the Agent, the Banks and their respective agents and representatives
to examine and make copies of and abstracts from the records and books of
account of, and the properties of, the Company and to discuss the affairs,
finances and accounts of the Company with the Company and its officers,
directors and accountants.
SECTION 5.05. MAINTENANCE OF PROPERTIES, ETC.
Maintain good and marketable title to, and preserve, maintain, develop,
and operate in substantial conformity with all laws and material contractual
obligations, all of its properties which are used or useful in the conduct of
18
its business in good working order and condition, ordinary wear and tear
excepted, except where the failure to do so would not have a material adverse
effect on the business, financial condition, operations, results of operations
or prospects of the Company, or on the Company's ability to perform its
obligations under this Agreement or any other Loan Document to which it is or
will be a party.
SECTION 5.06. FURTHER ASSURANCES.
At its own cost and expense, execute and deliver to the Agent all such
documents and instruments and do all such other acts and things as may be
reasonably requisite, in the opinion of counsel for the Agent, to enable the
Collateral Agent to exercise and enforce its rights under the Security
Agreement, to realize thereon and to collect and receive all moneys due or to
become due under the Collateral and record and file and re-record and refile all
such documents and instruments at such time or times, in such manner and at such
place or places, all as may be necessary to validate, preserve and protect the
rights of the Collateral Agent, as from time to time specified by counsel for
the Agent. The Company hereby authorizes the Collateral Agent on behalf of the
Secured Parties under the Collateral Agency Agreement to file Uniform Commercial
Code financing statements and continuation statements with respect to the
security interest created under the Security Agreement, and is vested with
authority to sign as an agent coupled with an interest on behalf of the Company
such financing statements or continuation statements as the Collateral Agent
shall deem necessary.
SECTION 5.07. DEFAULT NOTICE; LITIGATION NOTICE.
Promptly upon (and in no event later than five days after) learning
thereof, notify the Agent of (i) the occurrence of any Default or Event of
Default and (ii) any action, suit or proceeding at law or in equity or by or
before any governmental instrumentality or other agency, other than as
contemplated by Section 3.04 hereof, which, if adversely determined, would
materially impair the right of the Company to carry out its obligations under
the Fuel Lease, or would materially affect its business, operations, properties,
assets or condition, financial or otherwise.
SECTION 5.08. LOAN DOCUMENTS AND IP&L.
Promptly following a request from the Required Banks to do so and at
the Company's own expense, take all such lawful action as the Required Banks may
request to enforce or secure the performance by IP&L of its obligations under
the Fuel Lease and other Loan Documents in accordance with the respective terms
thereof, and exercise any right, power, remedy or privilege available to the
Company thereunder or in connection therewith to the extent and in the manner
directed by the Required Banks, including, without limitation, the institution
of legal or administrative actions or proceedings to compel or enforce
performance by IP&L of its obligations thereunder or otherwise, or to recover
any payment due the Company thereunder or otherwise, and the Company hereby
appoints the Agent the Company's attorney-in-fact for the purpose of, upon the
occurrence and during the continuance of a Event of Default, taking all such
action and exercising any such right, power, remedy or privilege, in the name of
the Company or otherwise, which appointment is coupled with an interest and is
irrevocable.
19
ARTICLE VI
NEGATIVE COVENANTS
The Company covenants and agrees with the Banks that so long as this
Agreement shall remain in effect or any of the Notes shall be unpaid, unless the
Required Banks shall otherwise consent in writing, it will not, directly or
indirectly:
SECTION 6.01. INDEBTEDNESS.
Incur, create, assume or permit to exist, directly or indirectly, any
indebtedness or liability for borrowed money, or any indebtedness evidenced by
notes, bonds, debentures or similar obligations (including, but not limited to,
conditional sales or similar title retention agreements and guaranties), except
(a) the Notes, (b) the Senior Secured Notes, (c) any Further Permitted
Obligations consented to by the Required Banks in their sole and absolute
discretion, (d) indebtedness that may exist under the agreements referred to in
Section 3.05 hereof, and (e) unsecured indebtedness owing to IP&L, which by its
terms precludes repayment if a Default or Event of Default shall have occurred
and be continuing.
SECTION 6.02. LIENS.
Incur, create, assume or permit to exist any mortgage, pledge, lien,
charge or other encumbrance of any nature whatsoever on any of its assets now or
hereafter owned except:
(a) liens securing the payment of obligations, or in connection with
contests, permitted under Section 5.02 hereof;
(b) deposits under workmen's compensation, unemployment insurance and
social security laws;
(c) liens imposed by law, such as carriers', warehousemen's or
mechanics' liens, incurred in good faith in the ordinary course of business;
(d) liens arising under the Fuel Lease or the Security Agreement; and
(e) the rights of owners of the Related Nuclear Material (as defined in
the Fuel Lease) under the ▇▇▇▇▇ ▇▇▇▇▇▇ Energy Center Ownership Participation
Agreement executed April 30, 1970 but sometime referred to as being dated "June
1, 1970", as amended, the ▇▇▇▇▇ ▇▇▇▇▇▇ Energy Center Operating Agreement dated
June 1, 1970, as amended, and the ▇▇▇▇▇ ▇▇▇▇▇▇ Energy Center Agreement for
Transmission, Transformation, Switching and Related Facilities dated June 1,
1970, as amended, among IP&L, Central Iowa Power Cooperative and Corn Belt Power
Cooperative.
SECTION 6.03. ACTIVITIES.
Engage in any business or activity other than the business of owning
Nuclear Fuel and leasing the same to IP&L pursuant to the Fuel Lease or any
successor or assign of IP&L under the Fuel Lease, and making the borrowings
20
under the Notes, the Senior Secured Notes and the Further Permitted Obligations,
if any.
SECTION 6.04. SALES, ETC.
(a) Sell, lease, transfer or otherwise dispose of all or a substantial
portion of its property or assets to any person except pursuant to the Fuel
Lease, or
(b) consolidate with or merge into any other corporation, or permit
another corporation to merge into it, or acquire all or a substantial portion of
the properties or assets of any other person.
SECTION 6.05. AMENDMENTS, ETC.
Amend, revise, alter, modify or change, or consent to an amendment,
revision, alteration, modification or change in, or grant any waiver under, the
provisions of the Loan Documents or its Certificate of Incorporation or By-Laws.
SECTION 6.06. INVESTMENTS.
(a) Make or permit to exist any loans or advances or commitments
thereto to any person,
(b) purchase any debt securities, evidences of indebtedness or
obligations of any person other than direct obligations of the United States
Government, certificates of deposit of any state or national bank having capital
and surplus of at least $100,000,000 and commercial paper rated at least prime
by ▇▇▇▇▇'▇ Investors Service (or any successor thereto) or A-1 by Standard &
Poor's Corporation (or any successor thereto), or
(c) purchase any stock or other equity securities of any person.
SECTION 6.07. DIVIDENDS; ISSUANCE OF STOCK.
Declare or pay any dividends on, or apply any of its property or assets
to the purchase, redemption, or other retirement of, or set apart any sum for
the payment of any dividends on, or for the purchase, redemption or other
retirement of, or make any other distribution, by reduction of capital or
otherwise, in respect of, any shares of any class of capital stock of the
Company; or permit any capital stock of the Company to be held of record or
beneficially by any person other than Broad Street or IP&L or an Affiliate of
IP&L.
SECTION 6.08. NO OTHER ACCOUNTS.
Except for the Operating Account, the Note Redemption Account and an
unrestricted demand deposit account maintained with the Collateral Agent, open
or maintain a bank account with any Person. In addition, the Company will not,
and will not permit any Person to, issue A Notes after the Operating Account or
the Note Redemption Account or any funds on deposit in, or otherwise to the
credit of, the Operating Account or the Note Redemption Account are subject to
any writ, judgment, warrant of attachment, execution or other similar process.
21
SECTION 6.09. OFFERING MATERIALS.
Issue or sell any A Notes except by means of an offering memorandum
satisfactory to the Agent in its reasonable discretion.
ARTICLE VII
DEFAULTS
SECTION 7.01. DEFAULTS.
In case of the happening of any of the following Events of Default:
(a) any representation or warranty made by the Company or IP&L in
connection with the Loan Documents shall be false or misleading in any material
respect as of the date on which made;
(b) default in the payment when due of any principal of the Notes or
within three Business Days of the date when due of any interest on the Notes or
fees payable hereunder, in each case whether at the due date thereof or at a
date fixed for prepayment thereof or by acceleration thereof or otherwise; or
any default in the amounts payable under Section 1.08, 1.11 or 2.05 hereof
(after demand for payment shall have been made) which default continues
unremedied for 15 days after written notice thereof to the Company by the Agent
or any Bank;
(c) (i) The Company shall fail to pay any of its Debt (including any
interest or premium thereon but excluding Debt hereunder and under the Notes)
when due, whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise, or (ii) IP&L shall fail to pay any of its Debt (including
any interest or premium thereon) aggregating $25,000,000 or more when due,
whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise, and, in each case, such failure shall continue after the applicable
grace period, if any, specified in any agreement or instrument relating to such
Debt; or any other default under any agreement or instrument relating to any
such Debt, or any other event, shall occur and shall continue after the
applicable grace period, if any, specified in such agreement or instrument, if
the effect of such default or event is to accelerate, or to permit the
acceleration of, the maturity of such Debt; or any such Debt shall be declared
to be due and payable, or required to be prepaid (other than by a regularly
scheduled required prepayment) prior to the stated maturity thereof as a result
of a default or other similar adverse event; or
(d) default in the due observance of any covenant, condition or
agreement on the part of the Company contained in Section 5.01, Section 5.07 or
Article VI hereof or on the part of IP&L contained in Section 6(b) or 6(c) of
the Consent and Agreement.
(e) default in the due observance for performance of any other
covenant, condition or agreement to be observed or performed pursuant to the
terms hereof or of any other Loan Document and such default shall continue
unremedied for 30 days after written notice thereof to the Company and IP&L by
the Agent or any Bank;
22
(f) the Company or IP&L shall (i) apply for or consent to the
appointment of a receiver, trustee or liquidator of itself or any substantial
part of its property, (ii) admit in writing its inability to pay its debts as
they mature, (iii) make a general assignment for the benefit of creditors, (iv)
have an order for relief entered with respect to it or (v) file a voluntary
petition in bankruptcy, or a petition or an answer seeking reorganization or an
arrangement with creditors or to take advantage of any bankruptcy,
reorganization, insolvency, readjustment of debt, dissolution or liquidation law
or statute, or an answer admitting the material allegations of a petition filed
against it in any proceeding under any such law or if corporate action shall be
taken by the Company or IP&L for the purposes of effecting any of the foregoing;
(g) an order, judgment or decree shall be entered, without the
application, approval or consent of the Company or IP&L as the case may be, by
any court of competent jurisdiction, approving a petition seeking reorganization
of the Company or IP&L, or of all or a substantial part of the assets of the
Company or IP&L or appointing a receiver, trustee or liquidator of the Company
or IP&L, and such order, judgment or decree shall continue unstayed and in
effect for any period of 90 days;
(h) IP&L shall default (after giving effect to any applicable grace
period) in the payment of any amount due under Fuel Lease that has been assigned
to the Agent for the ratable benefit of the Banks under the Security Agreement;
(i) IP&L shall default in the performance of its obligations under
Section 16 of the Fuel Lease;
(j) IP&L shall be in default in the payment of any amount due under the
Fuel Lease that has not been assigned to the Agent for the ratable benefit of
the Banks or in any other material respect under the Fuel Lease, and such
default shall continue for 30 days after written notice thereof to the Company
from the Agent or any Bank;
(k) An "Event of Default" (as defined in the Fuel Lease) shall occur
and be continuing; or the Company shall fail to repay the Notes in full (or
deposit with the Agent or its agent funds sufficient for payment, in the case of
A Notes), within the period required by Section 19(b) of the Fuel Lease for
payments by IP&L after the termination of the Fuel Lease for any reason;
(l) final judgments for the payment of money aggregating in excess of
$100,000 shall be entered against the Company and shall remain unpaid,
unvacated, unbonded or unstayed for a period of 60 consecutive days or an
injunction shall be issued against the Company and/or IP&L materially impairing
the use of the Nuclear Fuel as contemplated by the Fuel Lease and shall not be
vacated for a period of 12 consecutive calendar months;
(m) any court, government or governmental agency shall condemn, seize
or otherwise appropriate, or take custody or control of all or any substantial
portion of the property of either the Company or IP&L;
(n) the Company shall establish or participate in a Plan;
23
(o) IP&L shall receive notice from the Pension Benefit Guaranty
Corporation indicating that it has made a determination that it will invoke its
right under Section 4042(a) of ERISA to terminate any Plan maintained by IP&L
for its employees and covered by Title IV of ERISA and such determination is not
being contested in good faith and by proper proceedings by IP&L within sixty
(60) days following the receipt of such notice, or the Pension Benefit Guaranty
Corporation institutes proper proceedings to terminate, or in connection with
such proceedings to terminate has a trustee appointed to administer any Plan
maintained by IP&L, and such proceedings to terminate are not stayed or
dismissed within sixty (60) days following their institution, or IP&L becomes
subject to employer liability in excess of $50,000,000 under Title IV of ERISA
in connection with a Plan maintained by IP&L;
(p) any of the Loan Documents shall at any time after their respective
execution and delivery and for any reason, cease to be in full force and effect
or shall be declared to be null and void, or the validity or enforceability
thereof shall be contested by the Company, IP&L or any other party thereto
(other than the Agent or any Bank), or the Company, IP&L or any other party
thereto (other than the Agent or any Bank) shall deny that it has any or further
liability or obligation under any of the Loan Documents to which it is a party;
or the Security Agreement shall at any time fail to create a valid and perfected
first priority lien on and security interest in the Collateral or any material
portion thereof; or a "Default" (as defined in the Security Agreement) shall
occur and be continuing;
THEN, and in every such event and at any time thereafter during the continuance
of such event, the Required Banks may, by written notice to the Company, at the
same or different times, take one or more of the following actions: (i) cease to
consent to the issuance of A Notes, or (ii) terminate the Commitments of the
Banks to make Revolving Credit Loans or (iii) declare the B Notes then
outstanding hereunder to be forthwith due and payable, whereupon the B Notes
shall become forthwith due and payable, both as to principal and interest,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived, anything contained herein or in the B Notes
to the contrary notwithstanding; provided, however, that if an Event of Default
specified in subsections (f) or (g) above occurs, then in every such event and
at any time thereafter during the continuance of such Event of Default: (x) the
Required Banks may, by written notice to the Company, cease to consent to the
issuance of A Notes, (y) the several Commitments to make Revolving Credit Loans
shall automatically terminate, and (z) the Revolving Credit Loans then
outstanding hereunder shall automatically become forthwith due and payable, both
as to principal and interest, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived, anything contained
herein or in the B Notes to the contrary notwithstanding.
24
ARTICLE VIII
DEFINITIONS.
SECTION 8.01. DEFINITIONS.
For purposes hereof, the terms:
"A NOTE" means, in the case of A Notes issued prior to the
Effective Date, any of the "A Notes" referred to in the 2001 Credit
Agreement; and, in the case of A Notes issued on or after the Effective
Date, a commercial paper promissory note in the form of Exhibit C
hereto, with appropriate insertions.
"ADVANCE" means a single borrowing hereunder consisting of the
aggregate amount of the several Loans made by the Banks to the Company
in the course of such borrowing.
"AFFECTED BANK" shall have the meaning given it in Section
1.08(d) or Section 2.05 hereof, as either such Section may be
applicable in the circumstances.
"AFFILIATE" means, with respect to any Person, any other
Person directly or indirectly controlling (including but not limited to
all directors and officers of such Person), controlled by, or under
direct or indirect common control with such Person. A Person shall be
deemed to control another entity if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the
management and policies of such entity, whether through the ownership
of voting securities, by contract, or otherwise.
"AGENT" means Bank One in its capacity as agent for the Banks
pursuant to Article X, and not in its individual capacity as a Bank,
and any successor Agent appointed pursuant to Article X.
"AGGREGATE COMMITMENT" means the aggregate of the Commitments
of all the Banks, as reduced from time to time pursuant to the terms of
Section 1.07 and Section 2.04 hereof.
"AGREEMENT" means this Fourth Amended and Restated Credit
Agreement, as it may be amended or modified and in effect from time to
time.
"ALTERNATE BASE RATE" shall mean a fluctuating rate of
interest equal at all times to the higher of (i) the Federal Funds
Effective Rate plus 0.5% or (ii) the corporate base rate of interest
announced by Bank One from time to time at its main office in Chicago
Illinois. Each change in the Alternate Base Rate shall be effective as
of the opening of business on the date of any change in the Federal
Funds Effective Rate or such corporate base rate, as applicable.
"B NOTE" means, in the case of the B Note issued to Bank One,
the "B Note" referred to in the 2001 Credit Agreement; and, in the case
of any B Note issued on or after the Effective Date to any other Bank,
a promissory note, in substantially the form of Exhibit D hereto, duly
25
executed by the Company and payable to the order of a Bank in the
amount of its Commitment: in either case including any amendment,
modification, renewal or replacement of such promissory note.
"BANK ONE" means Bank One, N.A. (main office: Chicago,
Illinois) in its individual capacity, and its successors.
"BANKS" means the lending institutions listed on the signature
pages of this Agreement and their respective successors and assigns.
"BROAD STREET" means Broad Street Contract Services, Inc., a
Delaware corporation.
"BUSINESS DAY" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions are authorized by law to
close in Chicago, Illinois or New York, New York.
"CAPITALIZED LEASE OBLIGATIONS" means obligations to pay rent
or other amounts under any lease of (or other arrangement conveying the
right to use) real and/or personal property which obligation is
required to be classified and accounted for as a capital lease on a
balance sheet prepared in accordance with generally accepted accounting
principles, and for purposes hereof the amount of such obligations
shall be the capitalized amount determined in accordance with such
principles.
"COLLATERAL" shall have the meaning given it in the Security
Agreement.
"COLLATERAL AGENCY AGREEMENT" means the Collateral Agency and
Intercreditor Agreement, dated as of July 29, 2003, among the Company,
the Note Purchaser, the Agent for itself and on behalf of the Lenders
and Bank One, as Collateral Agent thereunder.
"COLLATERAL AGENT" shall have the meaning given it in the
Collateral Agency Agreement.
"NOTE REDEMPTION ACCOUNT" shall have the meaning given it in
Section 2.03 hereof.
"COMMITMENT" means, for each Bank, the obligation of such Bank
to make Loans not exceeding the amount set forth opposite its signature
below, as such amount may be modified from time to time pursuant to the
terms hereof.
"CONSENT AND AGREEMENT" shall mean that certain Third Amended
and Restated Consent and Agreement in the form of Exhibit E hereto, as
it may be amended from time to time.
"CONSOLIDATED CAPITAL" means, with respect to any Person, at
any date of determination, the sum of (i) Consolidated Debt of such
Person, (ii) consolidated equity of the common stockholders of such
Person and its Consolidated Subsidiaries, (iii) consolidated equity of
26
the preference stockholders of such Person and its Consolidated
Subsidiaries and (iv) consolidated equity of the preferred stockholders
of such Person and its Consolidated Subsidiaries, in each case
determined at such date in accordance with generally accepted
accounting principles.
"CONSOLIDATED DEBT" means, with respect to any Person, at any
date of determination, the aggregate Debt of such Person and its
Consolidated Subsidiaries determined on a consolidated basis in
accordance with generally accepted accounting principles.
"CONSOLIDATED SUBSIDIARY" means, with respect to any Person,
any Subsidiary of such Person whose accounts are or are required to be
consolidated with the accounts of such Person in accordance with
generally accepted accounting principles.
"DEALER AGREEMENT" shall have the meaning given it in Section
3.05 hereof.
"DEBT" means, for any Person, any and all indebtedness,
liabilities and other monetary obligations of such Person (i) for
borrowed money or evidenced by bonds, debentures, notes or other
similar instruments, (ii) to pay the deferred purchase price of
property or services (except trade accounts payable arising and repaid
in the ordinary course of business), (iii) Capitalized Lease
Obligations, (iv) under reimbursement or similar agreements with
respect to letters of credit (other than trade letters of credit)
issued to support indebtedness or obligations of such Person or of
others of the kinds referred to in clauses (i) through (iii) above and
clause (v) below, (v) reasonably quantifiable obligations under direct
guaranties or indemnities, or under support agreements, in respect of,
and reasonably quantifiable obligations (contingent or otherwise) to
purchase or otherwise acquire, or otherwise to assure a creditor
against loss in respect of, or to assure an obligee against failure to
make payment in respect of, indebtedness or obligations of others of
the kinds referred to in clauses (i) through (iv), above, and (vi) in
respect of unfunded vested benefits under any Single Employer Plan or
Multiple Employer Plan. In determining Debt for any Person, there shall
be included accrued interest on the principal amount thereof to the
extent such interest has accrued for more than six months.
"DEFAULT" shall mean any event or condition that with the
giving of notice or lapse of time, or both, would constitute an Event
of Default.
"DEPOSITARY" shall have the meaning given it in Section 2.01
hereof.
"DEPOSITARY AGREEMENT" shall mean that certain Issuing and
Paying Agency Agreement, dated September 16, 1996, between the Company
and ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank (formerly The Chase Manhattan Bank)
substantially in the form of Exhibit F hereto, as it may be further
amended from time to time.
"DEPOSITARY ACKNOWLEDGMENT" shall have the meaning given it in
Section 4.01 hereof.
27
"EFFECTIVE DATE" shall mean the date notified by Bank One to
the Company that all of the conditions specified in Section 4.01 have
been satisfied.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"ERISA AFFILIATE" means, with respect to any Person, any trade
or business (whether or not incorporated) that is a member of a group
of which such Person is a member and that is under common control
within the meaning of the regulations under Section 414(b) or (c) of
the Internal Revenue Code of 1986, as amended from time to time.
"EVENT OF DEFAULT" shall mean an event described in Article
VII hereof.
"EXISTING B NOTE" shall mean the note issued pursuant to
Section 2.01 of the 1987 Credit Agreement.
"EXISTING LOANS" shall have the meaning given it in the
Recitals hereof.
"EXTENSION OF CREDIT" shall mean the issuance of an A Note or
the making of a Revolving Credit Loan.
"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 that is a Business Day, the
average of the quotations at approximately 10:00 a.m. (Chicago time) on
such day on such transactions received by the Agent from three federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"FUEL LEASE" shall mean that certain Fuel Lease by and between
the Company and IP&L dated as of August 21, 1973, as amended, and as it
may be further amended from time to time.
"FUEL LEASE AMENDMENT" shall have the meaning given it in
Section 4.01 hereof.
"FURTHER PERMITTED OBLIGATION" shall have the meaning given it
in the Collateral Agency Agreement.
"GENERATING FACILITY" shall have the meaning given it in the
Fuel Lease.
"IESU" means IP&L.
28
"IP&L" means IP&L Power And Light Company (formerly IES
Utilities Inc., formerly Iowa Electric Power and Light Company), an
Iowa corporation.
"LETTER OF CREDIT" shall mean that certain Letter of Credit
dated August 7, 1981, as amended, issued by Bank One pursuant to the
Original Credit Agreement and subsequently terminated.
"LOAN DOCUMENTS" shall mean this Agreement, the Notes, the
Depositary Agreement, the Fuel Lease, the Consent and Agreement, the
Security Agreement, the Management Agreement, the Dealer Agreement and
the other documents executed pursuant to the foregoing documents.
"LOANS" shall have the meaning given it in Section 1.01
hereof.
"MANAGEMENT AGREEMENT" shall have the meaning given it in
Section 3.05 hereof.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, which is subject to Title IV
of ERISA and that (i) is maintained for employees of the Parent or an
ERISA Affiliate of the Parent and at least one Person other than the
Parent and its ERISA Affiliates or (ii) was so maintained and in
respect of which the Parent or an ERISA Affiliate of the Parent could
have liability under Section 4064 or 4069 of ERISA in the event such
plan has been or were to be terminated.
"1987 CREDIT AGREEMENT" means that certain Second Amended and
Restated Credit Agreement dated as of September 17, 1987, as amended or
otherwise modified immediately prior to the effectiveness of this
Agreement.
"NOTE PURCHASER" means Allstate Life Insurance Company,
together with its successors and assigns as holders of the Senior
Secured Notes.
"NOTE REDEMPTION ACCOUNT" shall have the meaning given it in
Section 2.03 hereof.
"NOTES" shall mean, collectively, the A Notes and the B
Notes.
"NOTICE OF ASSIGNMENT" shall have the meaning given it in
Section 11.03(b).
"NUCLEAR FUEL" shall have the meaning given it in the Fuel
Lease.
"OBLIGATIONS" shall have the meaning given it in the Security
Agreement.
"OPERATING ACCOUNT" shall have the meaning given it in Section
4.3 of the Security Agreement.
"ORIGINAL CREDIT AGREEMENT" shall have the meaning given it in
the Recitals hereof.
29
"PARENT" means Alliant Energy Corporation, a Wisconsin
corporation.
"PARTICIPANTS" shall have the meaning given it in Section
11.02(a).
"PERSON" shall mean any natural person, corporation, business
trust, association, company, partnership or government or any agency or
political subdivision thereof.
"PLAN" shall mean a defined benefit pension plan under ERISA
for the Unfunded Liabilities of which, upon termination, the Company
could be held liable by the Pension Benefit Guaranty Corporation.
"PURCHASERS" shall have the meaning given it in Section
11.03(a).
"RELATED NUCLEAR MATERIAL" shall have the meaning given it in
the Fuel Lease.
"REQUIRED BANKS" means Banks in the aggregate having at least
66-2/3% of the Aggregate Commitment or, if the Aggregate Commitment has
been terminated, Banks in the aggregate holding at least 66-2/3% of the
aggregate unpaid principal amount of the outstanding Revolving Credit
Loans.
"REVOLVING CREDIT LOANS" shall have the meaning given it in
Section 1.01 hereof.
"SECURED PARTIES" shall have the meaning given it in the
Collateral Agency Agreement.
"SECURITY AGREEMENT" shall mean that certain Third Amended and
Restated Security Agreement in the form of Exhibit G hereto, as it may
be further amended from time to time.
"SENIOR SECURED NOTES" shall mean the Company's 4.42% Senior
Secured Notes due May 15, 2008.
"SINGLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, which is subject to Title IV
of ERISA and which (i) is maintained for employees of the Parent or an
ERISA Affiliate of the Parent and no Person other than the Parent and
its ERISA Affiliates, or (ii) was so maintained and in respect of which
the Parent or an ERISA Affiliate of the Parent could have liability
under Section 4069 of ERISA in the event such plan has been or were to
be terminated.
"SPECIAL TERMINATION EVENT" shall mean each of the events set
forth in subsections (a) through (d) of Section 2.05 hereof.
"SUBSIDIARY" means, with respect to any Person, any
corporation or unincorporated entity of which more than 50% of the
outstanding capital stock (or comparable interest) having ordinary
voting power (irrespective of whether at the time capital stock (or
comparable interest) of any other class or classes of such corporation
or entity shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by said Person
(whether directly or through one or more other Subsidiaries). In the
30
case of an unincorporated entity, a Person shall be deemed to have more
than 50% of interests having ordinary voting power only if such
Person's vote in respect of such interests comprises more than 50% of
the total voting power of all such interests in the unincorporated
entity.
"2001 CREDIT AGREEMENT" means that certain Third Amended and
Restated Credit Agreement dated as of August 3, 2001, between the
Company, the lenders parties thereto and Bank One, as Agent thereunder,
as amended by four Amendments thereto dated as of August 2, 2002,
October 31, 2002, January 31, 2003 and April 30, 2003, respectively.
"TERMINATION DATE" shall have the meaning given it in Section
2.04 hereof.
"TRANSFEREE" shall have the meaning given it in Section 11.04.
"UNFUNDED LIABILITIES" shall mean with regard to any Plan, the
excess of the current value of the Plan's benefits guaranteed under
ERISA over the current value of the Plan's assets allocable to such
benefits.
Each accounting term not defined herein shall have the meaning
given to it under generally accepted accounting principles applied on a
consistent basis.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES.
All notices and other communications provided for hereunder and under
the other Loan Documents shall be in writing (including telecopier) and mailed,
telecopied or delivered (via overnight courier or otherwise) and addressed as
set forth on Schedule I hereto, or, as to any Bank, as set forth on its
signature page hereto or in the Notice of assignment pursuant to which it became
a Bank, or, as to each party, at such other address as shall be designated by
such party in a written notice to the other parties. All such notices and
communications shall, when mailed, telecopied or delivered, be effective five
days after being deposited in the mails, or when telecopied, or when delivered,
except that notices and communications to the Agent pursuant to Article I or II
shall not be effective until received by the Agent. All notices sent to the
Company, the Agent or any Bank shall also be sent concurrently to IP&L.
SECTION 9.02. SURVIVAL OF AGREEMENT.
All covenants, agreements, representations and warranties made herein
and in the certificates delivered pursuant hereto shall survive (a) the making
by the Banks of the Revolving Credit Loans and (b) the execution and delivery of
the Notes, and shall continue in full force and effect so long as any Note is
outstanding and unpaid. Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
assigns of such party; and all covenants, promises and agreements by or on
31
behalf of the Company that are contained in this Agreement shall inure to the
benefit of the successors and assigns of the Banks.
SECTION 9.03. EXPENSES OF THE AGENT AND THE BANKS.
The Company will pay all reasonable out-of-pocket expenses incurred by
the Agent (including the reasonable fees and out-of-pocket expenses of counsel
to the Agent) in connection with the preparation of any amendment to this
Agreement and the other Loan Documents (whether or not the transaction thereby
contemplated shall be consummated), and with the making of Loans hereunder, the
administration of this Agreement and the other Loan Documents and the
enforcement and protection of the rights of the Agent and the Banks in
connection with this Agreement and the Loan Documents. In addition, the Company
shall pay any and all stamp, transfer and other taxes payable or determined to
be payable in connection with the execution and delivery of this Agreement and
the other Loan Documents, the issuance of any A Note or the B Notes or the
making of any Revolving Credit Loans, and agrees to save and hold the Agent and
the Banks harmless from and against any and all liabilities with respect to or
resulting from any delay by the Company in paying or omitting to pay such taxes.
Further, the Company shall pay, and shall protect, indemnify and save harmless
the Agent and the Banks and their respective officers, directors, shareholders,
employees, agents and servants from and against, any and all losses,
liabilities, actions, suits, judgments, demands, damages, costs or expenses
(including, without limitation, reasonable attorneys fees and expenses, which
attorneys may include employees of the Agent or any Bank) of any nature arising
from or relating to the offering, issuance, sale or delivery of A Notes.
SECTION 9.04. APPLICABLE LAW.
This Agreement and the Notes shall be construed in accordance with and
governed by the laws of the State of New York.
SECTION 9.05. MODIFICATION OF AGREEMENT.
No modification or waiver of any provision of this Agreement or the
Loan Documents or consent to any departure by the Company therefrom, shall in
any event be effective unless the same shall be in writing executed by the
Required Banks, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice to or demand on
the Company in any case shall entitle the Company to any other or further notice
or demand in the same, similar or other circumstances. Notwithstanding anything
to the contrary in this Section 9.05, no modification or waiver of any provision
of this Agreement or the Loan Documents or consent to any departure by the
Company therefrom shall, without the consent of each Bank affected thereby:
(i) extend the maturity of any Loan or B Note or reduce the
principal amount thereof (other than pursuant to Section 1.07), or
reduce the rate or extend the time of payment of interest or fees
thereon;
(ii) reduce the percentage specified in the definition of
Required Banks;
32
(iii) extend the Termination Date, increase the amount of the
Commitment of any Bank hereunder or permit the Company to assign its
rights under this Agreement;
(iv) amend this Section 9.05; or
(v) release all or substantially all of the Collateral.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent. The Agent may waive payment
of the fee required under Section 11.03(b) without obtaining the consent of any
other party to this Agreement.
SECTION 9.06. WAIVER OF RIGHTS.
Neither any failure nor any delay on the part of the Agent or the Banks
in exercising any right, power or privilege hereunder or under the Loan
Documents shall operate as a waiver thereof, nor shall a single or partial
exercise thereof preclude any other or further exercise of any other right,
power, or privilege.
SECTION 9.07. EXTENSION OF MATURITY.
Should the principal of or interest on any Note, or any mandatory
prepayment of the principal thereof, become due and payable on other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day and, in the case of principal, interest shall be payable thereon at
the rate per annum herein specified during such extension.
SECTION 9.08. RECOURSE LIMITED.
The obligations of the Company hereunder and under the Loan Documents
are solely corporate in nature, and no recourse for the payment of the A Notes,
for the payment of the principal of or interest on the B Notes or for the
payment of any fee or other obligation or any claim arising out of or relating
to this Agreement, the Depositary Agreement, the Security Agreement or any other
Loan Document shall be had against any incorporator, stockholder, officer,
director, employee, agent or affiliate of the Company (other than IP&L in the
event IP&L were to become such an affiliate) or of Broad Street or against Lord
Securities or any incorporator, stockholder, officer, director, employee, agent
or affiliate thereof. The representations and warranties made in this Agreement
are made solely on behalf of the Company. The provisions of this Section 9.08
shall survive the termination of this Agreement. This acknowledgement shall be
binding on the successors and assigns of the Banks.
SECTION 9.09. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall constitute an original but that, when taken together, shall
constitute but one instrument, and shall become effective when copies hereof
that, when taken together, bear the signatures of each of the parties hereto
shall be delivered to the Agent.
33
SECTION 9.10. SEVERABILITY.
In case any one or more of the provisions contained in any Loan
Document should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby.
SECTION 9.11. BANKRUPTCY PETITION AGAINST THE COMPANY.
The Agent and the Banks hereby agree that prior to the date that is 91
days after the 16th day following the maturity of the latest to mature of the A
Notes (or, if such 16th day is not a Business Day, the next Business Day), they
will not file, or join in the filing of, a petition to commence against the
Company under the Federal Bankruptcy Code (11 U.S.C. Sections 101, et seq.) or
any similar statute enacted in its place or otherwise commence, an involuntary
case seeking to have an order for relief entered with respect to the Company, or
seeking dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors. Nothing in this Section 9.11
shall preclude, or be deemed to estop, the Agent or any Bank (a) from taking any
action prior to the expiration of said 91-day period in (i) any case or
proceeding voluntarily filed or commenced by the Company or (ii) any involuntary
insolvency proceeding filed or commenced by a person other than the Agent or any
Bank or a person or persons claiming through the Agent or any Bank or (b) from
commencing any legal action against the Company or any of its properties that is
not an involuntary insolvency proceeding. In the event that the Agent or any
Bank takes any action in violation of this Section 9.11, the Company agrees, for
the benefit of the holders of the A Notes, that it shall file an answer with the
bankruptcy court or otherwise properly contest the filing of such petition or
the commencement of such action and raise the defense that the Agent or such
Bank has agreed in writing not to take such action and should be estopped and
precluded therefrom.
SECTION 9.12. OFFSET.
In addition to and not in limitation of all rights of offset that the
Banks may have under applicable law, state or federal, upon the occurrence of
any Event of Default, each Bank may, with the consent of the Required Banks,
appropriate and apply to the payment of the B Notes and to the payment of any
other amount payable by the Company to the Banks hereunder, any and all
balances, credits, deposits, accounts or moneys of the Company then or
thereafter with the Agent or any Bank.
SECTION 9.13. RATABLE PAYMENTS.
If any Bank, whether by setoff or otherwise, has payment made to it
upon its Loans (other than payments received pursuant to Section 1.08(d), 1.11
or 2.05) in a greater proportion than that received by any other Bank, such Bank
agrees, promptly upon demand, to purchase a portion of the Loans held by the
other Banks so that after such purchase each Bank will hold its ratable
proportion of Loans. If any Bank, whether in connection with setoff or amounts
that might be subject to setoff or otherwise, receives collateral or other
protection for its Obligations or such amounts that may be subject to setoff,
34
such Bank agrees, promptly upon demand, to take such action necessary such that
all Banks share in the benefits of such collateral ratably in proportion to
their Loans. In case any such payment is disturbed by legal process, or
otherwise, appropriate further adjustments shall be made.
SECTION 9.14. 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 Banks.
SECTION 9.15. HEADINGS.
Section headings in the Loan Documents are for convenience of reference
only and shall not govern the interpretation of any of the provisions thereof.
SECTION 9.16. ENTIRE AGREEMENT.
The Loan Documents embody the entire agreement and understanding
between the Company, the Agent, and the Banks and supersede all prior agreements
and understandings between the Company, the Agent, and the Banks relating to the
subject matter thereof.
SECTION 9.17. OBLIGATIONS OUTSTANDING UNDER THE 2001 CREDIT AGREEMENT.
From and after the date of execution of this Agreement, all unpaid
principal and interest on Loans made to the Company by Bank One under the 2001
Credit Agreement and the B Note delivered thereunder shall continue to be in
full force and effect and shall be deemed to have been made and delivered,
respectively, under this Agreement and the B Notes issued hereunder. All
Obligations outstanding under the 2001 Credit Agreement as of such date of
execution shall, to the extent not paid on such date, be deemed to be
Obligations outstanding hereunder. The Company hereby ratifies and reaffirms all
Obligations arising under the 2001 Credit Agreement.
ARTICLE X
THE AGENT
SECTION 10.01. APPOINTMENT.
(a) Bank One is hereby appointed Agent hereunder and under each other
Loan Document, and each of the Banks irrevocably authorizes the Agent to act as
the agent of such Bank, The Agent agrees to act as such upon the express
conditions contained in this Article X. The Agent shall not have a fiduciary
relationship in respect of any Bank by reason of this Agreement.
(b) Each Bank, hereby approves, ratifies and confirms the appointment
of Bank One as Collateral Agent under the Collateral Agency Agreement and
authorizes and directs Bank One, as Agent, to enter into the Collateral Agency
Agreement on its behalf.
35
SECTION 10.02. POWERS.
The Agent shall have and may exercise such powers under the Loan
Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The
Agent shall have no implied duties to the Banks, or any obligation to the Banks
to take any action thereunder except any action specifically provided by the
Loan Documents to be taken by the Agent.
SECTION 10.03. GENERAL IMMUNITY.
Neither the Agent nor any of its directors, officers, agents or
employees shall be liable to the Company, the Banks or any 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 for its or their own
gross negligence or willful misconduct.
SECTION 10.04. 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 (i) any statement, warranty or representations made in connection with
any Loan Document or any borrowing hereunder; (ii) the performance or observance
of any of the covenants or agreements of any obligor under any Loan Document;
(iii) the satisfaction of any condition specified in Article IV, except receipt
of items required to be delivered to the Agent; or (iv) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith.
SECTION 10.05. ACTION ON INSTRUCTIONS OF BANKS.
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 Banks, and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Banks and on all holders of Notes. The Agent shall be
fully justified in failing or refusing to take any action hereunder and under
any other Loan Document unless it shall first be indemnified to its satisfaction
by the Banks 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.
SECTION 10.06. 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 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 all matters pertaining to the
agency hereby created and its duties hereunder and under any other Loan
Document.
36
SECTION 10.07. RELIANCE ON DOCUMENTS; COUNSEL.
The Agent shall be entitled to rely upon any Note, notice, consent,
certificate, affidavit, letter, facsimile, 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.
SECTION 10.08. AGENT'S REIMBURSEMENT AND INDEMNIFICATION.
The Banks agree to reimburse and indemnify the Agent ratably in
proportion to their respective Commitments (i) for any amounts not reimbursed by
the Company for which the Agent is entitled to reimbursement by the Company
under the Loan Documents, (ii) for any other expenses by the Agent on behalf of
the Banks, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever that 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, or the enforcement of any of
the terms thereof or of any such other documents, provided that no Bank shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Agent. The obligations of the Banks
under this Section 10.08 shall survive payment of the Obligations and
termination of this Agreement.
SECTION 10.09. RIGHTS AS A BANK.
In the event the Agent is a Bank, the Agent shall have the same rights
and powers hereunder and under any other Loan Document as any Bank and may
exercise the same as though it were not the Agent, and the term "Bank" or
"Banks" shall, at any time when the Agent is a Bank, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent 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 Company or any of its
Subsidiaries in which the Company or such Subsidiary is not restricted hereby
from with any other Person. The Agent, in its individual capacity, is not
obligated to remain a Bank.
SECTION 10.10. BANK CREDIT DECISION.
Each Bank acknowledges that it has, independently and without reliance
upon the Agent or any other Bank and based on the financial statements prepared
by the Company 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 Bank also acknowledges that it
will, independently and without reliance upon the Agent or any other Bank 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.
37
SECTION 10.11. SUCCESSOR AGENT.
The Agent may resign at any time by giving written notice thereof to
the Banks and the Company, and the Agent may be removed at any time with or
without cause by written notice received by the Agent from the Required Banks.
Upon any such resignation or removal, the Required Banks shall have the right to
appoint, on behalf of the Company and the Banks (but unless a Default or Event
of Default exists with the consent of the Company, which shall not be
unreasonably withheld), a successor Agent. If no successor Agent shall have been
so appointed by the Required Banks and shall have accepted such appointment
within thirty days after the retiring Agent's giving notice of resignation, then
the retiring Agent may appoint, on behalf of the Company and the Banks (but
unless a Default or Event of Default exists with the consent of the Company,
which shall not be unreasonably withheld), a successor Agent. Such successor
Agent shall be a commercial bank having capital and retained earnings of at
least $50,000,000. 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 retiring or
removed Agent, and the retiring or removed Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents. After any
retiring or removed Agent's resignation or removal hereunder as Agent, the
provisions of this Article X shall continue in effect for its benefit in respect
of any actions taken or omitted to be taken by it while it was acting as the
Agent hereunder and under the other Loan Documents.
ARTICLE XI
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
SECTION 11.01. SUCCESSORS AND ASSIGNS.
The terms and provisions of the Loan Documents shall be binding upon
and inure to the benefit of the Company and the Banks and their respective
successors and assigns, except that (i) the Company shall not have the right to
assign its rights or obligations under the Loan Documents and (ii) any
assignment by any Bank must be made in compliance with Section 11.03.
Notwithstanding clause (ii) of this Section, any Bank may at any time, without
the consent of the Company or the Agent, assign all or any portion of its rights
under this Agreement and its Notes to a Federal Reserve Bank; provided, however,
that no such assignment shall release the transferor Bank from its obligations
hereunder. The Agent may treat the payee of any B Note as the owner thereof for
all purposes hereof unless and until such payee complies with Section 11.03 in
the case of an assignment thereof, or, in the case of any other transfer, a
written notice of the transfer is filed with the Agent. Any assignee or
transferee of a B Note agrees by acceptance thereof 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 holder of any B Note, shall be conclusive and binding on any
subsequent holder, transferee or assignee of such B Note or of any B Note or B
Notes issued in exchange therefor.
38
SECTION 11.02. PARTICIPATIONS.
(a) Permitted Participants; Effect.
Any Bank may, in the ordinary course of its business and in accordance
with applicable law, at any time sell to one or more banks or other entities
("PARTICIPANTS") participating interests in any Loan owing to such Bank, any
Note held by such Bank, any Commitment of such Bank or any other interest of
such Bank under the Loan Documents. In the event of any such sale by a Bank of
participating interests to a Participant, such Bank's obligations under the Loan
Documents shall remain unchanged, such Bank shall remain solely responsible to
the other parties hereto for the performance of such obligations, such Bank
shall remain the holder of any such Note for all purposes under the Loan
Documents, all amounts payable by the Company under this Agreement shall be
determined as if such Bank had not sold such participating interests, and the
Company and the Agent shall continue to deal solely and directly with such Bank
in connection with such Bank's rights and obligations under the Loan Documents.
(b) Voting Rights.
Each Bank 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 Loan or Commitment in which such Participant has an interest that
forgives principal, interest or fees or reduces the interest rate or fees
payable with respect to any such Loan or Commitment, postpones any date fixed
for any regularly-scheduled payment of principal of, or interest or fees on, any
such Loan or Commitment, or releases any substantial portion of Collateral
securing any such Loan.
(c) Benefit of Offset.
The Company agrees that each Participant shall be deemed to have the
right of offset provided in Section 9.12 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 Bank under
the Loan Documents, provided that each Bank shall retain the right of setoff
provided in Section 9.12 with respect to the amount of participating interests
sold to each Participant. The Banks agree to share with each Participant, and
each Participant, by exercising the right of setoff provided in Section 9.12,
agrees to share with each Bank, any amount received pursuant to the exercise of
its right of setoff, such amounts to be shared in accordance with Section 9.13
as if each Participant were a Bank.
SECTION 11.03. ASSIGNMENTS.
(a) Permitted Assignments.
With the consent of the Company (which shall not be unreasonably
withheld and shall not be required if an Event of Default has occurred and is
continuing), any Bank may, in the ordinary course of its business and in
accordance with applicable law, at any time assign to one or more banks or other
entities ("PURCHASERS") all or any part of its rights and obligations under the
39
Loan Documents. Such assignment shall be substantially in the form of Exhibit J
hereto or in such other form as may be agreed to by the Parties thereto.
(b) Effect; Effective Date.
Upon (i) delivery to the Agent of a notice of assignment, substantially
in the form attached as Exhibit A to Exhibit J hereto (a "NOTICE OF
ASSIGNMENT"), (ii) payment of a $2,500 fee to the Agent for processing such
assignment, such assignment shall become effective on the effective date
specified in such Notice of Assignment. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Bank party to this
Agreement and any other Loan Document executed by the Banks and shall have all
the rights and obligations of a Bank under the Loan Documents, to the same
extent as if it were an original party hereto, and no further consent or action
by the Company, the Banks or the Agent shall be required to release the
transferor Bank with respect to the percentage of the Aggregate Commitment and
Loans assigned to such Purchaser. Upon the consummation of any assignment to a
Purchaser pursuant to this Section 11.03(b), the transferor Bank, the Agent and
the Company shall make appropriate arrangements so that replacement B Notes are
issued to such transferor Bank and new B Notes or, as appropriate, replacement B
Notes, are issued to such Purchaser, in each case in principal amounts
reflecting their Commitment, as adjusted pursuant to such assignment.
SECTION 11.04. DISSEMINATION OF INFORMATION.
The Company authorizes each Bank 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 Bank's possession concerning the creditworthiness of the
Company and its Subsidiaries; provided that each Transferee and prospective
Transferee agrees to treat such information as confidential.
SECTION 11.05. TAX TREATMENT.
If any interest in any Loan Document is transferred to any Transferee
that is organized under the laws of any jurisdiction other than the United
States or any State thereof, the transferor Bank shall cause such Transferee,
concurrently with the effectiveness of such transfer, to comply with the
provisions of Section 1.11.
S-1
IN WITNESS WHEREOF, the Company, the Agent, and the Banks have caused
this Agreement to be duly executed by their duly authorized officers, all as of
the day and year first above written.
▇▇▇▇▇▇ FUEL, INC.
By____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
BANK ONE, N.A.
(Main Office: Chicago, Illinois), as Agent
By____________________________________
Name: ▇▇▇▇ ▇. ▇▇▇
Title: Vice President
THE BANKS:
COMMITMENT:
$30,000,000 BANK ONE, N.A.
(Main Office: Chicago, Illinois)
By____________________________________
Name: ▇▇▇▇ ▇. ▇▇▇
Title: Vice President
One Bank One Plaza
Mail Stop 0363
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Utilities Group
SCHEDULE I
PARTY ADDRESS FOR NOTICES
▇▇▇▇▇▇ Fuel, Inc. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇
With a copy to:
Lord Security Corporation
Broad Street Contract Services, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10005-2902
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Vice President
Interstate Power & Light Company ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: [▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice
President, Treasurer and
Corporate Secretary]
Bank One, N.A. One Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Utilities Group
EXHIBIT A
I, __________________________ of ▇▇▇▇▇▇ FUEL, INC., a Delaware
corporation (hereinafter called the "COMPANY"), do hereby certify as follows:
1. The representations and warranties set forth in Article III of the
Fourth Amended and Restated Credit Agreement dated as of July 29, 2003, among
the Company, the Banks from time to time parties thereto and Bank One, N.A., as
Agent (hereinafter called the "CREDIT AGREEMENT") are true and correct on and as
of the date hereof with the same effect as though such representations and
warranties had been made on and as of the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date.
2. The Company is in compliance with all the terms and provisions set
forth in the Credit Agreement on its part to be observed and performed, and no
Default or Event of Default has occurred and is continuing.
3. The proceeds from [the Sale of A Notes] [borrowings of Revolving
Credit Loans] (as defined in the Credit Agreement) to be received by the Company
prior to the first day of the next ensuing February, May, August or November
after the date hereof will be applied to the Acquisition Cost or Capitalized
Cost (as such terms are defined in the Fuel Lease dated as of August 21, 1973,
between the Company and IES Utilities Inc., as amended) or to refund outstanding
A Notes or the B Note issued prior to the date hereof.
IN WITNESS WHEREOF, the undersigned has hereunto signed his name in his
official capacity this ____ day of __________, 2003.
___________________________________
EXHIBIT B
I, __________________________ of INTERSTATE POWER & LIGHT COMPANY
(hereinafter called "IP&L") in connection with the issuance of A Notes by ▇▇▇▇▇▇
Fuel, Inc. or the making of Revolving Credit Loans pursuant to the Fourth
Amended and Restated Credit Agreement, dated as of July 29, 2003, among ▇▇▇▇▇▇
Fuel, Inc., the Banks from time to time parties thereto and Bank One, N.A., as
Agent (hereinafter called the "CREDIT AGREEMENT"), do hereby certify as follows:
1. The representations and warranties of IP&L contained in the Second
Amended and Restated Consent and Agreement dated as of August 3, 2001, executed
by IP&L, pursuant to which IP&L, inter alia, consented to the assignment to the
Bank of certain rights under the Fuel Lease dated as of August 21, 1973, between
▇▇▇▇▇▇ Fuel, Inc. and IP&L, as amended, are true and correct on and as of the
date hereof with the same effect as though such representations and warranties
had been made on and as of this date, except to the extent that such
representations and warranties expressly relate to an earlier date.
2. The aforesaid Fuel Lease with ▇▇▇▇▇▇ Fuel, Inc. is in full force and
effect, and no event which would cause termination thereunder, nor any event
which upon notice or lapse of time or both would constitute a default
thereunder, or result in termination thereof, has occurred and is continuing.
IN WITNESS WHEREOF, the undersigned has hereunto signed his name in his
official capacity this ____ day of __________, 2001.
________________________________
EXHIBIT C
FORM OF COMMERCIAL PAPER NOTE
▇▇▇▇▇▇ FUEL, INC.
New York, New York
___________, [19/20___]
On __________, [19/20__], for value received, ▇▇▇▇▇▇ FUEL, INC. (the
"COMPANY") promises to pay to the order of BEARER the sum of $__________ payable
at The Chase Manhattan Bank, Attention: Commercial Paper Department, ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇-▇▇▇▇.
This Note is issued pursuant to, and the holder hereof is entitled to
the benefits of, certain provisions of a Second Amended and Restated Credit
Agreement, dated as of September 17, 1987 (the "CREDIT AGREEMENT") between the
Company and the Bank, as therein defined, and a Issuing and Paying Agency
Agreement, dated as of September 16, 1996 (the "DEPOSITARY AGREEMENT") between
the Company and The Chase Manhattan Bank
This Note is a corporate obligation of the Company only and no recourse
may be had against its controlling persons, employees, officers, directors,
stockholders or agents.
The Credit Agreement and the Depositary Agreement, copies of which, as
from time to time amended, are on file with the Depositary at its Corporate
Trust Administration, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇ FUEL, INC.
By______________________________
Name:
Title:
Countersigned for Authentication only:
THE CHASE MANHATTAN BANK
By_____________________________________________
Authorized Signature
This Note is not valid unless countersigned by
The Chase Manhattan Bank
EXHIBIT D
PROMISSORY NOTE
$______________ New York, New York
__________, 2003
FOR VALUE RECEIVED, the undersigned ▇▇▇▇▇▇ FUEL, INC. does hereby
promise to pay to the order of ______________________________ ("BANK") on or
before the Termination Date (as defined in the Credit Agreement described below)
at the main office of Bank One, N.A. at ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
as Agent, in lawful money of the United States of America, the principal amount
of [INSERT COMMITMENT AMOUNT IN WORDS] Dollars ($______________) or, if less
than such principal amount, the aggregate principal amount of all Revolving
Credit Loans made to the Company by the Bank pursuant to the Credit Agreement
described below as shown on the schedule attached to this Note, and to pay
interest (computed on the basis of the actual number of days elapsed in a year
of 365 or 366 days, as applicable) on the unpaid principal amount hereof in like
money, on the last day of February, May, August and November in each year in
respect of the next preceding calendar quarter commencing on the first such date
occurring after the date first written above, and at maturity, at the Alternate
Base Rate as defined in the Credit Agreement described below, in effect from
time to time; provided, however, that any principal or other amount not paid
when due hereunder shall bear interest at the Alternate Base Rate plus 2%,
payable on demand. Each change in the rate of interest hereon shall be effective
as of the opening of business on the date of any change in the Alternate Base
Rate.
This Note is one of the B Notes referred to in the Third Amended and
Restated Credit Agreement dated as of August 3, 2001 (the "CREDIT AGREEMENT"),
by and among the maker, Bank One, N.A., individually and as Agent, and the Banks
named therein, as the same may be supplemented, amended or modified from time to
time. This Note is subject to prepayment, and the maturity hereof may be
accelerated, as provided in said Credit Agreement. Capitalized terms used in
this Note which are defined in the Credit Agreement shall have the same meanings
herein as are provided therein.
This Note is entitled to the benefits of that certain Third Amended and
Restated Security Agreement, dated as of July 29, 2003, among the Company, the
lenders from time to time parties thereto and Bank One, N.A. (main office:
Chicago, Illinois) as Agent, as the same may be supplemented, amended or
modified from time to time, and the other Loan Documents referred to in the
Credit Agreement.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
This Note is a renewal of, and is issued in substitution and as a
replacement for, the promissory notes of the Company dated August 21, 1973,
December 21, 1978, March 13, 1984, December 31, 1984, September 17, 1987 and
August 3, 2001, respectively (the "PRIOR NOTES"). The indebtedness evidenced by
the Prior Notes and this Note is a continuing indebtedness and nothing herein
contained or implied shall be deemed or construed to render such indebtedness
paid or satisfied in full or in part or any collateral security therefor
released, discharged or otherwise prejudicially affected in any manner
whatsoever.
The obligations of the Company under this Note are solely corporate in
nature, and no recourse for the payment of the principal of or interest on this
Note shall be had against any incorporator, stockholder, officer, director,
employee, agent or affiliate of the Company (other than IP&L in the event IP&L
were to become such an affiliate) or of Broad Street Contract Services, Inc. or
against Lord Securities or any incorporator, stockholder, officer, director,
employee, agent or affiliate thereof.
▇▇▇▇▇▇ FUEL, INC.
By______________________________
Name:
Title:
D-2
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
------------------------------------------------------------------------------------------------------------------
AMOUNT OF REVOLVING AMOUNT OF PRINCIPAL UNPAID PRINCIPAL NAME OF PERSON
DATE CREDIT LOAN PREPAID BALANCE OF B NOTE MAKING NOTATION
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
D-3
EXHIBIT E
THIRD AMENDED AND RESTATED CONSENT AND AGREEMENT
EXHIBIT F
ISSUING AND PAYING AGENCY AGREEMENT
EXHIBIT G
THIRD AMENDED AND RESTATED SECURITY AGREEMENT
EXHIBIT H
ACKNOWLEDGEMENT OF
DEPOSITARY
as of July 29, 2003
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank
Attention: Commercial Paper Department
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Issuance of Notes for ▇▇▇▇▇▇ FUEL, INC.(the `Company") pursuant to
Fourth Amended and Restated Credit Agreement, dated as of July 29,
2003, by and among the Company, Bank One, N.A. individually and as
Agent (in such capacity, the "AGENT"), and the Banks now or hereafter
party thereto.
Gentlemen:
You and the Company have entered into a certain Issuing and Paying
Agency Agreement dated September 16, 1996 (the "DEPOSITARY AGREEMENT") whereby
you agreed to act as issuing and paying agent on behalf of the Company in
connection with certain commercial paper notes of the Company. The Depositary
Agreement was previously amended to refer to that certain Third Amended and
Restated Credit Agreement, dated as of August 3, 2001 (the "THIRD CREDIT
AGREEMENT"), among the Company, the Banks from time to time parties thereto and
Bank One, as Agent and Collateral Representative thereunder and to that certain
Second Amended and Restated Security Agreement, dated as of August 3, 2001 (the
"EXISTING SECURITY AGREEMENT"), between the Company and such Collateral
Representative.
Please be advised as follows:
(a) The Company now proposes to issue and sell its Senior Secured
Notes in an aggregate principal amount of $30,000,000, and in
connection therewith, proposes to enter into:
(i) a Fourth Amended and Restated Credit Agreement, dated as of
July 29, 2003 (the "FOURTH CREDIT AGREEMENT"), among the
Company, the Banks from time to time parties thereto and
Bank One, as Agent thereunder, which Fourth Credit Agreement
amends and restates the Third Credit Agreement in its
entirety;
(ii) a Collateral Agency and Intercreditor Agreement, dated as of
July 29, 2003 (the "COLLATERAL AGENCY AGREEMENT"), with (A)
Bank One, as Collateral Agent for the several Secured
Parties referred to therein (the "COLLATERAL AGENT"), (B)
Bank One, as Agent under the Credit Agreement, (C) Allstate
Life Insurance Company, as purchaser of the Senior Secured
Notes, and (D) the Company; and
(iii) a Third Amended and Restated Security Agreement, dated as
July 29, 2003 (the "SECURITY AGREEMENT"), between the
Company and the Collateral Agent, which Security Agreement
amends and restates in its entirety the Existing Security
Agreement.
(b) It is a condition precedent to the effectiveness of the Fourth
Credit Agreement and to the obligation of the Note Purchaser to
purchase the Senior Secured Notes that among other things, you
shall have executed and delivered to the Company and the
Collateral Agent this instrument (hereinafter, this
"ACKNOWLEDGEMENT").
We hereby instruct and agree with you as follows:
1. FOURTH CREDIT AGREEMENT. Copies of the Third Credit Agreement and
the Security Agreement are being delivered to you herewith. Upon the
effectiveness of the Fourth Credit Agreement, all references in the Depositary
Agreement to the "Credit Agreement" shall be deemed to refer to the Fourth
Credit Agreement and all references in the Depositary Agreement to the "Security
Agreement" shall be deemed to refer to the Security Agreement.
2. APPLICABILITY TO ASSIGNEES. You hereby acknowledge that all terms
and provisions in favor of The First National Bank of Chicago as the "Lender" or
in favor of Bank One as "Agent" or "Collateral Representative" under the terms
of the Depositary Agreement shall, upon the effectiveness of the Fourth Credit
Agreement, run in favor of Bank One as Agent or Collateral Agent, and that all
of your obligations and duties to or for the benefit of Bank One pursuant to the
Fourth Credit Agreement shall be deemed obligations to Bank One in such
capacities. You hereby further acknowledge and agree that any actions that may
be or are required to be taken by The First National Bank of Chicago as the
"Lender" under the terms of the Depositary Agreement may or shall, as
appropriate, be taken by Bank One as Agent or Collateral Agent upon such
effectiveness and consummation. All notices to be delivered to the "Lender" in
accordance with Paragraph 10 of the Depositary Agreement, as amended hereby,
shall, upon such effectiveness and consummation, be delivered to Bank One in its
capacities as Agent and Collateral Agent at the address set forth in such
Paragraph 10 (as amended hereby).
3. CONTROL AGREEMENT. You hereby acknowledge and agree with the
Company and the Agent that: (i) pursuant to the Fourth Credit Agreement and the
Security Agreement, the Company has granted to the Collateral Agent for the
ratable benefit of the Secured Parties a security interest in the Operating
Account referred to in Section 4.3 of the Security Agreement and maintained with
you, (ii) as provided in such Section 4.3, you will comply with instructions
originated by the Collateral Agent directing disposition of the funds in the
Operating Account without further consent by the Company, (iii) the provisions
of such Section 4.3 are intended to confer upon the Collateral Agent "control"
of the Operating Account within the meaning of Article 9 of the Uniform
H-2
Commercial Code as in effect from and after July 1, 2001 in the State of New
York, (iv) such security interest in the Operating Account is perfected by
virtue of such "control" and (v) such Operating Account is maintained with you
in the Borough of Manhattan in the City of New York and the terms thereof are
governed by and to be construed in accordance with the laws of the State of New
York.
4. NOTICES. Section 10 of the Depositary Agreement is hereby amended
and restated to read in its entirety as follows:
10. NOTICES. Except where telephonic instructions or notices are
authorized herein to be given, any notice or instructions, herein
required or permitted to be given shall be in writing (including
telecopier) and mailed, telecopied or delivered (via overnight courier
or otherwise) and addressed:
If to Chase concerning the daily issuance and redemption of Notes:
Attention: Commercial Paper Division
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇; and
All other:
Attention: Commercial Paper Department
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 212-946-8181;
If to the Company:
▇▇▇▇▇▇ Fuel, Inc.
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Contract Services, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10005-2902
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Vice President;
with a copy to each of:
Broad Street Contract Services, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10005-2902
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Vice President; and
H-3
Interstate Power & Light Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Vice President, Treasurer and
Corporate Secretary;
If to the Lender:
Bank One, N.A.
One Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Utilities Group;
or, as to each party, at such other address as shall be designated by
such party in a written notice to the other parties. All such notices
and communications shall, when mailed, telecopied or delivered, be
effective five days after being deposited in the mails, or when
telecopied, or when delivered.
5. RATIFICATION AND REAFFIRMATION. The Depositary Agreement remains
in full force and effect and is hereby ratified, approved, and confirmed in all
respects. From and after the date first written above, each reference in the
Depositary Agreement to "this Depositary Agreement", "hereof," "hereunder,' or
words of like import, and all references to the Depositary Agreement in any and
all agreements, instruments, documents, notes, certificates, and other writings
of every kind and nature shall be deemed to refer to the Depositary Agreement as
interpreted in accordance with this Acknowledgement.
H-4
Please indicate your acknowledgement and acceptance of these terms by
signing and returning to us the copy of this Acknowledgement provided for that
purpose.
Very truly yours,
▇▇▇▇▇▇ FUEL, INC.
By______________________________________
Name:
Title:
Acknowledged, Accepted and Agreed:
▇▇ ▇▇▇▇▇▇ CHASE BANK
(formerly The Chase Manhattan Bank)
By______________________________________
Name:
Title:
BANK ONE, N.A. (main Office: Chicago, Illinois),
as Collateral Agent and as Agent under the Credit Agreement
By______________________________________
Name:
Title:
H-5
EXHIBIT I
AMENDMENT TO
FUEL LEASE
EXHIBIT J
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "ASSIGNMENT AGREEMENT") between
______________ ______________ (the "ASSIGNOR") and ____________________________
(the "PURCHASER") is dated as of __________, 20__. The parties hereto agree as
follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit
Agreement (which, as it may be amended, modified, renewed or extended from time
to time is herein called the "CREDIT AGREEMENT") described in Item 1 of Schedule
1 attached hereto ("SCHEDULE 1"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings attributed to them in the
Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns
to the Purchaser, and the Purchaser hereby purchases and assumes from the
Assignor, an interest in and to the Assignor's rights and obligations under the
Credit Agreement such that after giving effect to such assignment the Purchaser
shall have the percentage interest specified in Item 3 of Schedule 1 of all
outstanding rights and obligations under the Credit Agreement relating to the
facilities listed in Item 3 of Schedule 1 and the other Loan Documents. The
aggregate Commitment (or Loans, if the applicable Commitment has been
terminated) purchased by the Purchaser hereunder is set forth in Item 4 of
Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement
(the "EFFECTIVE DATE") shall be the later of the date specified in Item 5 of
Schedule 1 or two Business Days (or such shorter period agreed to by the Agent)
after a Notice of Assignment substantially in the form of Exhibit "I" attached
hereto has been delivered to the Agent. In no event will the Effective Date
occur if the payments required to be made by the Purchaser to the Assignor on
the Effective Date under Sections 4 and 5 hereof are not made on the proposed
Effective Date. The Assignor will notify the Purchaser of the proposed Effective
Date no later than the Business Day prior to the proposed Effective Date. As of
the Effective Date, (i) the Purchaser shall have the rights and obligations of a
Bank under the Loan Documents with respect to the rights and obligations
assigned to the Purchaser hereunder and (ii) the Assignor shall relinquish its
rights and be released from its corresponding obligations under the Loan
Documents with respect to the rights and obligations assigned to the Purchaser
hereunder. The assignment and assumption provided for herein is subject to the
consent of the Company if such consent is required pursuant to the Credit
Agreement.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the
Purchaser shall be entitled to receive from the Agent all payments of principal,
interest and fees with respect to the interest assigned hereby. The Purchaser
shall advance funds directly to the Agent with respect to all Loans and
reimbursement payments made on or after the Effective Date with respect to the
interest assigned hereby. [In consideration for the sale and assignment of Loans
hereunder, the Purchaser shall pay the Assignor, on the Effective Date, an
amount equal to the principal amount of the portion of all Loans assigned to the
Purchaser hereunder. The Purchaser will also promptly remit to the Assignor any
amounts of interest on Loans and fees received from the Agent that relate to the
portion of the Loans assigned to the Purchaser hereunder for periods prior to
the Effective Date, and not previously paid by the Purchaser to the Assignor.]*
In the event that either party hereto receives any payment to which the other
party hereto is entitled under this Assignment Agreement, then the party
receiving such amount shall promptly remit it to the other party hereto.
5. [FEES PAYABLE BY THE PURCHASER. The Purchaser shall pay to the
Assignor a fee on each day on which a payment of interest or commitment fees is
made under the Credit Agreement with respect to the amounts assigned to the
Purchaser hereunder (other than a payment of interest or commitment fees for the
period prior to the Effective Date that the Purchaser is obligated to deliver to
the Assignor pursuant to Section 4 hereof). The amount of such fee shall be the
difference between (i) the interest or fee, as applicable, paid with respect to
the amounts assigned to the Purchaser hereunder and (ii) the interest or fee, as
applicable, which would have been paid with respect to the amounts assigned to
the Purchaser hereunder if each interest rate was __ of 1% less than the
interest rate paid by the Company or if the commitment fee was of 1% less than
the commitment fee paid by the Company, as applicable. In addition, the
Purchaser agrees to pay __ % of the recordation fee required to be paid to the
Agent in connection with this Assignment Agreement.]
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim. It is understood and agreed
that the assignment and assumption hereunder are made without recourse to the
Assignor and that the Assignor makes no other representation or warranty of any
kind to the Purchaser. Neither the Assignor nor any of its officers, directors,
employees, agents or attorneys shall be responsible for (i) the due execution,
legality, validity, enforceability, genuineness, sufficiency or collectability
of any Loan Document, including without limitation, documents granting the
Assignor and the other Banks a security interest in assets of the Company or any
guarantor, (ii) any representation, warranty or statement made in or in
connection with any of the Loan Documents, (iii) the financial condition or
creditworthiness of the Company or any guarantor, (iv) the performance of or
compliance with any of the terms or provisions of any of the Loan Documents, (v)
inspecting any of the property, books or records of the Company, (vi) the
validity, enforceability, perfection, priority, condition, value or sufficiency
of any collateral securing or purporting to secure the Loans or (vii) any
mistake, error of judgment, or action taken or omitted to be taken in connection
with the Loans or the Loan Documents.
7. REPRESENTATIONS OF THE PURCHASER. The Purchaser (i) confirms that
it has received a copy of the Credit Agreement, together with copies of the
financial statements requested by the Purchaser and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment Agreement, (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any other
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, (iii) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under the Loan
----------------------
* Each Assignor may insert its standard payment provisions in lieu of the
payment terms included in this Exhibit.
J-2
Documents as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto, (iv) agrees that it will perform in
accordance with their terms all of the obligations that by the terms of the Loan
Documents are required to be performed by it as a Bank, (v) agrees that its
payment instructions and notice instructions are as set forth in the attachment
to Schedule 1, [and (vi) attaches the forms prescribed by the Internal Revenue
Service of the United States certifying that the Purchaser is entitled to
receive payments under the Loan Documents without deduction or withholding of
any United States federal income taxes].**
8. INDEMNITY. The Purchaser agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor
in connection with or arising in any manner from the Purchaser's non-performance
of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Purchaser
shall have the right pursuant to Section 11.03(a) of the Credit Agreement to
assign the rights that are assigned to the Purchaser hereunder to any entity or
person, provided that (i) any such subsequent assignment does not violate any of
the terms and conditions of the Loan Documents or any law, rule, regulation,
order, writ, judgment, injunction or decree and that any consent required under
the terms of the Loan Documents has been obtained and (ii) unless the prior
written consent of the Assignor is obtained, the Purchaser is not thereby
released from its obligations to the Assignor hereunder, if any remain
unsatisfied, including, without limitation, its obligations under Sections 4, 5
and 8 hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
Aggregate Commitment occurs between the date of this Assignment Agreement and
the Effective Date, the percentage interest specified in Item 3 of Schedule 1
shall remain the same, but the dollar amount purchased shall be recalculated
based on the reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached
Notice of Assignment embody the entire agreement and understanding between the
parties hereto and supersede all prior agreements and understandings between the
parties hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
13. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall be
the address set forth in the attachment to Schedule 1.
--------------
** to be inserted if the Purchaser is not incorporated under the laws of the
United States, or a state thereof.
J-3
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By______________________________________
Name:
Title:
[NAME OF PURCHASER]
By______________________________________
Name:
Title:
J-4
SCHEDULE 1
TO ASSIGNMENT AGREEMENT
1. Description and Date of Credit Agreement:
Third Amended and Restated Credit Agreement by and among ▇▇▇▇▇▇ FUEL,
INC., BANK ONE, N.A., individually and as Agent, and the Banks party
thereto, dated as of August 3, 2001.
2. Date of Assignment Agreement: __________________, 20__
3. Amounts (As of Date of Item 2 above):
a. Total of Commitments (Loans)*
under Credit Agreement $_____________
b. Purchaser's Percentage of Facility purchased
under the Assignment Agreement** _____________%
c. Amount of Assigned Share in Facility
purchased under the Assignment Agreement $_____________
4. Purchaser's Aggregate (Loan Amount)*
Commitment Amount Purchased Hereunder: $_____________
5. Proposed Effective Date: $_____________
Accepted And Agreed:
[NAME OF ASSIGNOR] [NAME OF PURCHASER]
By______________________________ By______________________________
Name: Name:
Title: Title:
-----------------
* If Commitments have been terminated, insert outstanding Loans in place of
Commitment
** Percentage taken to 10 decimal places
ATTACHMENT TO SCHEDULE 1 TO ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address for the Assignor and the Purchaser
EXHIBIT A
TO ASSIGNMENT AGREEMENT
NOTICE
OF ASSIGNMENT
_________________, 20__
To: [NAME OF AGENT]
From: [NAME OF ASSIGNOR] (the "ASSIGNOR")
[NAME OF PURCHASER] (the "PURCHASER")
1. We refer to that Credit Agreement (the "CREDIT AGREEMENT")
described in Item 1 of Schedule 1 attached hereto ("SCHEDULE 1"). Capitalized
terms used herein and not otherwise defined herein or in such consent shall have
the meanings attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "NOTICE") is given and delivered
to the Agent pursuant to Section 11.03(b) of the Credit Agreement.
14. 3. The Assignor and the Purchaser have entered into an Assignment
Agreement, dated as of ____________, 20__ (the "ASSIGNMENT"), pursuant to which,
among other things, the Assignor has sold, assigned, delegated and transferred
to the Purchaser, and the Purchaser has purchased, accepted and assumed from the
Assignor the percentage interest specified in Item 3 of Schedule 1 of all
outstandings, rights and obligations under the Credit Agreement relating to the
facility listed in Item 3 of Schedule 1, including, without limitation, such
interest in the Assignor's Commitment (if applicable) and the Loans owing to the
Assignor relating to such facility. The Effective Date of the Assignment shall
be the later of the date specified in Item 5 of Schedule 1 to the Assignment
("SCHEDULE 1") or two Business Days (or such shorter period as agreed to by the
Agent) after this Notice of Assignment and any fees required by Sections
11.03(b) of the Credit Agreement have been delivered to the Agent, provided that
the Effective Date shall not occur if any condition precedent agreed to by the
Assignor and the Purchaser has not been satisfied. The assignment and assumption
referred to for herein is subject to the consent of the Company if such consent
is required pursuant to the Credit Agreement.
4. The Assignor and the Purchaser hereby give to the Agent notice of
the assignment and assumption referred to herein. The Assignor will confer with
the Agent before the date specified in Item 5 of Schedule 1 to determine if the
Assignment Agreement will become effective on such date pursuant to Section 3
hereof, and will confer with the Agent to determine the Effective Date pursuant
to Section 3 hereof if it occurs thereafter. The Assignor shall notify the Agent
if the Assignment Agreement does not become effective on any proposed Effective
Date as a result of the failure to satisfy the conditions precedent agreed to by
the Assignor and the Purchaser. At the request of the Agent, the Assignor will
give the Agent written confirmation of the satisfaction of the conditions
precedent.
5. The Assignor or the Purchaser shall pay to the Agent on or before
the Effective Date the processing fee of $2,500 required by Section 11.03(b) of
the Credit Agreement.
6. If B Notes are outstanding on the Effective Date, the Assignor and
the Purchaser request and direct that the Agent prepare and cause the Company to
execute and deliver new B Notes or, as appropriate, replacements notes, to the
Assignor and the Purchaser. The Assignor and, if applicable, the Purchaser each
agree to deliver to the Agent the original B Note received by it from the
Company upon its receipt of a new B Note in the appropriate amount.
7. The Purchaser advises the Agent that notice and payment
instructions are set forth in the attachment to Schedule 1.
[NAME OF ASSIGNOR] [NAME OF PURCHASER]
By_________________________________ By____________________________
Name: Name:
Title: Title:
Consented to as of the within Effective Date:
▇▇▇▇▇▇ FUEL, INC.
By________________________________
Name:
Title:
[Attach photocopy of Schedule 1 to Assignment]