EXHIBIT 10.3
4-YEAR LETTER OF CREDIT REIMBURSEMENT AGREEMENT
among
NISOURCE FINANCE CORP.,
as Borrower,
NISOURCE INC.,
as Guarantor,
THE LEAD ARRANGER
and
LENDERS
Party Hereto,
as Lenders,
BARCLAYS BANK PLC,
as Administrative Agent and LC Bank,
BARCLAYS CAPITAL
Lead Arranger
BARCLAYS CAPITAL
Sole Book Runner
Dated as of February 13, 2004
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS........................................................... 1
SECTION 1.01. DEFINED TERMS.................................................. 1
SECTION 1.02. TERMS GENERALLY................................................ 13
SECTION 1.03. ACCOUNTING TERMS; GAAP......................................... 13
ARTICLE II THE CREDITS.......................................................... 14
SECTION 2.01. LETTERS OF CREDIT.............................................. 14
SECTION 2.02. MANDATORY TERMINATION OR REDUCTION OF COMMITMENTS.............. 18
SECTION 2.03. CASH COLLATERALIZATION......................................... 18
SECTION 2.04. REDUCTION OF COMMITMENTS....................................... 18
SECTION 2.05. EVIDENCE OF DEBT............................................... 19
SECTION 2.06. FEES........................................................... 19
SECTION 2.07. INCREASED COSTS................................................ 19
SECTION 2.08. TAXES.......................................................... 20
SECTION 2.09. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SET-OFFS.... 21
SECTION 2.10. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS................. 23
ARTICLE III CONDITIONS.......................................................... 24
SECTION 3.01. CONDITIONS PRECEDENT TO THE INITIAL EXTENSION OF CREDIT........ 24
SECTION 3.02. CONDITIONS PRECEDENT TO EACH EXTENSION OF CREDIT............... 25
ARTICLE IV REPRESENTATIONS AND WARRANTIES....................................... 25
ARTICLE V AFFIRMATIVE COVENANTS................................................. 28
ARTICLE VI NEGATIVE COVENANTS................................................... 31
ARTICLE VII FINANCIAL COVENANTS................................................. 35
SECTION 7.01. INTEREST COVERAGE RATIO........................................ 35
SECTION 7.02. DEBT TO CAPITALIZATION RATIO................................... 35
ARTICLE VIII EVENTS OF DEFAULT.................................................. 35
ARTICLE IX THE ADMINISTRATIVE AGENT............................................. 38
ARTICLE X GUARANTY.............................................................. 41
SECTION 10.01. THE GUARANTY.................................................. 41
SECTION 10.02. WAIVERS....................................................... 42
ARTICLE XI MISCELLANEOUS........................................................ 43
SECTION 11.01. NOTICES....................................................... 43
SECTION 11.02. WAIVERS; AMENDMENTS........................................... 44
SECTION 11.03. EXPENSES; INDEMNITY; DAMAGE WAIVER............................ 45
SECTION 11.04. SUCCESSORS AND ASSIGNS........................................ 46
SECTION 11.05. SURVIVAL...................................................... 49
SECTION 11.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS...................... 49
SECTION 11.07. SEVERABILITY.................................................. 49
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SECTION 11.08. RIGHT OF SETOFF............................................... 49
SECTION 11.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS.... 49
SECTION 11.10. WAIVER OF JURY TRIAL. ....................................... 50
SECTION 11.11. HEADINGS...................................................... 50
SECTION 11.12. CONFIDENTIALITY............................................... 50
EXHIBITS AND SCHEDULES
EXHIBIT A Form of Assignment and Acceptance
EXHIBIT B Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
SCHEDULE 1.01.1 Lenders and Commitments
SCHEDULE 1.01.2 LC Amount
SCHEDULE 2.01 Letters of Credit
SCHEDULE 6.01(e) Existing Agreements
4-YEAR LETTER OF CREDIT REIMBURSEMENT AGREEMENT, dated as of February
13, 2004 (this "AGREEMENT"), among NISOURCE FINANCE CORP., an Indiana
corporation, as Borrower (the "BORROWER"), NISOURCE INC., a Delaware corporation
("NISOURCE"), as Guarantor (the "GUARANTOR"), the Lead Arranger and other
Lenders from time to time party hereto, and BARCLAYS BANK PLC, as issuer of any
Letters of Credit provided for hereunder (in such capacity, the "LC BANK") and
as administrative agent for the Lenders hereunder (in such capacity, the
"ADMINISTRATIVE AGENT").
WITNESSETH:
WHEREAS, the parties are willing to enter into this 4-Year Letter of
Credit Reimbursement Agreement on the terms and subject to the conditions herein
set forth.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following
terms have the meanings specified below:
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"AGGREGATE COMMITMENTS" means the aggregate amount of the
Commitments of all Lenders, as in effect from time to time and as
reduced pursuant to the terms of Section 2.04. As of the date hereof,
the Aggregate Commitments equal $100,689,865.
"ALTERNATE BASE RATE" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and
(b) the Federal Funds Effective Rate in effect on such day plus 1/2 of
1%. Any change in the Alternate Base Rate due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective from and
including the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"APPLICABLE PERCENTAGE" means, with respect to any Lender, the
percentage of the Aggregate Commitments represented by such Lender's
Commitment. If the Commitments have terminated or expired, the
Applicable Percentages shall be determined based upon the Commitments
most recently in effect, giving effect to any assignments.
"APPLICABLE RATE" means, for any day, with respect the LC Risk
Participation Fee payable hereunder, a rate per annum equal to 0.825%.
"ARRANGER" shall mean Barclays.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party
whose consent is required by Section 11.04), and accepted by the
Administrative Agent, in the form of Exhibit A or any other form
approved by the Administrative Agent.
"AVAILABILITY PERIOD" means the period from and including the
Effective Date to but excluding the Termination Date.
"BANK CREDIT AGREEMENT" means that certain 3-Year Revolving
Credit Agreement, dated as of March 23, 2001, by and among the
Borrower, the Guarantor, the lead arrangers, senior managing agents,
managers, co-documentation agents and other lenders from time to time
parties thereto, Credit Suisse First Boston, as syndication agent, and
Barclays, as administrative agent thereunder, as the same may be
amended, restated, supplemented, refinanced, replaced or otherwise
modified from time to time.
"BARCLAYS" means Barclays Bank PLC, an English banking
corporation.
"BENEFICIARY" has the meaning set forth in Section 10.01.
"BOARD" means the Board of Governors of the Federal Reserve
System of the United States of America.
"BORROWER" means NiSource Finance Corp., Inc. an Indiana
corporation.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or
required by law to remain closed.
"CAPITAL LEASE" means, as to any Person, any lease of real or
personal property in respect of which the obligations of the lessee are
required, in accordance with GAAP, to be capitalized on the balance
sheet of such Person.
"CAPITAL STOCK" means any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests in a
Person other than a corporation (including, but not limited to, all
common stock and preferred stock and partnership, membership and joint
venture interests in a Person), and any and all warrants, rights or
options to purchase any of the foregoing.
"CASH ACCOUNT" has the meaning set forth in Section 8.01.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act, 42, U.S.C. Section 9601 et seq., as
amended.
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"CHANGE OF CONTROL" means (a) any "person" or "group" within
the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934, as amended, shall become the "beneficial owner" (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended) of more than 50% of the then outstanding voting Capital Stock
of the Guarantor, (b) Continuing Directors shall cease to constitute at
least a majority of the directors constituting the Board of Directors
of the Guarantor, (c) a consolidation or merger of the Guarantor shall
occur after which the holders of the outstanding voting Capital Stock
of the Guarantor immediately prior thereto hold less than 50% of the
outstanding voting Capital Stock of the surviving entity; (d) more than
50% of the outstanding voting Capital Stock of the Guarantor shall be
transferred to an entity of which the Guarantor owns less than 50% of
the outstanding voting Capital Stock; (e) there shall occur a sale of
all or substantially all of the assets of the Guarantor; or (f) the
Borrower, NIPSCO or Columbia shall cease to be a Wholly-Owned
Subsidiary of the Guarantor (except to the extent otherwise permitted
under Section 6.01(b)).
"CHANGE IN LAW" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law,
rule or regulation or in the interpretation or application thereof by
any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender (or, for purposes of Section 2.07(b), by any
lending office of such Lender or by such Lender's holding company, if
any) with any request, guideline or directive (whether or not having
the force of law) of any Governmental Authority made or issued after
the date of this Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
"COLUMBIA" means Columbia Energy Group, a Delaware
corporation.
"COMMITMENT" means, with respect to each Lender, the
commitment of such Lender to participate in Letters of Credit issued
hereunder as set forth herein, as such commitment may be (a) reduced
from time to time or terminated pursuant to Section 2.02 or Section
2.04 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 11.04. The initial
amount of each Lender's Commitment is (x) the amount set forth on
Schedule 1.01.1 opposite such Lender's name; or (y) the amount set
forth in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Commitment, as applicable.
"CONSOLIDATED CAPITALIZATION" means the sum of (a)
Consolidated Debt, (b) consolidated common equity of the Guarantor and
its Consolidated Subsidiaries determined in accordance with GAAP, and
(c) the aggregate liquidation preference of preferred stocks (other
than preferred stocks subject to mandatory redemption or repurchase) of
the Guarantor and its Consolidated Subsidiaries upon involuntary
liquidation.
"CONSOLIDATED DEBT" means, at any time, the indebtedness of
the Guarantor and its Consolidated Subsidiaries that would be
classified as debt on a balance sheet of the Guarantor determined on a
consolidated basis in accordance with GAAP.
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"CONSOLIDATED INTEREST EXPENSE" means, for any period, the
interest expense of the Guarantor and its Consolidated Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED NET INCOME" means, for any period, the net
income of the Guarantor and its Consolidated Subsidiaries, determined
on a consolidated basis in accordance with GAAP, adjusted to exclude:
(a) any extraordinary gain or loss, (b) any gain or loss on
dispositions of capital assets and (c) the non-cash effects of any
impairment or write-down of assets.
"CONSOLIDATED NET TANGIBLE ASSETS" means, at any time, the
total amount of assets appearing on a consolidated balance sheet of the
Guarantor and its Subsidiaries (other than Utility Subsidiaries),
determined in accordance with GAAP and prepared as of the end of the
fiscal quarter then most recently ended, less, without duplication, the
following (other than those of Utility Subsidiaries):
(a) all current liabilities (excluding any thereof that are by
their terms extendable or renewable at the sole option of the obligor
thereon, without requiring the consent of the obligee, to a date more
than 12 months after the date of determination);
(b) all reserves for depreciation and other asset valuation
reserves (but excluding any reserves for deferred Federal income taxes,
arising from accelerated amortization or otherwise);
(c) all intangible assets, such as goodwill, trademarks, trade
names, patents and unamortized debt discount and expense, carried as an
asset on such balance sheet; and
(d) all appropriate adjustments on account of minority
interests of other Persons holding common stock of any Subsidiary of
the Guarantor.
"CONSOLIDATED SUBSIDIARY" means, on any date, each Subsidiary
of the Guarantor the accounts of which, in accordance with GAAP, would
be consolidated with those of the Guarantor in its consolidated
financial statements if such statements were prepared as of such date.
"CONTINGENT GUARANTY" means a direct or contingent liability
in respect of a Project Financing (whether incurred by assumption,
guaranty, endorsement or otherwise) that either (a) is limited to
guarantying performance of the completion of the Project that is
financed by such Project Financing or (b) is contingent upon, or the
obligation to pay or perform under which is contingent upon, the
occurrence of any event other than failure of the primary obligor to
pay upon final maturity (whether by acceleration or otherwise).
"CONTINUING DIRECTORS" means (a) all members of the board of
directors of the Guarantor who have held office continually since the
Effective Date, and (b) all members of the board of directors of the
Guarantor who were elected as directors after the Effective Date and
whose nomination for election was approved by a vote of at least 50% of
the Continuing Directors.
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"CONTRACTUAL OBLIGATION" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
instrument or other undertaking to which such Person is a party or by
which it or any of its property is bound.
"CONTROL" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of
a Person, whether through the ability to exercise voting power, by
contract or otherwise. "CONTROLLING" and "CONTROLLED" have meanings
correlative thereto.
"CREDIT DOCUMENTS" means (a) this Agreement and any Assignment
and Acceptances, (b) any certificates, opinions and other documents
required to be delivered pursuant to Section 3.01, and (c) any other
documents delivered by a Credit Party pursuant to or in connection with
any one or more of the foregoing.
"CREDIT PARTY" means each of the Borrower and the Guarantor.
"DEBT FOR BORROWED MONEY" means, as to any Person, without
duplication, (a) all obligations of such Person for borrowed money, (b)
all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, (c) all Capital Lease obligations of such Person,
and (d) all obligations of such Person under synthetic leases, tax
retention operating leases, off-balance sheet loans or other
off-balance sheet financing products that, for tax purposes, are
considered indebtedness of borrowed money of the lessee but are
classified as operating leases under GAAP.
"DEBT TO CAPITALIZATION RATIO" means, at any time, the ratio
of Consolidated Debt to Consolidated Capitalization.
"DEFAULT" means any event or condition that constitutes an
Event of Default or that, upon notice, lapse of time or both would,
unless cured or waived, become an Event of Default.
"DOLLARS" or "$" refers to lawful money of the United States
of America.
"EFFECTIVE DATE" means the date on which this Agreement has
been executed and delivered by each of the Borrower, the Guarantor, the
initial Lenders, the LC Bank and the Administrative Agent.
"ENVIRONMENTAL LAWS" means any and all foreign, federal,
state, local or municipal laws (including, without limitation, common
laws), rules, orders, regulations, statutes, ordinances, codes,
decrees, judgments, awards, writs, injunctions, requirements of any
Governmental Authority or other requirements of law regulating,
relating to or imposing liability or standards of conduct concerning,
pollution, waste, industrial hygiene, occupational safety or health,
the presence, transport, manufacture, generation, use, handling,
treatment, distribution, storage, disposal or release of Hazardous
Substances, or protection of human health, plant life or animal life,
natural resources or the environment, as now or at any time hereafter
in effect.
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"ENVIRONMENTAL LIABILITY" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Guarantor or any
of its Subsidiaries directly or indirectly resulting from or based upon
(a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA AFFILIATE" means any Person who, for purposes of Title
IV of ERISA, is a member of the Guarantor's controlled group, or under
common control with the Guarantor, within the meaning of Section 414 of
the Code and the regulations promulgated and rulings issued thereunder.
"ERISA EVENT" means (a) a reportable event, within the meaning
of Section 4043 of ERISA, unless the 30-day notice requirement with
respect thereto has been waived by the PBGC, (b) the provision by the
administrator of any Plan of a notice of intent to terminate such Plan,
pursuant to Section 4041(a)(2) and 4041(c) of ERISA (including any such
notice with respect to a plan amendment referred to in Section 4041(e)
of ERISA), (c) the withdrawal by the Guarantor or an ERISA Affiliate
from a Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA, (d)
the failure by the Guarantor or any ERISA Affiliate to make a payment
to a Plan required under Section 302(f)(1) of ERISA, which Section
imposes a lien for failure to make required payments, (e) the adoption
of an amendment to a Plan requiring the provision of security to such
Plan, pursuant to Section 307 of ERISA, or (f) the institution by the
PBGC of proceedings to terminate a Plan, pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition which may reasonably
be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer a Plan.
"EVENT OF DEFAULT" has the meaning assigned to such term in
Article VIII.
"EXCLUDED TAXES" means, with respect to the Administrative
Agent, any Lender or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income
or franchise taxes imposed on (or measured by) its net income or net
earnings by the United States of America, or by the jurisdiction under
the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its
applicable lending office is located and (b) in case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.10(d)), any withholding tax that (i) is imposed on
amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement, except to the extent that such
Foreign Lender's assignor (if any) was entitled, at the time
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of assignment, to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.08(a) or (ii) is
attributable to such Foreign Lender's failure to comply with Section
2.08 (e) when legally able to do so.
"EXPOSURE" means, with respect to any Lender at any time, such
Lender's Applicable Percentage of the aggregate LC Outstandings at such
time plus such Lender's Applicable Percentage of the aggregate
Unreimbursed LC Disbursements at such time.
"EXTENSION OF CREDIT" means (a) the deemed issuance of the
Letters of Credit by the LC Bank on the Effective Date or (b) the
Modification of any Letter of Credit having the effect of extending the
stated termination date thereof, increasing the LC Outstandings, or
otherwise altering any of the material terms or conditions thereof.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of
1%) of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average (rounded upwards, if necessary, to the
next 1/100 of 1%) of the quotations for such day for such transactions
received by the Administrative Agent from three Federal funds brokers
of recognized standing selected by it.
"FOREIGN LENDER" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is
located. For purposes of this definition, the United States of America,
each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in the
United States of America consistent with those applied in the
preparation of the financial statements referred to in Section 4.01(e).
"GOVERNMENTAL AUTHORITY" means the government of the United
States of America, any other nation, or any political subdivision of
the United States of America or any other nation, whether state or
local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of
or pertaining to government and includes, in any event, an "Independent
System Operator" or any entity performing a similar function.
"GUARANTOR" means NiSource.
"GUARANTY" means the guaranty of the Guarantor pursuant to
Article X of this Agreement.
"HAZARDOUS MATERIALS" means any asbestos; flammables; volatile
hydrocarbons; industrial solvents; explosive or radioactive materials;
hazardous wastes; toxic substances; liquefied natural gas; natural gas
liquids; synthetic gas; oil, petroleum, or related materials and any
constituents, derivatives, or byproducts thereof or additives
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thereto; or any other material, substance, waste, element or compound
(including any product) regulated pursuant to any Environmental Law,
including, without limitation, substances defined as "hazardous
substances," "hazardous materials," "contaminants," "pollutants,"
"hazardous wastes," "toxic substances," "solid waste," or "extremely
hazardous substances" in (i) CERCLA, (ii) the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801 et seq., (iii) the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., (iv) the
Federal Water Pollution Control Act, as amended, 33 U.S.C. Section 1251
et seq., (v) the Clean Air Act, 42 U.S.C. Section 7401 et seq., (vi)
the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., (vii)
the Safe Drinking Water Act, 42 U.S.C. Section 300f et seq., or (viii)
foreign, state, local or municipal law, in each case, as may be amended
from time to time.
"INDEBTEDNESS" of any Person means (without duplication) (a)
Debt for Borrowed Money, (b) obligations to pay the deferred purchase
price of property or services, except trade accounts payable arising in
the ordinary course of business which are not overdue, (c) all
obligations, contingent or otherwise, in respect of any letters of
credit, bankers' acceptances or interest rate, currency or commodity
swap, cap or floor arrangements, (d) all indebtedness of others secured
by (or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned
or acquired by such Person, whether or not the indebtedness secured
thereby has been assumed, (e) all amounts payable in connection with
mandatory redemptions or repurchases of preferred stock, and (f)
obligations under direct or indirect guarantees in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire,
or otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to in
clauses (a) through (e) above.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INDEMNITEE" has the meaning set forth in Section 11.03.
"INDEX DEBT" means the senior unsecured long-term debt
securities of the Borrower, without third-party credit enhancement
provided by a Person other than the Guarantor.
"INFORMATION" has the meaning set forth in Section 11.12.
"INITIAL CREDIT EVENT DATE" means the date on which the
initial Letter of Credit hereunder is deemed issued hereunder.
"INSUFFICIENCY" means, with respect to any Plan, the amount,
if any, by which the present value of all vested and unvested accrued
benefits under such Plan exceeds the fair market value of assets
allocable to such benefits, all determined as of the then most recent
valuation date for such Plan using actuarial assumptions used in
determining such Plan's normal cost for purposes of Section
412(b)(2)(A) of the Code.
"INTEREST COVERAGE RATIO" means, for any period, the ratio of
(i) the sum of (a) Consolidated Net Income for such period plus (b)
income taxes deducted in
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determining such Consolidated Net Income plus (c) Consolidated Interest
Expense for such period to (ii) Consolidated Interest Expense for such
period.
"LC AMOUNT" means, for any date of determination, an amount
equal to the amount set forth on Schedule 1.01.2 for such date.
"LC OUTSTANDINGS" means, for any date of determination, the
aggregate maximum amount available to be drawn under all Letters of
Credit outstanding on such date (assuming the satisfaction of all
conditions for drawing enumerated therein).
"LC REIMBURSEMENT DATE" means the Business Day immediately
after the date the LC Bank shall pay any amount under any Letter of
Credit.
"LC RISK PARTICIPATION FEE" has the meaning set forth in
Section 2.06.
"LENDERS" means (a) the Persons listed on Schedule 1.01.1,
including any such Person identified thereon or in the signature pages
hereto as a Lead Arranger, and any other Person that shall have become
a party hereto pursuant to an Assignment and Acceptance, other than any
such Person that ceases to be a party hereto pursuant to an Assignment
and Acceptance and (b) if and to the extent so provided in Section
2.01(d), the LC Bank.
"LETTER OF CREDIT" means a letter of credit deemed to be
issued by the LC Bank pursuant to the terms of this Agreement, as such
letter of credit may from time to time be amended, modified or extended
in accordance with the terms of this Agreement.
"LIEN" has the meaning set forth in Section 6.01(a).
"MARGIN STOCK" means margin stock within the meaning of
Regulations U and X issued by the Board.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, assets, operations, condition (financial or
otherwise) or prospects of the Guarantor and its Subsidiaries taken as
a whole; (b) the validity or enforceability of any of Credit Documents
or the rights, remedies and benefits available to the Administrative
Agent and the Lenders thereunder; or (c) the ability of the Borrower or
the Guarantor to consummate the Transactions.
"MATERIAL SUBSIDIARY" means at any time the Borrower, NIPSCO,
Columbia, and each Subsidiary of the Guarantor, other than the
Borrower, NIPSCO and Columbia, in respect of which:
(a) the Guarantor's and its other Subsidiaries'
investments in and advances to such Subsidiary and its Subsidiaries
exceed 10% of the consolidated total assets of the Guarantor and its
Subsidiaries taken as a whole, as of the end of the most recent fiscal
year; or
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(b) the Guarantor's and its other Subsidiaries'
proportionate interest in the total assets (after intercompany
eliminations) of such Subsidiary and its Subsidiaries exceeds 10% of
the consolidated total assets of the Guarantor and its Subsidiaries as
of the end of the most recent fiscal year; or
(c) the Guarantor's and its other Subsidiaries' equity in
the income from continuing operations before income taxes,
extraordinary items and cumulative effect of a change in accounting
principles of such Subsidiary and its Subsidiaries exceeds 10% of the
consolidated income of the Guarantor and its Subsidiaries for the most
recent fiscal year.
"MODIFICATION" has the meaning set forth in Section 2.01(a).
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc., and any
successor thereto.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, which (a) is maintained for
employees of the Borrower or an ERISA Affiliate and at least one Person
other than the Borrower and its ERISA Affiliates, or (b) was so
maintained and in respect of which the Borrower or an ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
that such plan has been or were to be terminated.
"NIPSCO" means Northern Indiana Public Service Company, an
Indiana corporation.
"NON-RECOURSE DEBT" means Indebtedness of the Guarantor or any
of its Subsidiaries which is incurred in connection with the
acquisition, construction, sale, transfer or other disposition of
specific assets, to the extent recourse, whether contractual or as a
matter of law, for non-payment of such Indebtedness is limited (a) to
such assets or (b) if such assets are (or are to be) held by a
Subsidiary formed solely for such purpose, to such Subsidiary or the
Capital Stock of such Subsidiary.
"OBLIGATIONS" means all amounts, direct or indirect,
contingent or absolute, of every type or description, and at any time
existing and whenever incurred (including, without limitation, after
the commencement of any bankruptcy proceeding), owing to the
Administrative Agent or any Lender pursuant to the terms of this
Agreement or any other Credit Document.
"OTHER TAXES" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar levies arising from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to,
this Agreement.
"PARTICIPANT" has the meaning set forth in Section 11.04.
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"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar
functions.
"PERSON" means any natural person, corporation, limited
liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of
which the Borrower or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"PRIME RATE" means the rate of interest per annum publicly
announced from time to time by Barclays as its prime rate in effect at
its principal office in New York City; each change in the Prime Rate
shall be effective from and including the date such change is publicly
announced as being effective.
"PROJECT" means an energy or power generation, transmission or
distribution facility (including, without limitation, a thermal energy
generation, transmission or distribution facility and an electric power
generation, transmission or distribution facility (including, without
limitation, a cogeneration facility)), a gas production, transportation
or distribution facility, or a minerals extraction, processing or
distribution facility, together with (a) all related electric power
transmission, fuel supply and fuel transportation facilities and power
supply, thermal energy supply, gas supply, minerals supply and fuel
contracts, (b) other facilities, services or goods that are ancillary,
incidental, necessary or reasonably related to the marketing,
development, construction, management, servicing, ownership or
operation of such facility, (c) contractual arrangements with
customers, suppliers and contractors in respect of such facility, and
(d) any infrastructure facility related to such facility, including,
without limitation, for the treatment or management of waste water or
the treatment or remediation of waste, pollution or potential
pollutants.
"PROJECT FINANCING" means Indebtedness incurred by a Project
Financing Subsidiary to finance (a) the development and operation of
the Project such Project Financing Subsidiary was formed to develop or
(b) activities incidental thereto; provided that such Indebtedness does
not include recourse to the Guarantor or any of its other Subsidiaries
other than (x) recourse to the Capital Stock in any such Project
Financing Subsidiary, and (y) recourse pursuant to a Contingent
Guaranty.
"PROJECT FINANCING SUBSIDIARY" means any Subsidiary (a) that
(i) is not a Material Subsidiary, and (ii) whose principal purpose is
to develop a Project and activities incidental thereto (including,
without limitation, the financing and operation of such Project), or to
become a partner, member or other equity participant in a partnership,
limited liability company or other entity having such a principal
purpose, and (b) substantially all the assets of which are limited to
the assets relating to the Project being developed or Capital Stock in
such partnership, limited liability company or other entity (and
substantially all of the assets of any such partnership, limited
liability
11
company or other entity are limited to the assets relating to such
Project); provided that such Subsidiary incurs no Indebtedness other
than in respect of a Project Financing.
"REGISTER" has the meaning set forth in Section 11.04.
"RELATED PARTIES" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers,
employees, agents and advisors of such Person and such Person's
Affiliates.
"REQUEST FOR MODIFICATION" has the meaning set forth in
Section 2.01.
"REQUIRED LENDERS" means Lenders having more than 50% in
aggregate amount of the Commitments, or if the Commitments shall have
been terminated, of the Total Outstanding Principal.
"RESPONSIBLE OFFICER" of a Credit Party means any of (a) the
President, the chief financial officer, the chief accounting officer
and the Treasurer of such Credit Party and (b) any other officer of
such Credit Party whose responsibilities include monitoring compliance
with this Agreement.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw Hill Companies, Inc., and any successor thereto.
"SUBSIDIARY" means, with respect to any Person, any
corporation or other entity of which at least a majority of the
outstanding shares of stock or other ownership interests having by the
terms thereof ordinary voting power to elect a majority of the board of
directors or other managers of such corporation or other entity
(irrespective of whether or not at the time stock or other equity
interests of any other class or classes of such corporation or other
entity shall have or might have voting power by reason of the happening
of any contingency) is at the time directly or indirectly owned or
controlled by such Person or one or more of the Subsidiaries of such
Person.
"SUBSTANTIAL SUBSIDIARIES" has the meaning set forth in
Section 8.01.
"TAXES" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority, including any interest, penalties and additions
to tax imposed thereon or in connection therewith.
"TERMINATION DATE" means the earliest of (a) January 7, 2009
and (b) the date upon which the Commitments are terminated pursuant to
Section 8.1 or otherwise.
"TOTAL OUTSTANDING PRINCIPAL" means the aggregate amount of
the aggregate LC Outstandings plus the aggregate Unreimbursed LC
Disbursements.
"TRANSACTIONS" means the execution, delivery and performance
by the Borrower of this Agreement and deemed issuance or Modification
of Letters of Credit hereunder.
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"UNREIMBURSED LC DISBURSEMENT" means the unpaid obligation
(or, if the context so requires, the amount of such obligation) of the
Borrower to reimburse the LC Bank for a payment made by the LC Bank
under a Letter of Credit.
"UTILITY SUBSIDIARY" means a Subsidiary of the Guarantor that
is subject to regulation by a Governmental Authority (federal, state or
otherwise) having authority to regulate utilities.
"WHOLLY-OWNED SUBSIDIARY" shall mean, with respect to any
Person, any corporation or other entity of which all of the outstanding
shares of stock or other ownership interests in which, other than
directors' qualifying shares (or the equivalent thereof), are at the
time directly or indirectly owned or controlled by such Person or one
or more of the Subsidiaries of such Person.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Sections 4201, 4203 and 4205 of
ERISA.
SECTION 1.02. TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "or" shall
not be exclusive. The word "will" shall be construed to have the same meaning
and effect as the word "shall". Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights. The terms "knowledge of", "awareness of" and "receipt of notice
of" in relation to a Credit Party, and other similar expressions, mean knowledge
of, awareness of, or receipt of notice by, a Responsible Officer of such Credit
Party.
SECTION 1.03. ACCOUNTING TERMS; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the Effective Date in GAAP or in the application thereof
on the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or
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in the application thereof, then such provision shall be interpreted on the
basis of GAAP as in effect and applied immediately before such change shall have
become effective until such notice shall have been withdrawn or such provision
amended in accordance herewith.
ARTICLE II
THE CREDITS
SECTION 2.01. LETTERS OF CREDIT
(a) LC Bank; Deemed Issuance of Letters of Credit. Subject to the
terms and conditions hereof, from and after the Effective Date each of the
letters of credit identified on Schedule 2.01 hereto and issued for the account
of the Borrower shall be deemed to be Letters of Credit issued pursuant to this
Agreement.
(b) Maximum Amount. At no time shall (i) the aggregate LC
Outstandings exceed the sum of the Commitments or (ii) the sum of the aggregate
LC Outstandings under this Agreement exceed the then effective LC Amount.
(c) Letters of Credit. The stated maturity of each Letter of
Credit shall be extended or terms thereof modified or amended (any such
extension, modification or amendment, a "MODIFICATION") on not less than five
Business Days' prior written notice thereof to the Administrative Agent (which
shall promptly distribute copies thereof to the Lenders) and the LC Bank. Each
such notice (a "REQUEST FOR MODIFICATION") shall specify (i) the date (which
shall be a Business Day) of effectiveness of such Modification and the stated
expiry date thereof (which (i) may be after the Termination Date for any Letter
of Credit provided that on or before to the 30th day prior to the Termination
Date the Borrower pays to the Administrative Agent an amount in immediately
available funds, which funds shall be held in the Cash Account, equal to the
aggregate amount of the LC Outstandings at such time plus the aggregate
Unreimbursed LC Disbursements at such time in respect of all Letters of Credit
with an expiry date on or after the fifth Business Day prior to the Termination
Date, and (ii) shall be not later than the fifth Business Day prior to the
Termination Date with respect to all other Letters of Credit), (ii) the stated
amount of such Letter of Credit and (iii) such other information as shall
demonstrate compliance of such Letter of Credit with the requirements specified
therefor in this Agreement. Each Request for Modification shall be irrevocable
unless modified or rescinded by the Borrower not less than two days prior to the
proposed date of effectiveness specified therein. If the LC Bank shall have
approved the form of such Modification of such Letter of Credit, the LC Bank
shall not later than 11:00 A.M. (New York City time) on the proposed date
specified in such Request for Modification, and upon fulfillment of the
applicable conditions precedent and the other requirements set forth herein and
as otherwise agreed to between the LC Bank and the Borrower, Modify such Letter
of Credit and provide notice and a copy thereof to the Administrative Agent. The
Administrative Agent shall furnish (x) to each Lender, a copy of such notice and
(y) to each Lender that may so request, a copy of such Letter of Credit.
(d) Reimbursement. Subject to the provisions of Section 2.01(f)
hereof, the Borrower hereby agrees to pay to the LC Bank (i) on or prior to any
LC Reimbursement Date with respect to any Letter of Credit, a sum equal to the
amount paid by the LC Bank under such Letter of Credit, which sum shall
constitute a loan from the LC Bank to the Borrower from the date of
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such payment by the LC Bank until so paid by the Borrower and which loan shall
be due on the LC Reimbursement Date, plus (ii) interest on any amount remaining
unpaid by the Borrower to the LC Bank under clause (i), above, from the date of
payment by the LC Bank until payment in full, at a rate per annum which is equal
to (x) for the period commencing on the date of such payment by the LC Bank to
and including the LC Reimbursement Date, the then applicable Alternate Base Rate
and (y) for the period thereafter until paid in full, 2% plus the then
applicable Alternate Base Rate.
(e) Loans for Unreimbursed LC Disbursements. If the LC Bank shall
make any payment under any Letter of Credit and if the conditions precedent set
forth in Section 3.02 of this Agreement have been satisfied as of the date of
such honor, then, each Lender's payment made to the LC Bank pursuant to
paragraph (f) of this Section 2.01 in respect of such Unreimbursed LC
Disbursement shall be deemed to constitute a demand loan made for the account of
the Borrower by such Lender bearing interest at a rate per annum which is equal
to 2% plus the then applicable Alternate Base Rate until paid in full. Interest
in respect of each such demand loan shall be due and payable on (i) the first
March 31, June 30, September 30 or December 31 to occur following the date such
loan is deemed made, or (ii) if earlier, the Termination Date.
(f) Participation; Reimbursement of LC Bank.
(i) Upon the deemed issuance of any Letter of Credit by
the LC Bank, the LC Bank hereby sells and transfers to each Lender, and
each Lender hereby acquires from the LC Bank, an undivided interest and
participation to the extent of such Lender's Applicable Percentage in
and to such Letter of Credit, including the obligations of the LC Bank
under and in respect thereof and the Borrower's reimbursement and other
obligations in respect thereof, whether now existing or hereafter
arising.
(ii) If the LC Bank shall not have been reimbursed in full
for any payment made by the LC Bank under any Letter of Credit on the
date of such payment, the LC Bank shall promptly notify the
Administrative Agent and the Administrative Agent shall promptly notify
each Lender of such non-reimbursement and the amount thereof. Upon
receipt of such notice from the Administrative Agent, each Lender shall
pay to the Administrative Agent for the account of the LC Bank an
amount equal to such Lender's Applicable Percentage of such
Unreimbursed LC Disbursement, plus interest on such amount at a rate
per annum equal to the Federal Funds Rate from the date of such payment
by the LC Bank to the date of payment to the LC Bank by such Lender.
All such payments by each Lender shall be made in United States dollars
and in same day funds not later than 3:00 P.M. (New York City time) on
the later to occur of (A) the Business Day immediately following the
date of such payment by the LC Bank and (B) the Business Day on which
such Lender shall have received notice of such non-reimbursement;
provided, however, that if such notice is received by such Lender later
than 11:00 A.M. (New York City time) on such Business Day, such payment
shall be payable on the next Business Day. Each Lender agrees that each
such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. If a Lender shall have paid to the LC Bank its
ratable portion of any Unreimbursed LC Disbursement, together with all
interest thereon required by the second sentence of this
15
subparagraph (ii), such Lender shall be entitled to receive its ratable
share of all interest paid by the Borrower in respect of such
Unreimbursed LC Disbursement. If such Lender shall have made such
payment to the LC Bank, but without all such interest thereon required
by the second sentence of this subparagraph (ii), such Lender shall be
entitled to receive its ratable share of the interest paid by the
Borrower in respect of such Unreimbursed LC Disbursement only from the
date it shall have paid all interest required by the second sentence of
this subparagraph (ii).
(iii) The failure of any Lender to make any payment to the
LC Bank in accordance with subparagraph (ii) above, shall not relieve
any other Lender of its obligation to make payment, but neither the LC
Bank nor any Lender shall be responsible for the failure of any other
Lender to make such payment. If any Lender shall fail to make any
payment to the LC Bank in accordance with subparagraph (ii) above, then
such Lender shall pay to the LC Bank forthwith on demand such
corresponding amount together with interest thereon, for each day until
the date such amount is repaid to the LC Bank at the Federal Funds
Rate. Nothing herein shall in any way limit, waive or otherwise reduce
any claims that any party hereto may have against any non-performing
Lender.
(iv) If any Lender shall fail to make any payment to the
LC Bank in accordance with subparagraph (ii), above, then, in addition
to other rights and remedies which the LC Bank may have, the
Administrative Agent is hereby authorized, at the request of the LC
Bank, to withhold and to apply to the payment of such amounts owing by
such Lender to the LC Bank and any related interest, that portion of
any payment received by the Administrative Agent that would otherwise
be payable to such Lender. In furtherance of the foregoing, if any
Lender shall fail to make any payment to the LC Bank in accordance with
subparagraph (ii), above, and such failure shall continue for five
Business Days following written notice of such failure from the LC Bank
to such Lender, the LC Bank may acquire, or transfer to a third party
in exchange for the sum or sums due from such Lender, such Lender's
interest in the related Unreimbursed LC Disbursement and all other
rights of such Lender hereunder in respect thereof, without, however,
relieving such Lender from any liability for damages, costs and
expenses suffered by the LC Bank as a result of such failure, and prior
to such transfer, the LC Bank shall be deemed, for purposes of Section
2.09 and Article VIII hereof, to be a Lender hereunder owed a loan in
an amount equal to the outstanding principal amount due and payable by
such Lender to the Administrative Agent for the account of such LC Bank
pursuant to subparagraph (ii), above. The purchaser of any such
interest shall be deemed to have acquired an interest senior to the
interest of such Lender and shall be entitled to receive all subsequent
payments which the LC Bank or the Administrative Agent would otherwise
have made hereunder to such Lender in respect of such interest.
(g) Obligations Absolute. The payment obligations of each Lender
under Section 2.01(f) and of the Borrower under Section 2.01(d) of this
Agreement in respect of any payment under any Letter of Credit and any loan made
under Section 2.01(e) shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including, without limitation, the following circumstances:
16
(i) any lack of validity or enforceability of any Credit
Document or any other agreement or instrument relating thereto or to
such Letter of Credit;
(ii) any amendment or waiver of, or any consent to
departure from, all or any of the Credit Documents;
(iii) the existence of any claim, set-off, defense or other
right which the Borrower may have at any time against any beneficiary,
or any transferee, of such Letter of Credit (or any Persons for whom
any such beneficiary or any such transferee may be acting), the LC
Bank, or any other Person, whether in connection with this Agreement,
the transactions contemplated herein or by such Letter of Credit, or
any unrelated transaction;
(iv) any statement or any other document presented under
such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(v) payment in good faith by the LC Bank under the Letter
of Credit issued by the LC Bank against presentation of a draft or
certificate which does not comply with the terms of such Letter of
Credit; or
(vi) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing.
(h) Liability of LC Bank and the Lenders. The Borrower assumes all
risks of the acts and omissions of any beneficiary or transferee of any Letter
of Credit. Neither the LC Bank, the Lenders nor any of their respective
officers, directors, employees, agents or Affiliates shall be liable or
responsible for (i) the use that may be made of such Letter of Credit or any
acts or omissions of any beneficiary or transferee thereof in connection
therewith; (ii) the validity, sufficiency or genuineness of documents, or of any
endorsement thereon, even if such documents should prove to be in any or all
respects invalid, insufficient, fraudulent or forged; (iii) payment by the LC
Bank against presentation of documents that do not comply with the terms of such
Letter of Credit, including failure of any documents to bear any reference or
adequate reference to such Letter of Credit; or (iv) any other circumstances
whatsoever in making or failing to make payment under such Letter of Credit,
except that the Borrower or any Lender shall have the right to bring suit
against the LC Bank, and the LC Bank shall be liable to the Borrower and any
Lender, to the extent of any direct, as opposed to consequential, damages
suffered by the Borrower or such Lender which the Borrower or such Lender proves
were caused by the LC Bank's wilful misconduct or gross negligence, including
the LC Bank's wilful or grossly negligent failure to make timely payment under
such Letter of Credit following the presentation to it by the beneficiary
thereof of a draft and accompanying certificate(s) which strictly comply with
the terms and conditions of such Letter of Credit. In furtherance and not in
limitation of the foregoing, the LC Bank may accept sight drafts and
accompanying certificates presented under the Letter of Credit issued by the LC
Bank that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary.
Notwithstanding the foregoing, no Lender shall be obligated to indemnify the
Borrower for damages caused by the LC Bank's wilful misconduct or gross
negligence, and the obligation of
17
the Borrower to reimburse the Lenders hereunder shall be absolute and
unconditional, notwithstanding the gross negligence or wilful misconduct of the
LC Bank.
SECTION 2.02. MANDATORY TERMINATION OR REDUCTION OF COMMITMENTS.
(a) Unless previously terminated, the Commitments shall terminate
on the Termination Date.
SECTION 2.03. CASH COLLATERALIZATION.
(a) If at any time the Total Outstanding Principal exceeds the
lesser of the Aggregate Commitments or the LC Amount then in effect for any
reason whatsoever (including, without limitation, as a result of any reduction
in the Aggregate Commitments pursuant to Section 2.04), the Borrower shall
deposit with the Administrative Agent an amount in the Cash Account equal to
such excess. If any drawings then outstanding or thereafter made are not
reimbursed in full immediately upon demand or, in the case of subsequent
drawings, upon being made, then, in any such event, the Administrative Agent may
apply the amounts then on deposit in the Cash Account, in such priority as the
Administrative Agent shall elect, toward the payment in full of any or all of
the Borrower's obligations hereunder as and when such obligations shall become
due and payable.
SECTION 2.04. REDUCTION OF COMMITMENTS.
(a) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $10,000,000 and (ii) the
Borrower shall not terminate or reduce the Commitments if the Total Outstanding
Principal would exceed the Aggregate Commitments thereafter in effect.
(b) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under Section 2.04(a) at least
five Business Days prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly following
receipt of any notice, the Administrative Agent shall advise the Lenders of the
contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Commitments
delivered by the Borrower may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be
revoked by the Borrower (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied. Any
termination or reduction of the Commitments shall be permanent.
(c) Concurrently with any reduction in the LC Amount as set forth
on Schedule 1.01.2, the Aggregate Commitments shall be automatically reduced by
an equal amount.
(d) Each reduction of the Commitments pursuant to this Section
2.04 shall be made ratably among the Lenders in accordance with their respective
Commitments immediately preceding such reduction.
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SECTION 2.05. EVIDENCE OF DEBT.
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender arising hereunder.
(b) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Letter of Credit deemed to be issued
hereunder, (ii) the amount of any principal, interest or fees due and payable or
to become due and payable from the Borrower to the each Lender hereunder, and
(iii) the amount of any sum received by the Administrative Agent hereunder for
the account of the Lenders and each Lender's share thereof.
(c) The entries made in the accounts maintained pursuant to
paragraph (a) or (b) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Obligations in accordance with the terms of this Agreement.
SECTION 2.06. FEES.
(a) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a letter of credit risk participation fee (each a "LC
RISK PARTICIPATION FEE"), which shall accrue at the Applicable Rate on the
average daily amount of the LC Outstandings during the period from and including
the Effective Date to but excluding the Termination Date or such later date as
on which there shall cease to be any LC Outstandings. Accrued LC Risk
Participation Fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the Commitments
terminate, commencing on the first such date to occur after the Effective Date;
provided that any LC Risk Participation Fees accruing after the date on which
the Commitments terminate shall be payable on demand. All LC Risk Participation
Fees shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding the
last day). The Borrower shall also pay to the LC Bank for its own account all
documentary and processing charges in connection with the Modification,
cancellation, negotiation, or transfer of, and draws under Letters of Credit in
accordance with the LC Bank's standard schedule for such charges as in effect
from time to time.
(b) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (for distribution, in
the case of LC Risk Participation Fees to the Lenders). Fees due and paid shall
not be refundable under any circumstances.
SECTION 2.07. INCREASED COSTS. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of, deposits with
or for the account of, or credit extended by, any Lender or the LC Bank
(except any such reserve requirement described in paragraph (e) of this
Section); or
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(ii) impose on any Lender or the LC Bank or the London
interbank market any other condition affecting this Agreement or
Unreimbursed LC Disbursements or Letters of Credit and participations
therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender or the LC Bank of making or maintaining any Unreimbursed LC Disbursement
or issuing or maintaining Letters of Credit and participation interests therein
(or of maintaining its obligation to issue or participate in such Letter of
Credit) or to reduce the amount of any sum received or receivable by such Lender
or the LC Bank hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the LC Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the LC Bank for
such additional costs incurred or reduction suffered.
(b) If any Lender or the LC Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the LC Bank's capital or on the capital of its
holding company, if any, as a consequence of this Agreement to a level below
that which such Lender or the LC Bank or its holding company could have achieved
but for such Change in Law (taking into consideration its policies and the
policies of its holding company with respect to capital adequacy), then from
time to time the Borrower will pay to such Lender or the LC Bank, as the case
may be, such additional amount or amounts as will compensate it or its holding
company for any such reduction suffered.
(c) A certificate of a Lender or the LC Bank, as the case may be,
setting forth the amount or amounts necessary to compensate it or its holding
company as specified in paragraph (a) or (b) of this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender or the LC Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
its right to demand such compensation; provided that the Borrower shall not be
required to compensate a Lender pursuant to this Section for any increased costs
or reductions incurred more than ninety days prior to the date that such Lender
or the LC Bank notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of its intention to claim compensation
therefor; provided, further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the ninety day period
referred to above shall be extended to include the period of retroactive effect
thereof.
SECTION 2.08. TAXES.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if any Credit Party shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent, LC Bank or Lender (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made,
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(ii) such Credit Party shall make such deductions and (iii) such Credit Party
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, the LC
Bank and each Lender, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes (and for any Taxes imposed or
asserted on or attributable to amounts payable under this Section) paid by the
Administrative Agent, the LC Bank or such Lender, as the case may be, and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or the LC Bank, or by the Administrative Agent on its own
behalf or on behalf of a Lender or the LC Bank, shall be conclusive absent
manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by a Credit Party to a Governmental Authority, such Credit Party
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the laws of the jurisdiction in which the
Borrower or the Guarantor is located, or any treaty to which such jurisdiction
is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with an additional original or a photocopy, as required under
applicable rules and procedures, to the Administrative Agent), at the time or
times prescribed by applicable law or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by applicable law as
shall be necessary to permit such payments to be made without withholding or at
a reduced rate. Further, in those circumstances as shall be necessary to allow
payments hereunder to be made free of (or at a reduced rate of) withholding tax,
each other Lender and the Administrative Agent, as applicable, shall deliver to
Borrower such documentation as the Borrower may reasonably request in writing.
(f) Except with the prior written consent of the Administrative
Agent, all amounts payable by a Credit Party hereunder shall be made by such
Credit Party in its own name and for its own account from within the United
States by a payor that is a United States person (within the meaning of Section
7701 of the Code).
SECTION 2.09. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS.
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest or fees, or under Section 2.07, 2.08
or 11.03, or otherwise) prior to 12:00 noon, New York City time, on the date
when due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business
21
Day for purposes of calculating interest thereon. All such payments shall be
made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, except that payments pursuant to Sections 2.07, 2.08 and 11.03 shall
be made directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (i) first, to
pay interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, to pay principal then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal then due to
such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of the Obligations owing to it resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of such
Obligations and accrued interest thereon than the proportion received by any
other Lender, then the Lender receiving such greater proportion shall purchase
(for cash at face value) participations in the Exposure of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Exposure; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Exposure to any assignee
or participant, other than to the Guarantor, the Borrower or any other
Subsidiary or Affiliate of the Guarantor (as to which the provisions of this
paragraph shall apply). The Borrower and the Guarantor consent to the foregoing
and agree, to the extent they may effectively do so under applicable law, that
any Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower and the Guarantors rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower or the affected Guarantor in the amount of
such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the Borrower
will not make such payment, the Administrative Agent may assume that the
Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders the amount due. In such
event, if the Borrower has not in fact made such payment, then each of the
Lenders severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender with
22
interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.01(f), or 2.09(d), then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender's obligations under such Sections
until all such unsatisfied obligations are fully paid.
SECTION 2.10. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS. (a) Any
Lender claiming reimbursement or compensation from the Borrower under either of
Sections 2.07 and 2.08 for any losses, costs or other liabilities shall use
reasonable efforts (including, without limitation, reasonable efforts to
designate a different lending office of such Lender for funding or booking its
Obligations or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates) to mitigate the amount of such losses, costs
and other liabilities, if such efforts can be made and such mitigation can be
accomplished without such Lender suffering (i) any economic disadvantage for
which such Lender does not receive full indemnity from the Borrower under this
Agreement or (ii) otherwise be disadvantageous to such Lender.
(b) In determining the amount of any claim for reimbursement or
compensation under Sections 2.07 and 2.08, each Lender will use reasonable
methods of calculation consistent with such methods customarily employed by such
Lender in similar situations.
(c) Each Lender will notify the Borrower either directly or
through the Administrative Agent of any event giving rise to a claim under
Section 2.07 or Section 2.08 promptly after the occurrence thereof which notice
shall be accompanied by a certificate of such Lender setting forth in reasonable
detail the circumstances of such claim.
(d) If any Lender requests compensation under Section 2.07, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.08,
then the Borrower may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained
in Section 11.04), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided that (i) the
Borrower shall have received the prior written consent of the Administrative
Agent and the LC Bank, which consent, in the case of the Administrative Agent,
shall not unreasonably be withheld and, in the case of the LC Bank, may be given
or withheld in the sole discretion of the LC Bank, (ii) such Lender shall have
received payment of all amounts payable to it hereunder, from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation under Section 2.07 or
payments required to be made pursuant to Section 2.08, such assignment will
result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
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ARTICLE III
CONDITIONS
SECTION 3.01. CONDITIONS PRECEDENT TO THE INITIAL EXTENSION OF CREDIT.
The obligation of each Lender to make the Initial Extension of Credit shall not
become effective until the date on which each of the following conditions, and
each of the conditions set forth in Section 3.02, is satisfied (or waived in
accordance with Section 11.02); provided that each of the conditions set forth
in this Section 3.01 shall be satisfied or waived no later than the Initial
Credit Event Date.
(a) The Administrative Agent (or its counsel) shall have received
from each party thereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature page of
this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received certified copies
of the resolutions of the Board of Directors of each of the Guarantor and the
Borrower approving this Agreement, and of all documents evidencing other
necessary corporate action and governmental and regulatory approvals with
respect to this Agreement.
(c) The Administrative Agent shall have received from each of the
Borrower and the Guarantor, to the extent generally available in the relevant
jurisdiction, a copy of a certificate or certificates of the Secretary of State
(or other appropriate public official) of the jurisdiction of its incorporation,
dated reasonably near the Initial Credit Event Date, (i) listing the charters of
the Borrower or the Guarantor, as the case may be, and each amendment thereto on
file in such office and certifying that such amendments are the only amendments
to the Borrower's or the Guarantor's charter, as the case may be, on file in
such office, and (ii) stating that the Borrower, or the Guarantor, as the case
may be, is duly incorporated and in good standing under the laws of the
jurisdiction of its place of incorporation.
(d) (i) The Administrative Agent shall have received a certificate
or certificates of each of the Borrower and the Guarantor, signed on behalf of
the Borrower and the Guarantor respectively, by a the Secretary, an Assistant
Secretary or a Responsible Officer thereof, dated the Initial Credit Event Date,
certifying as to (A) the absence of any amendments to the charter of the
Borrower or the Guarantor, as the case may be, since the date of the
certificates referred to in paragraph (d) above, (B) a true and correct copy of
the bylaws of each of the Borrower or the Guarantor, as the case may be, as in
effect on the Initial Credit Event Date, (C) the absence of any proceeding for
the dissolution or liquidation of the Borrower or the Guarantor, as the case may
be, (D) the truth, in all material respects, of the representations and
warranties contained in the Credit Documents to which the Borrower or the
Guarantor is a party, as the case may be, as though made on and as of the
Initial Credit Event Date, and (E) the absence, as of the Initial Credit Event
Date, of any Default or Event of Default; and (ii) each of such certifications
shall be true.
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(e) The Administrative Agent shall have received a certificate of
the Secretary or an Assistant Secretary of each of the Guarantor and the
Borrower certifying the names and true signatures of the officers of Guarantor
or the Borrower, as the case may be, authorized to sign, and signing, this
Agreement and the other Credit Documents to be delivered hereunder on or before
the Initial Credit Event Date.
(f) The Administrative Agent shall have received from ▇▇▇▇▇▇
▇▇▇▇▇▇ LLP, counsel for the Guarantor and the Borrower, a favorable opinion,
substantially in the form of Exhibit B hereto and as to such other matters as
any Lender through the Administrative Agent may reasonably request.
SECTION 3.02. CONDITIONS PRECEDENT TO EACH EXTENSION OF CREDIT. The
obligation of the LC Bank to make any Extension of Credit (including the initial
Extension of Credit) shall be subject to the satisfaction (or waiver in
accordance with Section 11.02) of each of the following conditions:
(a) The representations and warranties of the Guarantor and the
Borrower set forth in this Agreement shall be true and correct in all material
respects on and as of the date of such Extension of Credit, except to the extent
that such representations and warranties are specifically limited to a prior
date, in which case such representations and warranties shall be true and
correct in all material respects on and as of such prior date.
(b) After giving effect to such Extension of Credit, together with
all other Extensions of Credit to be made contemporaneously therewith, such
Extension of Credit will not result in the sum of the then Total Outstanding
Principal exceeding the Aggregate Commitments.
(c) Such Extension of Credit will comply with all other applicable
requirements of Article II, including without limitation Sections 2.01.
(d) At the time of and immediately after giving effect to such
Extension of Credit, no Default or Event of Default shall have occurred and be
continuing.
(e) In the case of a Letter of Credit's Modification, a Request
for Modification.
Each Extension of Credit and the acceptance by the Borrower of the benefits
thereof shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a), (b),
(c) and (d) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES.
Each of the Borrower and the Guarantors represents and warrants as follows:
(a) Each of the Borrower and the Guarantor is a corporation duly
organized, validly existing and in good standing under the laws of the State of
its incorporation.
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(b) The execution, delivery and performance by each of the Credit
Parties of the Credit Documents to which it is a party are within such Credit
Party's corporate powers, (i) have been duly authorized by all necessary
corporate action, (ii) do not contravene (A) such Credit Party's charter or
by-laws, as the case may be, or (B) any law, rule or regulation (including,
without limitation, the Public Utility Holding Company Act of 1935, as amended),
or any material Contractual Obligation or legal restriction, binding on or
affecting any Credit Party or any Material Subsidiary, as the case may be, and
(iii) do not require the creation of any Lien on the property of any Credit
Party or any Material Subsidiary under any Contractual Obligation binding on or
affecting such Credit Party or any Material Subsidiary.
(c) No authorization or approval or other action by, and no notice
to or filing with, any Governmental Authority or other Person is required for
the due execution, delivery and performance by any Credit Party of this
Agreement or any other Credit Document to which any of them is a party, except
for such as have been obtained or made and that are in full force and effect.
(d) Each Credit Document to which any Credit Party is a party is a
legal, valid and binding obligation of such Credit Party, enforceable against
such Credit Party in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
(e) The consolidated balance sheet of the Guarantor and its
Subsidiaries as at September 30, 2003, and the related statements of income and
retained earnings of the Guarantor and its Subsidiaries for the nine months then
ended, copies of which have been made available or furnished to each Lender,
fairly present (subject to year-end adjustments) the financial condition of the
Guarantor and its Subsidiaries as at such date and the results of the operations
of the Guarantor and its Subsidiaries for the period ended on such date, all in
accordance with generally accepted accounting principles consistently applied.
(f) Since December 31, 2002, there has been no material adverse
change in such condition or operations, or in the business, assets, operations,
condition (financial or otherwise) or prospects of any of the Credit Parties or
of Columbia.
(g) There is no pending or threatened action or proceeding
affecting such Credit Party before any court, governmental agency or other
Governmental Authority or arbitrator that (taking into account the exhaustion of
appeals) would have a Material Adverse Effect, or that (i) purports to affect
the legality, validity or enforceability of this Agreement, or (ii) seeks to
prohibit the ownership or operation, by any Credit Party or any of their
respective Subsidiaries, of all or a material portion of their respective
businesses or assets.
(h) The Guarantor and its Subsidiaries, taken as a whole, do not
hold or carry Margin Stock having an aggregate value in excess of 10% of the
value of their consolidated assets, and no part of the proceeds of any Extension
of Credit hereunder will be used to buy or carry any Margin Stock.
26
(i) No ERISA Event has occurred, or is reasonably expected to
occur, with respect to any Plan that could reasonably be expected to have a
Material Adverse Effect.
(j) Schedule B (Actuarial Information) to the 2002 Annual report
(Form 5500 Series) for each Plan, copies of which have been filed with the
Internal Revenue Service and made available or furnished to each Lender, is
complete and accurate and fairly presents the funding status of such Plan, and
since the date of such Schedule B there has been no adverse change in such
funding status which may reasonably be expected to have a Material Adverse
Effect.
(k) Neither the Guarantor nor any ERISA Affiliate has incurred or
is reasonably expected to incur any Withdrawal Liability to any Multiemployer
Plan which may reasonably be expected to have a Material Adverse Effect.
(l) Neither the Guarantor nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or has been terminated, within the meaning of Title VI of
ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization
or to be terminated, within the meaning of Title IV of ERISA, in either such
case, that could reasonably be expected to have a Material Adverse Effect.
(m) No Credit Party is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended.
(n) The Guarantor is a "public utility holding company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended,
registered in compliance therewith.
(o) Each Credit Party has filed all tax returns (Federal, state
and local) required to be filed by it and has paid or caused to be paid all
taxes due for the periods covered thereby, including interest and penalties,
except for any such taxes, interest or penalties which are being contested in
good faith and by proper proceedings and in respect of which such Credit Party
has set aside adequate reserves for the payment thereof in accordance with GAAP.
(p) Each Credit Party and its Subsidiaries are and have been in
compliance with all laws (including, without limitation, the Public Utility
Holding Company Act of 1935, as amended, and all Environmental Laws), except to
the extent that any failure to be in compliance, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(q) No Subsidiary of any Credit Party is party to, or otherwise
bound by, any agreement that prohibits such Subsidiary from making any payments,
directly or indirectly, to such Credit Party, by way of dividends, advances,
repayment of loans or advances, reimbursements of management or other
intercompany charges, expenses and accruals or other returns on investment, or
any other agreement that restricts the ability of such Subsidiary to make any
payment, directly or indirectly, to such Credit Party, other than prohibitions
and restrictions permitted to exist under Section 6.01(e).
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ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any Lender shall have
any Commitment hereunder or any Letter of Credit shall remain outstanding, each
of the Credit Parties will, unless the Required Lenders shall otherwise consent
in writing:
(a) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Subsidiaries to comply, in all material respects with all applicable laws,
rules, regulations and orders (including, without limitation, any of the
foregoing relating to employee health and safety or public utilities and all
Environmental Laws), unless the failure to so comply could not reasonably be
expected to have a Material Adverse Effect.
(b) MAINTENANCE OF PROPERTIES, ETC. Maintain and preserve, and
cause each Material Subsidiary to maintain and preserve, all of its material
properties which are used in the conduct of its business in good working order
and condition, ordinary wear and tear excepted, if the failure to do so could
reasonably be expected to have a Material Adverse Effect.
(c) PAYMENT OF TAXES, ETC. Pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon it or
upon its property, and (ii) all legal claims which, if unpaid, might by law
become a lien upon its property; provided, however, that neither any Credit
Party nor any of its Subsidiaries shall be required to pay or discharge any such
tax, assessment, charge or claim which is being contested in good faith and by
proper proceedings and as to which appropriate reserves are being maintained.
(d) MAINTENANCE OF INSURANCE. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
obtained by companies engaged in similar businesses of comparable size and
financial strength and owning similar properties in the same general areas in
which such Credit Party or such Subsidiary operates, or to the extent such
Credit Party or Subsidiary deems it reasonably prudent to do so, through its own
program of self-insurance.
(e) PRESERVATION OF CORPORATE EXISTENCE, ETC. Preserve and
maintain, and cause each Material Subsidiary to preserve and maintain, its
corporate existence, rights (charter and statutory) and franchises, except as
otherwise permitted under this Agreement; provided that that no such Person
shall be required to preserve any right or franchise with respect to which the
Board of Directors of such Person has determined that the preservation thereof
is no longer desirable in the conduct of the business of such Person and that
the loss thereof is not disadvantageous in any material respect to such Person
or the Lenders.
(f) VISITATION RIGHTS. At any reasonable time and from time to
time, permit the Administrative Agent or any of the Lenders or any agents or
representatives thereof, on not less than five Business Days' notice, to examine
and make copies of and abstracts from the records and books of account of, and
visit the properties of, such Credit Party or any of its Subsidiaries, and to
discuss the affairs, finances and accounts of the Credit Parties and their
respective
28
Subsidiaries with any of their respective officers and with their independent
certified public accountants; subject, however, in all cases to the imposition
of such conditions as the affected Credit Party or Subsidiary shall deem
necessary based on reasonable considerations of safety and security and provided
that so long as no Default or Event of Default shall have occurred and be
continuing, each Lender will be limited to one visit each year.
(g) KEEPING OF BOOKS. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of each
of the Credit Parties and each of their respective Subsidiaries in accordance
with generally accepted accounting principles consistently applied.
(h) REPORTING REQUIREMENTS. Deliver to the Administrative Agent
for distribution to the Lenders:
(i) as soon as available and in any event within 60 days
after the end of each of the first three quarters of each fiscal year
of the Guarantor (or, if earlier, concurrently with the filing thereof
with the Securities and Exchange Commission or any national securities
exchange in accordance with applicable law or regulation), balance
sheets of the Guarantor and its Consolidated Subsidiaries in
comparative form as of the end of such quarter and statements of income
and retained earnings of the Guarantor and its Consolidated
Subsidiaries for the period commencing at the end of the previous
fiscal year of the Guarantor and ending with the end of such quarter,
certified by the chief financial officer of the Guarantor.
(ii) as soon as available and in any event within 90 days
after the end of each fiscal year of the Guarantor (or, if earlier,
concurrently with the filing thereof with the Securities and Exchange
Commission or any national securities exchange in accordance with
applicable law or regulation), a copy of the audit report for such year
for the Guarantor and its Consolidated Subsidiaries containing
financial statements for such year as reported on by independent
certified public accountants of recognized national standing acceptable
to the Required Lenders, which audit was conducted by such accounting
firm in accordance with generally accepted auditing standards;
(iii) concurrently with the delivery of financial
statements pursuant to clauses (i) and (ii) above or the notice
relating thereto contemplated by the final sentence of this Section
5.01(h), a certificate of a senior financial officer of each of the
Guarantor and the Borrower (A) to the effect that no Default or Event
of Default has occurred and is continuing (or, if any Default or Event
of Default has occurred and is continuing, describing the same in
reasonable detail and describing the action that the Guarantor or the
Borrower, as the case may be, has taken and proposes to take with
respect thereto), and (B) in the case of the certificate relating to
the Guarantor, setting forth calculations, in reasonable detail,
establishing Borrower's compliance, as at the end of such fiscal
quarter, with the financial covenants contained in Article VII;
(iv) as soon as possible and in any event within five days
after the occurrence of each Default or Event of Default continuing on
the date of such statement, a statement of the chief financial officer
of the Borrower setting forth details of such Event of Default
29
or event and the action which the Borrower has taken and proposes to
take with respect thereto;
(v) promptly after the sending or filing thereof, copies
of all reports which the Guarantor sends to its stockholders, and
copies of all reports and registration statements (other than
registration statements filed on Form S-8 and filings under the Public
Utilities Holding Company Act of 1935, as amended) that the Guarantor,
the Borrower or any Subsidiary of the Guarantor or the Borrower, files
with the Securities and Exchange Commission or any national securities
exchange;
(vi) promptly and in any event within 30 days after the
filing thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (Form 5500
Series) with respect to each Plan;
(vii) promptly and in any event within 10 days after the
Guarantor knows or has reason to know that any material ERISA Event has
occurred, a statement of the chief financial officer of the Borrower
describing such ERISA Event and the action, if any, which the Guarantor
or any affected ERISA Affiliate proposes to take with respect thereto;
(viii) promptly and in any event within two Business Days
after receipt thereof by the Guarantor (or knowledge being obtained by
the Guarantor of the receipt thereof by any ERISA Affiliate), copies of
each notice from the PBGC stating its intention to terminate any Plan
or to have a trustee appointed to administer any Plan;
(ix) promptly and in any event within five Business Days
after receipt thereof by the Guarantor (or knowledge being obtained by
the Guarantor of the receipt thereof by any ERISA Affiliate) from the
sponsor of a Multiemployer Plan, a copy of each notice received by the
Guarantor or any ERISA Affiliate concerning (A) the imposition of
material Withdrawal Liability by a Multiemployer Plan, (B) the
reorganization or termination, within the meaning of Title IV of ERISA,
of any Multiemployer Plan or (C) the amount of liability incurred, or
which may be incurred, by the Guarantor or any ERISA Affiliate in
connection with any event described in clause (A) or (B) above;
(x) promptly after the Guarantor has knowledge of the
commencement thereof, notice of any actions, suits and proceedings
before any court or governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, affecting the Guarantor
or any Material Subsidiary of the type described in Section 4.01(g);
(xi) promptly after the Guarantor or the Borrower knows of
any change in the rating of the Index Debt by S&P or ▇▇▇▇▇'▇, a notice
of such changed rating; and
(xii) such other information respecting the condition or
operations, financial or otherwise, of the Guarantor or any of its
Subsidiaries as any Lender through the Administrative Agent may from
time to time reasonably request.
30
Notwithstanding the foregoing, the Credit Parties' obligations to deliver the
documents or information required under any of clauses (i), (ii) and (v) above
shall be deemed to be satisfied upon (x) the relevant documents or information
being publicly available on the Guarantor's website or other publicly available
electronic medium (such as ▇▇▇▇▇) within the time period required by such
clause, and (y) the delivery by the Guarantor or the Borrower of notice to the
Administrative Agent and the Lenders, within the time period required by such
clause, that such documents or information are so available.
(i) USE OF PROCEEDS. Use the proceeds of the Letters of Credit
hereunder for working capital and other general corporate purposes.
(j) RATINGS. At all times maintain ratings by both ▇▇▇▇▇'▇ and S&P
with respect to the Index Debt.
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. NEGATIVE COVENANTS. So long as any Lender shall have any
Commitment hereunder or any principal of any Letter of Credit shall remain
outstanding, no Credit Party will, without the written consent of the Required
Lenders:
(a) LIMITATION ON LIENS. Create or suffer to exist, or permit any
of its Subsidiaries (other than a Utility Subsidiary) to create or suffer to
exist, any lien, security interest, or other charge or encumbrance
(collectively, "LIENS") upon or with respect to any of its properties, whether
now owned or hereafter acquired, or collaterally assign for security purposes,
or permit any of its Subsidiaries (other than a Utility Subsidiary) to so assign
any right to receive income in each case to secure or provide for or guarantee
the payment of Debt for Borrowed Money of any Person, without in any such case
effectively securing, prior to or concurrently with the creation, issuance,
assumption or guaranty of any such Debt for Borrowed Money, the Obligations
(together with, if the Guarantor shall so determine, any other Debt for Borrowed
Money of or guaranteed by the Guarantor or any of its Subsidiaries ranking
equally with the Obligations and then existing or thereafter created) equally
and ratably with (or prior to) such Debt for Borrowed Money; provided, however,
that the foregoing restrictions shall not apply to or prevent the creation or
existence of:
(i) (A) Liens on any property acquired, constructed or
improved by the Guarantor or any of its Subsidiaries (other than a
Utility Subsidiary) after the date of this Agreement that are created
or assumed prior to, contemporaneously with, or within 180 days after,
such acquisition or completion of such construction or improvement, to
secure or provide for the payment of all or any part of the purchase
price of such property or the cost of such construction or improvement;
or (B) in addition to Liens contemplated by clauses (ii) and (iii)
below, Liens on any property existing at the time of acquisition
thereof, provided that the Liens shall not apply to any property
theretofore owned by the Guarantor or any such Subsidiary other than,
in the case of any such construction or improvement, (1) unimproved
real property on which the property so constructed or the improvement
is located, (2) other property (or improvements thereon) that is an
improvement to or is acquired or constructed for specific use with such
acquired or
31
constructed property (or improvement thereof), and (3) any rights and
interests (A) under any agreements or other documents relating to, or
(B) appurtenant to, the property being so constructed or improved or
such other property;
(ii) existing Liens on any property or indebtedness of a
corporation that is merged with or into or consolidated with any Credit
Party or any of its Subsidiaries; provided that such Lien was not
created in contemplation of such merger or consolidation;
(iii) Liens on any property or indebtedness of a
corporation existing at the time such corporation becomes a Subsidiary
of any Credit Party; provided that such Lien was not created in
contemplation of such occurrence;
(iv) Liens to secure Debt for Borrowed Money of a
Subsidiary of a Credit Party to a Credit Party or to another Subsidiary
of the Guarantor;
(v) Liens in favor of the United States of America, any
State, any foreign country or any department, agency or instrumentality
or political subdivision of any such jurisdiction, to secure partial,
progress, advance or other payments pursuant to any contract or statute
or to secure any Debt for Borrowed Money incurred for the purpose of
financing all or any part of the purchase price of the cost of
constructing or improving the property subject to such Liens,
including, without limitation, Liens to secure Debt for Borrowed Money
of the pollution control or industrial revenue bond type;
(vi) Liens on any property (including any natural gas, oil
or other mineral property) to secure all or part of the cost of
exploration, drilling or development thereof or to secure Debt for
Borrowed Money incurred to provide funds for any such purpose;
(vii) Liens existing on the date of this Agreement;
(viii) Liens for the sole purposes of extending, renewing or
replacing in whole or in part Debt for Borrowed Money secured by any
Lien referred to in the foregoing clauses (i) through (vii), inclusive,
or this clause (viii); provided, however, that the principal amount of
Debt for Borrowed Money secured thereby shall not exceed the principal
amount of Debt for Borrowed Money so secured at the time of such
extension, renewal or replacement (which, for purposes of this
limitation as it applies to a synthetic lease, shall be deemed to be
(x) the lessor's original cost of the property subject to such lease at
the time of extension, renewal or replacement, less (y) the aggregate
amount of all prior payments under such lease allocated pursuant to the
terms of such lease to reduce the principal amount of the lessor's
investment, and borrowings by the lessor, made to fund the original
cost of the property), and that such extension, renewal or replacement
shall be limited to all or a part of the property or indebtedness which
secured the Lien so extended, renewed or replaced (plus improvements on
such property);
(ix) Liens on any property or assets of a Project
Financing Subsidiary, or on any Capital Stock in a Project Financing
Subsidiary, in either such case, that secure only a Project Financing
or a Contingent Guaranty that supports a Project Financing; or
32
(x) Any Lien, other than a Lien described in any of the
foregoing clauses (i) through (ix), inclusive, to the extent that it
secures Debt for Borrowed Money, or guaranties thereof, the outstanding
principal balance of which at the time of creation of such Lien, when
added to the aggregate principal balance of all Debt for Borrowed Money
secured by Liens incurred under this clause (x) then outstanding, does
not exceed 5% of Consolidated Net Tangible Assets.
If at any time any Credit Party or any of its Subsidiaries shall
create, issue, assume or guaranty any Debt for Borrowed Money secured by any
Lien and the first paragraph of this Section 6.01(a) requires that the
Obligations be secured equally and ratably with such Debt for Borrowed Money,
the Borrower shall promptly deliver to the Administrative Agent and each Lender:
(1) a certificate of a duly authorized officer of the
Borrower stating that the covenant contained in the first paragraph of
this Section 6.01(a) has been complied with; and
(2) an opinion of counsel acceptable to the Required
Lenders to the effect that such covenant has been complied with and
that all documents executed by any Credit Party or any of its
Subsidiaries in the performance of such covenant comply with the
requirements of such covenant.
(b) MERGERS, ETC. Merge or consolidate with or into, or, except in
a transaction permitted under paragraph (c) of this Section, convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to any Person, or permit any of its Subsidiaries to do so,
except that:
(i) any Subsidiary of the Guarantor may merge or
consolidate with or transfer assets to or acquire assets from any other
Subsidiary of the Guarantor; and
(ii) any Subsidiary of the Guarantor may merge into or
transfer assets to the Borrower; and
(iii) the Guarantor or any Subsidiary of the Guarantor may
merge, or consolidate with or transfer all or substantially all of its
assets to any other Person; provided that in each case, immediately
after giving effect thereto, (A) no Event of Default shall have
occurred and be continuing (determined, for purposes of compliance with
Section 7.01 after giving effect to such transaction, on a pro forma
basis for the period of four consecutive fiscal quarters of the
Guarantor then most recently ended, as if such transaction had occurred
on the first day of such period, and, for purposes of compliance with
Section 7.02 after giving effect to such transaction, on a pro forma
basis as if such transaction had occurred on the last day of the
Guarantor's fiscal quarter then most recently ended); (B) in the case
of any merger, consolidation or transfer of assets to which the
Borrower is a party (other than a merger, consolidation or transfer of
assets between the Borrower and the Guarantor), the Borrower shall be
the continuing or surviving corporation; (C) in the case of any merger,
consolidation or transfer of assets
33
between the Borrower and the Guarantor, the Guarantor shall have
assumed all of the obligations of the Borrower under and in respect of
the Credit Documents by written instrument satisfactory to the
Administrative Agent and its counsel in their reasonable discretion,
accompanied by such opinions of counsel and other supporting documents
as they may reasonably require; (D) in the case of any merger,
consolidation, or transfer of assets to which NIPSCO or Columbia is a
party (other than a merger, consolidation or transfer of assets between
such Person and a Credit Party), NIPSCO or Columbia, as the case may
be, shall be the continuing or surviving corporation; (E) in the case
of any merger, consolidation or transfer of assets to which the
Guarantor is a party, the Guarantor shall be the continuing or
surviving corporation; and (F) the Index Debt shall be rated at least
BBB- by S&P and at least Baa3 by ▇▇▇▇▇'▇.
(c) SALES, ETC. OF ASSETS. Sell, lease, transfer or otherwise
dispose of, or permit any of their respective Subsidiaries to sell, lease,
transfer or otherwise dispose of (other than in connection with a transaction
authorized by paragraph (b) of this Section) any substantial part of its assets;
provided that the foregoing shall not prohibit any such sale, conveyance, lease,
transfer or other disposition that (i) constitutes realization on a Lien
permitted to exist under Section 6.01(a); or (ii) (A) (1) is for a price not
materially less than the fair market value of such assets, (2) would not
materially impair the ability of any Credit Party to perform its obligations
under this Agreement and (3) together with all other such sales, conveyances,
leases, transfers and other dispositions, would have no Material Adverse Effect,
or (B) would not result in the sale, lease, transfer or other disposition, in
the aggregate, of more than 10% of the consolidated total assets of the
Guarantor and its Subsidiaries, determined in accordance with GAAP, on September
30, 2003.
(d) COMPLIANCE WITH ERISA. (i) Terminate, or permit any ERISA
Affiliate to terminate, any Plan so as to result in a Material Adverse Effect or
(ii) permit to exist any occurrence of any Reportable Event (as defined in Title
IV of ERISA), or any other event or condition, that presents a material (in the
reasonable opinion of the Required Lenders) risk of such a termination by the
PBGC of any Plan, if such termination could reasonably be expected to have a
Material Adverse Effect.
(e) CERTAIN RESTRICTIONS. Permit any of its Subsidiaries (other
than, in the case of the Guarantor, the Borrower) to enter into or permit to
exist any agreement that by its terms prohibits such Subsidiary from making any
payments, directly or indirectly, to such Credit Party by way of dividends,
advances, repayment of loans or advances, reimbursements of management or other
intercompany charges, expenses and accruals or other returns on investment, or
any other agreement that restricts the ability of such Subsidiary to make any
payment, directly or indirectly, to such Credit Party; provided that the
foregoing shall not apply to prohibitions and restrictions imposed by this
Agreement or (i) (A) imposed under an agreement in existence on the date of this
Agreement, and (B) described on Schedule 6.01(e), (ii) existing with respect to
a Subsidiary on the date it becomes a Subsidiary that are not created in
contemplation thereof (but shall apply to any extension or renewal of, or any
amendment or modification expanding the scope of, any such prohibition or
restriction), (iii) contained in agreements relating to the sale of a Subsidiary
pending such sale, provided that such prohibitions or restrictions apply only to
the Subsidiary that is to be sold and such sale is permitted hereunder, (iv)
imposed on a Project
34
Financing Subsidiary in connection with a Project Financing, or (v) that could
not reasonably be expected to have a Material Adverse Effect.
ARTICLE VII
FINANCIAL COVENANTS
So long as any Lender shall have any Commitment hereunder or any Letter
of Credit shall remain outstanding, the Guarantor shall:
SECTION 7.01. INTEREST COVERAGE RATIO. Maintain an Interest Coverage
Ratio of not less than 1.75 to 1.00 for each period of four consecutive fiscal
quarters, commencing with the four fiscal quarters ended March 31, 2004.
SECTION 7.02. DEBT TO CAPITALIZATION RATIO. Maintain a Debt to
Capitalization Ratio of not more than 0.70:1:00.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01. EVENTS OF DEFAULT. If any of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Unreimbursed LC Disbursement when the same becomes due and payable or shall fail
to pay any interest, fees or other amounts hereunder within three days after
when the same becomes due and payable; or
(b) Any representation or warranty made by any Credit Party herein
or by any Credit Party (or any of its officers) in connection with this
Agreement shall prove to have been incorrect in any material respect when made;
or
(c) Any Credit Party shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(e), 5.01(f), 5.01(h), 5.01(i),
6.01 or Article VII; or
(d) Any Credit Party shall fail to perform or observe any term,
covenant or agreement contained in this Agreement on its part to be performed or
observed (other than one identified in paragraph (a), (b) or (c) above) if the
failure to perform or observe such other term, covenant or agreement shall
remain unremedied for thirty days after written notice thereof shall have been
given to the Borrower by the Administrative Agent or any Lender; or
(e) The Guarantor, the Borrower or any of their respective
Subsidiaries shall fail to pay any principal of or premium or interest on any
Indebtedness (excluding Non-Recourse Debt) which is outstanding in a principal
amount of at least $50,000,000 in the aggregate of the Guarantor, the Borrower
or such Subsidiary, as the case may be, when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace period,
if any, specified in the agreement or instrument relating to such Indebtedness;
or any other event shall occur or condition shall exist under any agreement or
instrument relating to any such Indebtedness and
35
shall continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the scheduled maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and payable,
or required to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof; or an "Event of Default"
shall occur and be continuing under (and as defined in) the Bank Credit
Agreement; or
(f) Any Credit Party shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors; or
any proceeding shall be instituted by or against any Credit Party seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its property and, in the case of any such
proceeding instituted against any Credit Party (but not instituted by any Credit
Party), either such proceeding shall remain undismissed or unstayed for a period
of 60 days, or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, any Credit Party or
for any substantial part of its property) shall occur; or any Credit Party shall
take any corporate action to authorize any of the actions set forth above in
this paragraph (f); or
(g) One or more Subsidiaries of the Guarantor (other than any
Credit Party) in which the aggregate sum of (i) the amounts invested by the
Guarantor and its other Subsidiaries in the aggregate, by way of purchases of
Capital Stock, Capital Leases, loans or otherwise, and (ii) the amount of
recourse, whether contractual or as a matter of law (but excluding Non-Recourse
Debt), available to creditors of such Subsidiary or Subsidiaries against the
Guarantor or any of its other Subsidiaries, is $100,000,000 or more
(collectively, "SUBSTANTIAL SUBSIDIARIES") shall generally not pay their
respective debts as such debts become due, or shall admit in writing their
respective inability to pay their debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be instituted
by or against Substantial Subsidiaries seeking to adjudicate them bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of them or theft respective debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for them or for any
substantial part of their respective property and, in the case of any such
proceeding instituted against Substantial Subsidiaries (but not instituted by
any Subsidiary of the Guarantor), either such proceeding shall remain
undismissed or unstayed for a period of 60 days, or any of the actions sought in
such proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other similar
official for, the Substantial Subsidiaries or for any substantial part of their
respective property) shall occur; or Substantial Subsidiaries shall take any
corporate action to authorize any of the actions set forth above in this
paragraph (g); or
(h) Any judgment or order for the payment of money in excess of
$50,000,000 shall be rendered against the Borrower, the Guarantor or any of its
other Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or
36
order or (ii) there shall be any period of 30 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(i) Any ERISA Event shall have occurred with respect to a Plan
and, 30 days after notice thereof shall have been given to the Guarantor or the
Borrower by the Administrative Agent, (i) such ERISA Event shall still exist and
(ii) the sum (determined as of the date of occurrence of such ERISA Event) of
the Insufficiency of such Plan and the Insufficiency of any and all other Plans
with respect to which an ERISA Event shall have occurred and then exist (or, in
the case of a Plan with respect to which an ERISA Event described in clauses
(iii) through (vi) of the definition of ERISA Event shall have occurred and then
exist, the liability related thereto) is equal to or greater than $10,000,000
(when aggregated with paragraphs (j), (k) and (l) of this Section), and a
Material Adverse Effect could reasonably be expected to occur as a result
thereof; or
(j) The Guarantor or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability
to such Multiemployer Plan in an amount which, when aggregated with all other
amounts required to be paid to Multiemployer Plans by the Guarantor and its
ERISA Affiliates as Withdrawal Liability (determined as of the date of such
notification), exceeds $10,000,000 or requires payments exceeding $10,000,000
per annum (in either case, when aggregated with paragraphs (i), (k) and (l) of
this Section), and a Material Adverse Effect could reasonably be expected to
occur as a result thereof; or
(k) The Guarantor or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
if as a result of such reorganization or termination the aggregate annual
contributions of the Guarantor and its ERISA Affiliates to all Multiemployer
Plans which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan year of each such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an amount
exceeding $10,000,000 (when aggregated with paragraphs (i), (j) and (l) of this
Section), and a Material Adverse Effect could reasonably be expected to occur as
a result thereof; or
(l) The Guarantor or any ERISA Affiliate shall have committed a
failure described in Section 302(f)(1) of ERISA and the amount determined under
Section 302(f)(3) of ERISA is equal to or greater than $10,000,000 (when
aggregated with paragraphs (i), (j) and (k) of this Section), and a Material
Adverse Effect could reasonably be expected to occur as a result thereof; or
(m) Any provision of the Credit Documents shall be held by a court
of competent jurisdiction to be invalid or unenforceable against any Credit
Party purported to be bound thereby, or any Credit Party shall so assert in
writing; or
(n) Any Change of Control shall occur;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitment of each
37
Lender and the obligation of the LC Bank to issue or maintain Letters of Credit
hereunder to be terminated, whereupon the same shall forthwith terminate, and
(ii) shall at the request, or may with the consent, of the Required Lenders, by
notice to the Borrower, declare all amounts payable under this Agreement to be
forthwith due and payable, whereupon all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower;
provided that in the event of an actual or deemed entry of an order for relief
with respect to any Credit Party under the Federal Bankruptcy Code, (1) the
Commitment of each Lender and the obligation of the LC Bank to issue or maintain
Letters of Credit hereunder shall automatically be terminated and (2) all such
amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower.
Notwithstanding anything to the contrary contained herein, no notice
given or declaration made by the Administrative Agent pursuant to this Section
8.01 shall affect (i) the obligation of the LC Bank to make any payment under
any outstanding Letter of Credit in accordance with the terms of such Letter of
Credit, or (ii) the obligations of each Lender in respect of each such Letter of
Credit; provided, however, that upon the occurrence and during the continuance
of any Event of Default, the Administrative Agent shall at the request, or may
with the consent, of the Required Lenders, upon notice to the Borrower, require
the Borrower to deposit with the Administrative Agent an amount in the cash
account (the "CASH ACCOUNT") described below equal to the then current LC
Outstandings. Such Cash Account shall at all times be free and clear of all
rights or claims of third parties. The Cash Account shall be maintained with the
Administrative Agent in the name of, and under the sole dominion and control of,
the Administrative Agent, and amounts deposited in the Cash Account shall bear
interest at a rate equal to the rate generally offered by Barclays for deposits
equal to the amount deposited by the Borrower in the Cash Account pursuant to
this Section 8.01, for a term to be agreed to between the Borrower and the
Administrative Agent. If any drawings then outstanding or thereafter made are
not reimbursed in full immediately upon demand or, in the case of subsequent
drawings, upon being made, then, in any such event, the Administrative Agent may
apply the amounts then on deposit in the Cash Account, in such priority as the
Administrative Agent shall elect, toward the payment in full of any or all of
the Borrower's obligations hereunder as and when such obligations shall become
due and payable. Upon payment in full, after the termination of the Letters of
Credit, of all such obligations, the Administrative Agent will repay to the
Borrower any cash then on deposit in the Cash Account.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.01. THE ADMINISTRATIVE AGENT.
(a) Each of the Lenders and the LC Bank hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof, together with such
actions and powers as are reasonably incidental thereto.
38
(b) The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the any Credit Party or any of
such Credit Party's Subsidiaries or other Affiliates thereof as if it were not
the Administrative Agent hereunder.
(c) The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (i) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (ii) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Required Lenders,
and (iii) except as expressly set forth herein, the Administrative Agent shall
not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower, the Guarantor or any of its
other Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders or in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until written notice
thereof is given to the Administrative Agent by the Borrower or a Lender, and
the Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (1) any statement, warranty or representation made in
or in connection with this Agreement, (2) the contents of any certificate,
report or other document delivered hereunder or in connection herewith, (3) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (4) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreement, instrument or document, or
(5) the satisfaction of any condition set forth in Article III or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent and the conformity thereof to such express
requirement.
(d) The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for a Credit Party) independent
accountants and other experts selected by it and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
(e) The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective
39
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
(f) Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, with the consent of the
Borrower (which consent shall not unreasonably be withheld), to appoint a
successor. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New York,
or an Affiliate of any such bank, in any event having total assets in excess of
$500,000,000 and who shall serve until such time, if any, as an Agent shall have
been appointed as provided above. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 11.03 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
(g) Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
(h) No Lender identified on the signature pages of this Agreement
as a "Lead Arranger", or that is given any other title hereunder other than "LC
Bank" or "Administrative Agent", shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than those
applicable to all Lenders as such. Without limiting the generality of the
foregoing, no Lender so identified as a "Lead Arranger", or that is given any
other title hereunder, shall have, or be deemed to have, any fiduciary
relationship with any Lender. Each Lender acknowledges that is has not relied,
and will not rely, on the Lenders so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
40
ARTICLE X
GUARANTY
SECTION 10.01. THE GUARANTY.
(a) The Guarantor, as primary obligor and not merely as a surety,
hereby irrevocably, absolutely and unconditionally guarantees to the
Administrative Agent and the Lenders and each of their respective successors,
endorsees, transferees and assigns (each a "BENEFICIARY" and collectively, the
"BENEFICIARIES") the prompt and complete payment by the Borrower, as and when
due and payable, of the Obligations, in accordance with the terms of the Credit
Documents. The provisions of this Article X are sometimes referred to
hereinafter as the "GUARANTY".
(b) The Guarantor hereby guarantees that the Obligations will be
paid strictly in accordance with the terms of the Credit Documents, regardless
of any law now or hereafter in effect in any jurisdiction affecting any such
terms or the rights of the Beneficiaries with respect thereto. The obligations
and liabilities of the Guarantor under this Guaranty shall be absolute and
unconditional irrespective of: (i) any lack of validity or enforceability of any
of the Obligations or any Credit Document, or any delay, failure or omission to
enforce or agreement not to enforce, or the stay or enjoining, by order of
court, by operation of law or otherwise, of the exercise of any right with
respect to the foregoing (including, in each case, without limitation, as a
result of the insolvency, bankruptcy or reorganization of any Beneficiary, the
Borrower or any other Person); (ii) any change in the time, manner or place of
payment of, or in any other term in respect of, all or any of the Obligations,
or any other amendment or waiver of or consent to any departure from the Credit
Documents or any agreement or instrument relating thereto; (iii) any exchange or
release of, or non-perfection of any Lien on or in any collateral, or any
release, amendment or waiver of, or consent to any departure from, any other
guaranty of, or agreement granting security for, all or any of the Obligations;
(iv) any claim, set-off, counterclaim, defense or other rights that such
Guarantor may have at any time and from time to time against any Beneficiary or
any other Person, whether in connection with this transaction or any unrelated
transaction; or (v) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Borrower or any other guarantor or
surety in respect of the Obligations or such Guarantor in respect hereof.
(c) The Guaranty provided for herein (i) is a guaranty of payment
and not of collection; (ii) is a continuing guaranty and shall remain in full
force and effect until the Commitments and Letters of Credit have been
terminated and the Obligations have been paid in full in cash; and (iii) shall
continue to be effective or shall be reinstated, as the case may be, if at any
time any payment, or any part thereof, of any of the Obligations is rescinded or
must otherwise be returned by any Beneficiary upon or as a result of the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower or otherwise, all as though such payment had not been made.
(d) The obligations and liabilities of the Guarantor hereunder
shall not be conditioned or contingent upon the pursuit by any Beneficiary or
any other Person at any time of any right or remedy against the Borrower or any
other Person that may be or become liable in respect of all or any part of the
Obligations or against any collateral security or guaranty therefor or right of
setoff with respect thereto.
41
(e) The Guarantor hereby consents that, without the necessity of
any reservation of rights against such Guarantor and without notice to or
further assent by such Guarantor, any demand for payment of any of the
Obligations made by any Beneficiary may be rescinded by such Beneficiary and any
of the Obligations continued after such rescission.
(f) The Guarantor's obligations under this Guaranty shall be
unconditional, irrespective of any lack of capacity of the Borrower or any lack
of validity or enforceability of any other provision of this Agreement or any
other Credit Document, and this Guaranty shall not be affected in any way by any
variation, extension, waiver, compromise or release of any or all of the
Obligations or of any security or guaranty from time to time therefor.
(g) The obligations of the Guarantor under this Guaranty shall not
be reduced, limited, impaired, discharged, deferred, suspended or terminated by
any proceeding or action, voluntary or involuntary, involving the bankruptcy,
insolvency, receivership, reorganization, marshalling of assets, assignment for
the benefit of creditors, composition with creditors, readjustment, liquidation
or arrangement of the Borrower or any similar proceedings or actions, or by any
defense the Borrower may have by reason of the order, decree or decision of any
court or administrative body resulting from any such proceeding or action.
Without limiting the generality of the foregoing, the Guarantor's liability
shall extend to all amounts and obligations that constitute the Obligations and
would be owed by the Borrower, but for the fact that they are unenforceable or
not allowable due to the existence of any such proceeding or action.
SECTION 10.02. WAIVERS.
(a) The Guarantor hereby unconditionally waives: (i) promptness
and diligence; (ii) notice of or proof of reliance by the Administrative Agent
or the Lenders upon this Guaranty or acceptance of this Guaranty; (iii) notice
of the incurrence of any Obligation by the Borrower or the renewal, extension or
accrual of any Obligation or of any circumstances affecting the Borrower's
financial condition or ability to perform the Obligations; (iv) notice of any
actions taken by the Beneficiaries or the Borrower or any other Person under any
Credit Document or any other agreement or instrument relating thereto; (v) all
other notices, demands and protests, and all other formalities of every kind in
connection with the enforcement of the Obligations, of the obligations of the
Guarantor hereunder or under any other Credit Document, the omission of or delay
in which, but for the provisions of this Section 10 might constitute grounds for
relieving the Guarantor of its obligations hereunder; (vi) any requirement that
the Beneficiaries protect, secure, perfect or insure any Lien or any property
subject thereto, or exhaust any right or take any action against the Borrower or
any other Person or any collateral; and (vii) each other circumstance, other
than payment of the Obligations in full, that might otherwise result in a
discharge or exoneration of, or constitute a defense to, the Guarantor's
obligations hereunder.
(b) No failure on the part of any Beneficiary to exercise, and no
delay in exercising, any right, remedy, power or privilege hereunder or under
any Credit Document or any other agreement or instrument relating thereto shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder or under any Credit Document or any
other agreement or instrument relating thereto preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
This Guaranty is in addition to and not in limitation of any other rights,
remedies, powers and privileges the
42
Beneficiaries may have by virtue of any other instrument or agreement
heretofore, contemporaneously herewith or hereafter executed by the Guarantor or
any other Person or by applicable law or otherwise. All rights, remedies, powers
and privileges of the Beneficiaries shall be cumulative and may be exercised
singly or concurrently. The rights, remedies, powers and privileges of the
Beneficiaries under this Guaranty against the Guarantor are not conditional or
contingent on any attempt by the Beneficiaries to exercise any of their rights,
remedies, powers or privileges against any other guarantor or surety or under
the Credit Documents or any other agreement or instrument relating thereto
against the Borrower or against any other Person.
(c) The Guarantor hereby acknowledges and agrees that, until the
Commitments have been terminated and all of the Obligations have been paid in
full in cash, under no circumstances shall it be entitled to be subrogated to
any rights of any Beneficiary in respect of the Obligations performed by it
hereunder or otherwise, and the Guarantor hereby expressly and irrevocably
waives, until the Commitments have been terminated and all of the Obligations
have been paid in full in cash, (i) each and every such right of subrogation and
any claims, reimbursements, right or right of action relating thereto (howsoever
arising), and (ii) each and every right to contribution, indemnification,
set-off or reimbursement, whether from the Borrower or any other Person now or
hereafter primarily or secondarily liable for any of the Obligations, and
whether arising by contract or operation of law or otherwise by reason of the
Guarantor's execution, delivery or performance of this Guaranty.
(d) The Guarantor represents and warrants that it has established
adequate means of keeping itself informed of the Borrower's financial condition
and of other circumstances affecting the Borrower's ability to perform the
Obligations, and agrees that neither the Administrative Agent nor any Lender
shall have any obligation to provide to the Guarantor any information it may
have, or hereafter receive, in respect of the Borrower.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. NOTICES. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to any Credit Party, to it at:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇;
with a copy to such Credit Party at:
43
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Director Corporate Finance and Treasury
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇;
(b) if to the Administrative Agent or the LC Bank, to Barclays
Bank PLC at:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Sydney ▇. ▇▇▇▇▇▇, Power and Utilities Group
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to such party at:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇, Customer Service Unit
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to any Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any Party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.
SECTION 11.02. WAIVERS; AMENDMENTS. (a) No failure or delay by the
Administrative Agent, the LC Bank or any Lender in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent, the LC Bank and the Lenders hereunder are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of this Agreement or consent to any departure by any
Credit Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, no Extension of Credit
shall be construed as a waiver of any Default, regardless of whether the
Administrative Agent, the LC Bank or any Lender may have had notice or knowledge
of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower, the Guarantor and the Required Lenders or by the
Borrower, the Guarantor and the
44
Administrative Agent with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any
Unreimbursed LC Disbursements or reduce the rate of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender affected
thereby, (iii) extend the expiry date of any Letter of Credit to a date after
the Termination Date, postpone the scheduled date of payment of any fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender affected thereby, (iv) change Section 2.09(b) or (c) in a
manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, (v) release the Guarantor from its
obligations under the Guaranty, or (vi) change any of the provisions of this
Section or the definition of "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender; provided, further, that
no such agreement shall amend, modify or otherwise affect the rights or duties
of the Administrative Agent or the LC Bank hereunder without the prior written
consent of the Administrative Agent or the LC Bank, as the case may be.
SECTION 11.03. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the initial syndication of the credit facilities provided for herein, the
preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the LC Bank, including the
reasonable fees, charges and disbursements of counsel for the LC Bank, in
connection with the execution, delivery, administration, modification and
amendment of any Letters of Credit issued by it hereunder, and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, the LC Bank or any
Lender, including the fees, charges and disbursements of any counsel for the
Administrative Agent, the LC Bank or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Letters of
Credit deemed issued hereunder, including in connection with any workout,
restructuring or negotiations in respect thereof.
(b) The Borrower shall indemnify the Administrative Agent, the LC
Bank, each Lender, and each Related Party of any of the foregoing Persons (each
such Person being called an "INDEMNITEE") against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transaction contemplated hereby, (ii) any
Letter of Credit or the use of the proceeds therefrom, (iii) any actual or
alleged presence or release of Hazardous Materials on or from any property now,
in the past or hereafter owned or operated by the Borrower, the Guarantor or any
of its other Subsidiaries, or any Environmental Liability related in any way to
the Borrower, the Guarantor or any of its other Subsidiaries, or (iv) any actual
or prospective claim, litigation,
45
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent or the LC Bank under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or the LC Bank such Lender's Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent or the LC
Bank in its capacity as such.
(d) To the extent permitted by applicable law, each party hereto
shall not assert, and hereby waives, any claim against each other party, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later
than 20 days after written demand therefor.
SECTION 11.04. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby; provided that,
except to the extent permitted pursuant to Section 6.01(b)(iii)(C), no Credit
Party may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender and the LC Bank (and
any attempted assignment or transfer by a Credit Party without such consent
shall be null and void). Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Obligations at the time owing to it); provided
that (i) except in the case of an assignment to a Lender or an Affiliate of a
Lender, each of the Administrative Agent, the LC Bank and, so long as no Event
of Default is continuing, the Borrower must give its prior written consent to
such assignment (which consent, in the case of the Administrative Agent and the
Borrower, shall not unreasonably be withheld and, in the case of the LC Bank,
may be given or withheld in the sole discretion of the LC Bank), (ii) except in
the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender's Commitment,
the amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $5,000,000 unless
46
each of the Administrative Agent and, so long as no Event of Default shall be
continuing, the Borrower otherwise consent, (iii) each partial assignment shall
be made as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement, (iv) the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of $3,500, and (v)
the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire. Upon acceptance and recording pursuant to
paragraph (d) of this Section, from and after the effective date specified in
each Assignment and Acceptance, the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.07, 2.08 and 11.03), any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Obligations owing to, each Lender pursuant to the
terms hereof from time to time (the "REGISTER"). The entries in the Register
shall be conclusive (absent manifest error), and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "PARTICIPANT") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the
Obligations owing to it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Guarantors and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that
47
such Lender shall retain the sole right to enforce this Agreement and to approve
any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 11.02(b) that
affects such Participant. Subject to paragraph (f) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections 2.07
and 2.08 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.08 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.08 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.08(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such assignee for such Lender as a party hereto.
48
SECTION 11.05. SURVIVAL. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Extension of Credit. The provisions of Sections 2.07, 2.17 and 11.03 and Article
IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Obligations, the expiration or termination of the Commitments or the termination
of this Agreement or any provision hereof.
SECTION 11.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement, the
commitment letter relating to the credit facility provided hereby (to the extent
provided therein) and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 3.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 11.07. SEVERABILITY. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 11.08. RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, each Lender or the LC Bank or any Affiliate of
either is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender to or for the credit or the
account of any Credit Party against any of and all the Obligations now or
hereafter existing under this Agreement held by such Lender or the LC Bank,
irrespective of whether or not such Lender or the LC Bank shall have made any
demand under this Agreement and although such Obligations may be unmatured. The
rights of each Lender and the LC Bank under this Section are in addition to
other rights and remedies (including other rights of setoff) which such Lender
may have.
SECTION 11.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS.
(a) This Agreement shall be construed in accordance with and
governed by the internal laws of the State of New York.
49
(b) Each Credit Party hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against any Credit Party or its properties in the courts of any
jurisdiction.
(c) Each Credit Party hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 11.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 11.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 11.11. HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 11.12. CONFIDENTIALITY. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
50
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any assignee of
or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Borrower
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than a Credit Party or any Subsidiary of a Credit Party. For the purposes
of this Section, "INFORMATION" means all information received from any Credit
Party or any Subsidiary of a Credit Party relating to a Credit Party or any
Subsidiary of a Credit Party or their respective businesses, other than any such
information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by any Credit Party or any Subsidiary
of a Credit Party; provided that, in the case of information received from any
Credit Party or any Subsidiary of a Credit Party after the Effective Date, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
51
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
NISOURCE FINANCE CORP., as Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Voce President and Treasurer
NISOURCE INC., as Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Voce President and Treasurer
S-1
Signature Page to
4-Year Letter of Credit Reimbursement Agreement
BARCLAYS BANK PLC, as a Lender, as LC Bank
and as Administrative Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name:▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Associate Director
S-2
Signature Page to
4-Year Letter of Credit Reimbursement Agreement
EXHIBIT A
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the 4-Year Letter of Credit Reimbursement
Agreement dated as of February 13, 2004, among NiSource Finance Corp., a
Delaware corporation, as Borrower (the "BORROWER"), NiSource Inc., a Delaware
corporation ("NISOURCE"), as Guarantor (the "GUARANTOR"), the Lead Arranger and
other Lenders from time to time party thereto, and Barclays Bank PLC, as LC Bank
and as Administrative Agent thereunder. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
The Assignor named on Schedule 1 hereto (the "ASSIGNOR") and the
Assignee named on Schedule 1 hereto (the "ASSIGNEE") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), an interest as specified in Schedule 1
hereto (the "ASSIGNED INTEREST") in and to the Assignor's rights and obligations
under the Credit Agreement as described on Schedule 1 hereto (individually, an
"ASSIGNED FACILITY"; collectively, the "ASSIGNED FACILITIES"), in a principal
amount for each Assigned Facility as set forth on Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
Credit Document or with respect to the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or any
other instrument or document furnished pursuant thereto, other than that it is
the legal and beneficial owner of the Assigned Interest, that it has not created
any adverse claim upon the Assigned Interest and that the Assigned Interest is
free and clear of any such adverse claim; and (b) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower, the Guarantor or any of their respective Subsidiaries or the
performance or observance by the Borrower or the Guarantor of any of their
respective obligations under the Credit Agreement or any other Credit Document.
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into the Assignment and Acceptance; (b) confirms that it has
received a copy of the Credit Agreement, together with copies of the financial
statements referred to in Section 4.01 thereof and the most recent financial
statements referred to in Section 5.01 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (c) agrees that it will,
independently and without reliance upon the Assignor, the Administrative Agent,
the LC Bank or any other Lender and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Credit Agreement or any other Credit
Document; (d) appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
the Credit Agreement and
any other Credit Document as are delegated to the Administrative Agent by the
terms thereof, together with such powers as are incidental thereto; and (e)
agrees that it will be bound by the provisions of the Credit Agreement and will
perform in accordance with its terms all the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Lender.
4. The effective date of this Assignment and Acceptance shall be
as specified on Schedule 1 hereto (the "EFFECTIVE DATE"). Following the
execution of this Assignment and Acceptance, it will be delivered to the
Administrative Agent for acceptance by it and recording by the Administrative
Agent pursuant to Section 11.04 of the Credit Agreement, effective as of the
Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the execution
hereof).
5. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments with respect to
the Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignee. The Assignor and the Assignee shall make all
appropriate adjustments in payments by the Administrative Agent for periods
prior to the Effective Date or with respect to the making of this assignment
directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have (in addition to any rights and obligations theretofore held by
it) the rights and obligations of a Lender thereunder and shall be bound by the
provisions thereof, and (b) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement (other than any such rights which
expressly survive the termination thereof).
7. This Agreement may be executed in as many counterparts as may
be deemed necessary or convenient, and by the different parties hereto on
separate counterparts, each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
8. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE
INTERNAL LAWS OF THE STATE OF NEW YORK. THIS AGREEMENT IS SUBJECT TO SECTION
11.09 (CHOICE OF FORUM AND SERVICE OF PROCESS) AND SECTION 11.10 (WAIVER OF
TRIAL BY JURY) OF THE CREDIT AGREEMENT. THE PROVISIONS OF SUCH SECTIONS 11.09
AND 11.10 OF THE CREDIT AGREEMENT ARE INCORPORATED HEREIN BY REFERENCE IN FULL.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
Exhibit A-2
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Facility Assigned Principal Amount Assigned Commitment Percentage Assigned*
The terms set forth above and in the Assignment and Acceptance to which
this Schedule 1 is attached are hereby agreed to:
[Consented to and ]#/ Accepted for the
Recordation in the Register:
______________, as Assignor
By:__________________________
Name:
Title:
BARCLAYS BANK PLC,
As Administrative Agent and LC Bank
By:___________________________
Name:
Title:
______________, as Assignee
By:___________________________
Name:
Title:
-------------------
* If applicable.
# To be completed only if consents are required under Section 11.04(b).
Exhibit A-3
[Consented to]:
NISOURCE FINANCE CORP.,
As Borrower
By:___________________________
Name:
Title:
Exhibit A-4
EXHIBIT B
FORM OF OPINION OF ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
SCHEDULE 1.01.1
(4-Year Letter of Credit Reimbursement Agreement)
Names, Addresses, Allocation of Aggregate Commitment, and Applicable Percentages
of Lenders
DOMESTIC LENDING APPLICABLE
BANK NAME OFFICE COMMITMENT PERCENTAGE
----------------- ----------------------- ------------ ----------
Barclays Bank PLC ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ $100,689,865 100%
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SCHEDULE 1.01.2
(4-Year Letter of Credit Reimbursement Agreement)
LC Amounts
Actual Stated Amount of
Letters of Credit in Effect from Time to Time Effective Date for Stated Amount
--------------------------------------------- --------------------------------
$100,689,865 February 1, 2004
$99,411,409 March 1, 2004
$98,097,450 April 1, 2004
$97,100,109 May 1, 2004
$96,186,020 June 1, 2004
$95,289,497 July 1, 2004
$94,370,091 August 1, 2004
$93,347,471 September 1, 2004
$92,241,676 October 1, 2004
$90,904,123 November 1, 2004
$89,377,722 December 1, 2004
$87,826,483 January 1, 2005
$86,350,892 February 1, 2005
$84,836,215 March 1, 2005
$83,359,884 April 1, 2005
$82,101,866 May 1, 2005
$80,924,760 June 1, 2005
$79,766,932 July 1, 2005
$78,583,855 August 1, 2005
$77,297,230 September 1, 2005
$75,929,169 October 1, 2005
$74,326,948 November 1, 2005
$72,737,637 December 1, 2005
$71,021,060 January 1, 2006
$69,477,221 February 1, 2006
$67,900,559 March 1, 2006
$66,255,257 April 1, 2006
$64,830,122 May 1, 2006
$63,583,289 June 1, 2006
$62,357,608 July 1, 2006
$61,004,040 August 1, 2006
$59,646,533 September 1, 2006
$58,109,495 October 1, 2006
$56,035,615 November 1, 2006
$53,876,571 December 1, 2006
$51,187,549 January 1, 2007
$48,666,859 February 1, 2007
$46,120,407 March 1, 2007
$43,497,460 April 1, 2007
$41,196,779 May 1, 2007
Actual Stated Amount of
Letters of Credit in Effect from Time to Time Effective Date for Stated Amount
--------------------------------------------- --------------------------------
$38,971,472 June 1, 2007
$36,669,438 July 1, 2007
$34,436,559 August 1, 2007
$31,929,311 September 1, 2007
$29,484,687 October 1, 2007
$26,830,216 November 1, 2007
$24,092,758 December 1, 2007
$21,222,285 January 1, 2008
$18,516,137 February 1, 2008
$15,762,650 March 1, 2008
$12,953,204 April 1, 2008
$10,368,361 May 1, 2008
$7,955,632 June 1, 2008
$5,568,538 July 1, 2008
$4,647,304 August 1, 2008
$3,721,223 September 1, 2008
$2,820,166 October 1, 2008
$1,875,913 November 1, 2008
$951,100 December 1, 2008
SCHEDULE 2.01
(4-Year Letter of Credit Reimbursement Agreement)
Letters of Credit
Face Amount as
Identification No. Issuing Bank Date Beneficiary of the Effective Date
------------------ ------------ -------- ----------------- ---------------------
SB00195 Barclays 08/13/02 Federal Insurance $56,100,000
Company
SB00196 Barclays 08/13/02 Federal Insurance $44,589,865
Company
SCHEDULE 6.01(e)
EXISTING AGREEMENTS
1. Lease Agreement, dated August 18, 2000, between ▇▇▇▇▇▇▇ ▇▇▇▇ Funding,
Limited Partnership and Ironside Energy LLC. ($61,440,000).
2. Lease Agreement, dated December 14, 1999, between Mattco Funding,
Limited Partnership and ▇▇▇▇▇▇▇ Clean Energy, Inc. ($261,000,000).
3. Lease Agreement, dated May 1, 1998, between Giffords Brook Funding,
Limited Partnership and Cokenergy, Inc ($115,500,000).
4. Lease Agreement, dated July 31, 1997, between Stormville Mountain
Funding, Limited Partnership and Portside Energy Corporation
($60,625,000).
5. Lease Agreement, dated September 24, 1996, between Depot Hill Funding,
Limited Partnership and Lakeside Energy Corporation ($59,232,000).
6. Indenture, dated August 1, 1939, as supplemented from time to time,
between Northern Indiana Public Service Company and ▇▇▇▇▇▇ Trust and
Savings Bank, as Trustees.
7. Revolving Credit Agreement, dated as of February 23, 1989, between
Northern Utilities, Inc. and The First National Bank of Boston
($10,000,000).
8. Northern Utilities, Inc. Note Agreement, dated as of January 1, 1992,
for the issuance of $13,000,000 principal amount of 9.70% Notes due
September 1, 2031.
9. Northern Utilities, Inc. Note Agreement, dated as of September 1, 1995,
for the issuance of $10,000,000 principal amount of 6.93% Senior Notes,
Series A, due September 1, 2010, and $5,000,000 principal amount of
6.30% Senior Notes, Series B, due September 1, 1998.
10. Term Loan Agreement by and between I.W.C. Resources Corporation and
KeyBank National Association, dated August 7, 1996 ($5,600,000).
11. $1,250,000,000 3-Year Revolving Credit Agreement, dated as of March 23,
2001 among the Borrower, the Guarantor, the lenders parties thereto and
Barclays Bank PLC, as administrative agent.